Constitutionality of Transitory Provision VI of Law 9544 — Judicial Branch Pension ReformConstitucionalidad del Transitorio VI de la Ley 9544 — Reforma Pensiones Poder Judicial

Font size: Grande Normal Pequeña Sala Constitucional Date of Resolution: December 13, 2023 at 15:00 Case File: 19-024589-0007-CO Type of Matter: Unconstitutionality action Constitutional Control: Dismissive judgment Analyzed by: SALA CONSTITUCIONAL Judgment with Dissenting Vote Judgments from the same case file Content of Interest:

Strategic Themes: Constitution Type of Content: Majority vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: PENSION Subtopics:

NOT APPLICABLE.

PENSION. REFORM TO THE PENSION REGIME OF THE JUDICIAL BRANCH Case File: 19-024589-0007-CO Judgment: 32259-23 of December 13, 2023 Type of Matter: Unconstitutionality action Challenged Norm: Transitory Provision VI of the Law for the Reform of the Retirement and Pension Regime of the Judicial Branch. No. 9544 Operative Part: By majority, the accumulated actions are declared WITHOUT MERIT. Magistrate Cruz Castro dissents, declares the action with merit and considers that to be in accordance with Constitutional Law, the transitory regime should have covered judicial servants who had twenty years or more of service in the Judicial Branch. Magistrates Salazar Alvarado and Picado Brenes dissent and declare the action partially with merit, considering that there is an unconstitutional omission in not addressing a twenty-four-month transitory period in accordance with actuarial background.

ANALYZED THEMES Violation of Article 167 of the Constitution and Article 208 bis of the Legislative Assembly, due to lack of consultation of the modified text with the Judicial Branch and lack of publication Violation of Article 167 of the Constitution and Article 208 bis of the Legislative Assembly, for being approved without a qualified majority.

Regarding the allegation of violation of judicial independence due to the creation of the Retirement and Pension Board of the Judicial Branch Regarding the allegation of violation of Article 26 of the American Convention on Human Rights and the principle of progressivity.

Regarding the allegations of violation of the right to a dignified, proportional, and reasonable pension Regarding the allegations of violation of the principle of equality Regarding the origin of the reform to the pension regime of the Judicial Branch, carried out through Law No. 9544.

Regarding the right to a pension and retirement as fundamental rights, and the possible limitations.

OF THE CONSTITUTIONALITY OF TRANSITORY PROVISION VI OF THE LAW FOR THE REFORM OF THE RETIREMENT AND PENSION REGIME OF THE JUDICIAL BRANCH, LAW NO. 9544.

REGARDING THE 18-MONTH PERIOD PROVIDED IN TRANSITORY PROVISION VI OF LAW NO. 9544.

WHAT IS THE CURRENT SITUATION OF THE RETIREMENT AND PENSION REGIME OF THE JUDICIAL BRANCH.

WHAT ARE THE CONSEQUENCES OF DECLARING THIS UNCONSTITUTIONALITY ACTION WITH MERIT.

REGARDING CONSOLIDATED LEGAL SITUATIONS AND ACQUIRED RIGHTS.

PRINCIPLE OF LEGITIMATE CONFIDENCE.

VIOLATION OF THE PRINCIPLES OF REASONABLENESS AND PROPORTIONALITY RIGHTS IN THE PROCESS OF ACQUISITION THE ALLEGED VIOLATION OF INTERNATIONAL TREATIES AND I.L.O. CONVENTIONS.

THE VIOLATION OF THE PRINCIPLE OF EQUALITY.

VIOLATION OF THE DEMOCRATIC PRINCIPLES, SOLIDARITY, LEGAL CERTAINTY, GOOD FAITH, EQUITY, TRANSPARENCY, RELATIVE INTANGIBILITY OF PATRIMONY, NON-CONFISCATION, AND EQUALITY BEFORE PUBLIC BURDENS.

“…In short, it must be reiterated that the majority of this Court, in the supra-cited judgment No. 2021-11957, already resolved that the reform to the retirement regime of the Judicial Branch – carried out through Law No. 9544 of April 24, 2018 – and, in general, the modification of the requirements and conditions imposed on judicial servants to qualify for ordinary and early retirement, far from being arbitrary, capricious, unfounded, or discriminatory, was due to the real need to guarantee the solvency of the Retirement and Pension Fund of the Judicial Branch, as well as that such changes were made within “the legitimate constitutional framework of action of the legislator in retirement matters,” based on an “adequate technical support.” The majority of this Court concluded that such modifications in the requirements and parameters for the granting of retirements - both ordinary and early - of judicial servants were constitutionally valid, as reasonable and proportionate measures to guarantee the solvency, stability, and permanence of the fund, in attention to the technical criteria provided to the respective legislative file. It indicated, in summary:

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

In full consonance with the above, it must be insisted - once again - that the 18-month period provided in the challenged transitory provision is not only based - reasonably - on the extensive jurisprudence of this Court on this topic, but also on the technical criteria incorporated into the legislative file and, ultimately, is coherent or congruent with the ultimate goal of the reform, to guarantee the financial soundness of the regime and the right to retirement of judicial servants…” Telf5585 ... See more Citations of Legislation and Doctrine Related Judgments Content of Interest:

Type of Content: Majority vote Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 050- Environment Subtopics:

NOT APPLICABLE.

Topic: 056- Work Subtopics:

NOT APPLICABLE.

Topic: 074- Inalienability of social rights Subtopics:

NOT APPLICABLE.

ARTICLES 50, 56 AND 74 OF THE POLITICAL CONSTITUTION. “…Articles 50, 56 and 74 of the Political Constitution configure the model of the social and democratic State of Law. As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law “entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discrimination.” Consequentially and based on the Social State of Law, our Political Constitution contemplates a set of benefit rights related to the protection of workers, such as the right to retirement…” CO08/24 ... See more Content of Interest:

Type of Content: Majority vote Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 073- Social security. Caja Costarricense de Seguro Social Subtopics:

NOT APPLICABLE.

ARTICLE 73 OF THE POLITICAL CONSTITUTION. “…The model of the Social State of Law and the concept of social security adopted by our Political Constitution includes the right in favor of workers to obtain a retirement after fulfilling certain normatively established conditions. This is one of the forms of expression of the fundamental right to social security enshrined in our constitutional regulations, to which are added health insurance, the different types of contributory retirements, as well as non-contributory ones, among others.

-Retirement constitutes the economic benefit obtained after working and contributing to a specific regime for a determined period, and whose purpose is to guarantee a dignified life for the person, after their stage as a worker ends.

-The right to a pension must be classified as a fundamental right; thus, the Chamber declares that there is indeed a constitutional and fundamental right to retirement, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution…” CO08/24 RIGHT TO RETIREMENT. “…the right to a pension is not unrestricted, as it can be subjected to certain limitations, provided that these are established by formal law, are reasonable, and do not impede its exercise (or affect its essential content). The right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are also reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than an expression of a well-known principle of Human Rights Law, which can be called proportionality and is generally included as a sine qua non condition of the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them (see resolutions No. 2018-19030, No. 2379-96, No. 1147-90).

-The right to retirement can be subjected to limitations, like any other fundamental right. The foregoing implies that a person does not have a right to retire under specific conditions, as these can be varied when necessary to guarantee the existence of a specific pension and retirement regime, because otherwise, conditions could be created that make the system financially unsustainable, which, ultimately, would lead to the right to retirement being severely affected, or its exercise not being entirely possible, due to the lack of funds preventing the payment of the retirement amount to the interested party. Clearly, such limitations must be established by formal law, must be reasonable, and cannot impede its exercise (or affect its essential content)…” CO08/24 ... See more Content of Interest:

Type of Content: Majority vote Branch of Law: 2. PRINCIPLES WITH JURISPRUDENCE Topic: Legitimate confidence Subtopics:

NOT APPLICABLE.

PRINCIPLE OF LEGITIMATE CONFIDENCE. “…legitimate confidence is a concept coined in German Law (Vertrauensschutz), where it has constitutional status, derived from the principle of legal certainty and, in other legal systems, also from the principle of good faith. This principle is of old date. Indeed, the Court of Justice of the European Communities (CJEC), despite it not being enshrined in the Constitutive Treaties, recognized it in 1973 in the matter of civil service (Case 81/1972 of June 5). For its correct interpretation and application, according to doctrine, certain requirements are demanded: 1) that there be an action by the community authorities that justifies the legitimate expectations of the affected parties (and, in this sense, a legal measure as well as an illegal one that confers benefits, administrative practices, promises made, erroneous information supplied, surprising regulatory changes, etc., are possible), 2) the expectations of the person that have a subjective basis must, where appropriate, be recognized and considered by an external observer and be capable, in that way, of acquiring an objective basis and dimension such that they become what the Court calls “founded hopes” not contrary to Community Law; and 3) it is necessary that in the assessment of the interests of the affected person in contrast with the public interest at stake, the latter is not preponderant…” CO08/24 ... See more Content of Interest:

Type of Content: Majority vote Branch of Law: 6. LAW OF CONSTITUTIONAL JURISDICTION ANNOTATED WITH JURISPRUDENCE Topic: 014- Submission of the Chamber Subtopics:

NOT APPLICABLE.

ARTICLE 14 OF THE LAW OF CONSTITUTIONAL JURISDICTION. “…nevertheless, this Chamber is constitutionally obligated to resolve the matters submitted to its knowledge, without circumstances such as those now presented - lack of the Regular and Alternate Magistrates necessary to integrate the Chamber - enervating that obligation or relieving this Court of its fulfillment. Therefore, according to the provisions of Article 14 of the Law of Constitutional Jurisdiction and Article 29, subsection 2), of the Organic Law of the Judicial Branch - “When the cause covers regular and alternate members, the case must be heard by the regular members, notwithstanding the cause and without disciplinary liability regarding them” -, it corresponds to the regular magistrates to hear these matters by legal imperative, without disciplinary liability reaching them for this. The foregoing constitutes, then, a normative justification cause that releases from all liability, including criminal, the magistrates who hear a matter in which the alternate magistrates, necessary to integrate the Court, have some cause for recusal or impediment to hear the same matter…” CO08/24 ... See more Content of Interest:

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

NOT APPLICABLE.

VIII.- DISSENTING VOTE OF MAGISTRATE CRUZ CASTRO.- The variation of the conditions of the retirement regime must respond to criteria of reasonableness and proportionality, according to technical criteria.

In accordance with the reasons indicated below, I consider that this action must be declared with merit. I consider that to be in accordance with Constitutional Law, the transitory regime should have covered judicial servants who had twenty years or more of service in the Judicial Branch. I further deem that the bill that gave rise to the law in question contains substantial procedural and substantive defects.

A. The absence of technical criterion in the legislative decision violates the constitutional principle of technical reasonableness.

The plaintiffs are right in their allegations; in this case, there has been a procedural violation due to the lack of a technical criterion to proceed with a time limit in a restrictive transitory norm regarding the right to a pension (violation of the constitutional principle of technical reasonableness), and additionally with this, a violation of the principles of the right to a pension, the principle of progressivity, and the principle of equality; all as explained below. There must be prudence and good judgment from the legislative power when reforming retirement systems, because this is one of the neuralgic components of the social state.

1.-) In constitutional jurisprudence, this Chamber has been issuing several resolutions establishing the bases of what is understood by the Constitutional Principle of Technical Reasonableness, defined as the proportionality between the chosen means and the proposed ends, which allows preventing the law from being irrational, arbitrary, or capricious, but also, that the selected means have a real and substantial relationship with its object (see resolution No. 1992-1739[1][[1]], No. 2018-15966[2][[2]], No. 2021-11957[3][[3]], among others). Said principle is thus constituted as a constitutional parameter (see resolution No. 2001-732[4][[4]]). A parameter that allows concluding that the absence of technical criterion constitutes an essential defect in the legislative procedure (see resolution No. 2012-13367[5][[5]] and No. 2017-11714[6][[6]], the latter when indicating: “this Tribunal has demanded in environmental matters the need for there to be technical studies to reduce protected areas, and has concluded that this omission constitutes a defect of an essential nature in the legislative procedure.”). The principle of technical reasonableness applies both to powers of the Executive Branch (see resolution No. 2023-012575[7][[7]] where it was considered that Decree 43810 “Reforma Reglamento de Personas Refugiadas,” by establishing a maximum period of one month to submit the application for international protection as a refugee, from the day of their entry into Costa Rican territory, accredited a transgression of the principles of reasonableness, proportionality, and necessity) and to the Legislative Branch (see resolution No. 2017-11714 where it was considered that the bill “Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional,” legislative file number 17,561, was unconstitutional ... since it lacks a study that technically and scientifically determines the real impact ... a defect that was considered of an essential nature in the legislative procedure) and regarding several matters, including environmental matters (see on the constitutional principle of objectification of environmental protection or principle of linkage to science and technique in resolutions No. 2022-23307[8][[8]] of 1:40 p.m. on October 25, 2022, No. 2010-000075[9][[9]] of 3:01 p.m. on January 6, 2010, No. 2012-013367[10][[10]] of 11:33 a.m. on September 21, 2012, No. 2013-005964[11][[11]] of 3:05 p.m. on April 30, 2013, and No. 2018-007978[12][[12]] of 12:45 p.m. on May 18, 2018).

It has been established that, in certain matters, legislative powers must be linked to the univocal rules of science or technique, elementary principles of justice, logic, or convenience. This constitutes a limit on the arbitrary exercise of legislative powers. Clearly, it is not that a technical study is required in all cases of the legislative function, as that would empty the principle of free configuration of the legislator of its content. Not all decisions of the legislator must contemplate a technical study, since such a situation would nullify the discretionary power of the legislative body, subjecting it to the criterion of third parties who lack democratic representation. However, this Chamber has specified that in certain matters that technical or scientific study is necessary, and therefore, it has been understood that the requirement of such technical support is part of the constitutional principle of technical reasonableness. Thus, this Chamber has said that “Technical studies are necessary when there is an express norm in this regard (for example, in environmental matters) or when the matter requires them, under penalty of transforming discretion into arbitrariness.” (see resolution No. 2018-00230[13][[13]] of 10:40 a.m. on January 19, 2018). Now, concerning the matters where it is required, besides environmental matters, one can indicate, for example, the application of the principle of technical reasonableness in pension matters; see in this regard resolution No. 2017-11714, where the following was established regarding the bill “Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional,” legislative file number 17,561:

“In this matter, it is necessary for the Asamblea Legislativa to have technical studies that demonstrate that the entry into force of the Law will not affect (…)” (emphasis not in the original) Likewise, since resolution No. 2379-96, this Chamber had already been applying the mandatory nature of technical support for modifications to pension regimes:

“… that possibility of modification that the State has agreed in its favor finds limits not only from the Political Constitution but also from International Law, among which stand out those set forth in Convention Number 102 of the International Labour Organization concerning the minimum standard of social security, which indicates, in what is relevant here, that the benefits granted in application of the cited Convention and the administrative expenses are supported by technical studies and are not implemented or modified by a political, arbitrary, or whimsical decision of the Administration, benefits among which is the amount of the contribution for the pension regime by the employee and the State as such and as employer, and which obliges the basing of those variations on actuarial studies related to the solvency of the regime being affected.”[14][[14]] (emphasis not in the original) Furthermore, this Chamber has indicated that all regressive measures for the right to a pension and retirement require technical studies and, additionally, that the burden of proof for such studies falls on the public powers. This has been indicated in reiterated jurisprudence:

“XV. (…) it is the public powers who bear the burden of proving that the cuts are justified in light of the set of socio-economic rights, and that in the event that an administration has the need to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects that these may have on the rights of the affected parties and the regime, as well as that there are no less burdensome measures that could have been taken, (…)” (see resolution No. 2018-5758[15][[15]], criterion ratified in resolutions No. 2021-11957[16][[16]], No. 2022-8712[17][[17]], No. 2022-10593[18][[18]]).

According to what this Chamber indicated (see resolution No. 2019-00234[19][[19]]), all the foregoing also finds support in Article 71.3 of Convention 102 of the International Labour Organization (ILO) when it indicates that each State has the responsibility to guarantee that any modification to social security benefits has a prior actuarial study:

“Article 71 (…)

3. The Member shall accept general responsibility for the due provision of the benefits provided in compliance with this Convention and shall take all measures required for this purpose; it shall ensure, where appropriate, that the necessary actuarial studies and calculations concerning financial equilibrium are made periodically and, in any event, prior to any change in benefits, the rate of insurance contributions, or the taxes allocated to covering the contingencies in question.” Likewise, this Chamber referred to what was resolved by the European Committee of Social Rights of the Council of Europe and the Colombian Constitutional Court, in cases where the adoption of regressive measures in the field of ESCR (economic, social, and cultural rights) is admitted, indicating that:

“XXVIII.- Magistrate Araya García continues drafting. (…) the constitutional conformity of measures cutting or modifying conditions in pension matters requires that prior to the determination and as an inescapable part of their justification, one must have the technical support on the effects of the measures, and the affected parties must have been heard because it concerns the income they receive currently, as a means of subsistence and on which a large part of their life project and their right to a dignified old age is based.” (resolution No. 2021-11957) In reinforcement of what this Chamber indicated regarding the technical burden of proof as an obligation of the State, there is also the case Nombre80021, No. 12,249 of the Inter-American Commission on Human Rights, where it was said:

“105. It should be noted that the progressive development of economic, social, and cultural rights (ESCR) entails for the States parties to the American Convention the obligation not to take regressive measures regarding such rights. In particular, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has indicated that regressive measures adopted in relation to the right to health are not permissible. (…) Likewise, the Committee held that the State in question has the burden of proving that those measures are duly justified by reference to the totality of the rights enunciated in the Covenant in relation to the full utilization of the maximum available resources of the State Party.” (see United Nations, Committee on Economic, Social and Cultural Rights, General Comment 3: The nature of States parties' obligations, paragraph 1 of article 2 of the Covenant, adopted at the Fifth Session, 1990) 2.-) Assuming the premises that have been set out, upon examining the law challenged in this action, it should be noted that this Chamber has already examined a similar allegation raised against the entirety of the law. In this regard, this Chamber made a GENERAL assessment of said technical support in resolution No. 2021-11957, where the arguments of unconstitutionality presented against the entire Law No. 9544 were examined. Thus, for example, in Considerando XXVIII, the following was stated: “the normative proposal agreed upon by the Asamblea Legislativa received the endorsement of the technical entity, which indicated the technical propriety of that design finally adopted through report IICE-186-2017…”. Later, regarding the technical support for the reference salary for calculating the pension, it determined that: “contrary to what is stated in the initial brief, there is indeed a technical criterion that endorses the parameter set by the bill with respect to the reference salary for the calculation of the pension; the Tribunal dismisses the existence of the alleged defect.” (see resolution No. 2021-11957). Now, it is necessary to express TWO important observations on the topic:

-Firstly, the technical support to which the Chamber alludes was for a bill that was NOT the one finally approved. Observe the dates of each of the six technical opinions of the “Estudio actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” carried out by the Instituto de Investigaciones en Ciencias Económicas (IICE): opinion 1 of August 4, 2016, opinion 2 of November 14, 2016, opinion 3 of February 1, 2017, opinion 4 of March 24, 2017, opinion 5 of May 22, 2017, and opinion 6 of July 4, 2017. The foregoing, in comparison with the date of the first debate held during extraordinary session No. 14 of October 30, 2017, the text of which incorporated several substantive and reiteration motions that varied its content.

-Secondly, this Chamber has NOT made any PARTICULAR consideration regarding the technical criterion that supports Transitory Provision VI of the challenged law, referring to those who could remain covered by the regime prior to the reform. Thus, that actuarial study by IICE does NOT specifically refer to the regressive measure adopted in the transitory provision questioned in this action, as it indicates in this regard: “An increase in the transitory period postpones the adjustments and therefore negatively affects the Fund's income. To adequately assess the effect of an increase in this transitory period, it would be necessary to carry out a complete actuarial analysis.” (see page 73 of product No. 6, IICE). Thus, it is verified that no technical study was conducted to assess the increase in the transitory period, a situation that prevented verifying whether there was another less burdensome measure than the one adopted in said transitory provision. Therefore, what was indicated by this Chamber, in the sense that the law in question had a technical study, does NOT apply specifically to the transitory provision.

Furthermore, from what occurred at the hearing held for this action (on October 5, 2023), it was demonstrated that the questioned Transitory Provision lacked any technical criterion. This is evidenced by the following:

“The IICE study analyzed the actuarial situation of the Fondo de Jubilaciones y Pensiones del Poder Judicial (FPJPJ) according to the situation in force as of December 31, 2015” (official communication IICE-103-2023 of June 9, 2023, delivered to the Chamber on June 9, 2023). “The results of the IICE study of the Universidad de Nombre2042 present the possible actuarial effects of various proposals, with information up to December 2015. However, the reform in Law 9544 was not evaluated in any of these analyses” (Official communication Acta de Comisión Adhoc EMat-50-2023 of August 11, 2023, provided to the Chamber on August 25, 2023). In an official communication from the UCR delivered to the Chamber on October 5, 2023, it is stated:

“In this sense, we wish to reaffirm what was stated by the Escuela de Matemática in the sense that the cited law did not adhere at the time to any actuarial model to establish the transitory provision that is being challenged.” Therefore, it would be necessary to model if one wanted to have certainty of the technical safety to establish said transitional provision" 3.-) Another aspect that requires the analysis of the technical reasonableness of Transitory Provision VI refers to an important principle: the burden of proof for restrictive or regressive measures of social rights must come from the Public Administration itself, in this case, from the Legislative Assembly. While it is true this Chamber indicated that: "a declaration of unconstitutionality in this case requires the provision of elements of judgment that manage to demonstrate the absence of proportionality and reasonableness of using the 18-month period set by constitutional jurisprudence from the effective date of the reform, for the extension of the coverage scope of the previous pension regime." (Resolution No. 2021-11957). However, if one intends to be consistent with what was established in previous jurisprudence, I consider it clear that, on the one hand, the technical criterion should have been available prior to the approval of Transitory Provision VI (as stated in the aforementioned Vote No. 2021-11957: "the constitutional conformity of measures cutting or modifying conditions in pension matters requires that prior to the determination and as an unavoidable part of its foundation, there must be technical support regarding the effects of the measures."), and on the other hand, the burden of proof should have been provided by the Legislative Assembly, which was not done, because no such technical criterion exists and they acknowledged this. Public authorities are the ones who bear the burden of proving that the cuts are justified in light of the set of socioeconomic rights, and that in the event that an administration has the need to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects that these may have on the rights of those affected and the regime, as well as that there are no less burdensome measures that could have been taken. It is verified that the Assembly did not have a specific technical criterion for the challenged Transitory Provision VI, according to the response to the evidence requested by this Chamber and to the specific question to the President of the Parliamentary Body:

"Sala Constitucional de la Corte Suprema de Justicia. San José, at ten forty-five hours on the twenty-sixth of May, two thousand twenty-three.

As evidence for better resolution, request:

• A)In view of the report of the President of the Legislative Assembly … it is requested: Indicate and provide to this Chamber, specifically, the technical criterion on which the Legislative Assembly based itself to establish the 18-month period indicated in Transitory Provision VI of the Law Reforming the Retirement and Pension Regime of the Judicial Branch, No. 9544. Where the reasonableness of that period is demonstrated.

(…)

The undersigned… in my capacity as President of the Legislative Assembly of the Republic of Costa Rica, present, in time, the required report (…)

In the specific case of Transitory Provision VI of Law 9544, the legislator provides an 18-month period, … after the broad analysis that the legislator performs according to the discussion of the bill recorded in the minutes… it is considered that the 18-month period is reasonable since it is neither an excessively short nor excessively long period. // The attribution of this period responds to the attribution that the Legislative Assembly has in the exercise of its function of enacting laws… where it enjoys broad freedom of conformation to develop the constitutional program set by the Constituent Power.

(…)

It is considered that in the consulted case, the Assembly took into consideration that it was not an arbitrary, capricious, or untimely period, but rather a reasonable period..." This must be understood as such, despite the fact that this Chamber in Resolution No. 2021-11957 indicated that: "the final legislative decision to recognize only contributors with 28 and a half years of service the possibility of retiring under the previous regime, did form part of the necessary technical requirements that were taken into account to design the modifications that would provide financial support to the Retirement and Pension Regime of the Judicial Branch. // Likewise, the 18-month period was widely supported by technical criterion, not only for reasons of legal certainty according to constitutional jurisprudence, but also for reasons of actuarial solvency." So it must be understood, because it is evident from the requested evidence and the legislative file that, there was NO technical criterion to support the period of the challenged transitory provision, but rather, the legislative body itself was the one that considered the established period reasonable for "not being excessively short nor excessively long," under the support of legislative discretion. It is evident that affirming that it is neither excessively short nor excessively long is a judgment that only responds to an appreciation that seems like common sense, but which is far from a technical criterion that responds to an analysis of all the variables at play, especially in a case where rights in the process of consolidation are restricted or modified.

4.-) Any regressive measure of social rights, of the right to a pension and retirement, must have a technical study that meets the following requirements:

-Be prior to the approval of the rule.

-Demonstrate the effects that the regressive measures may have on the rights of those affected.

-Demonstrate that there are no less burdensome measures that could have been taken.

Note also that, the Chamber has established as a reference parameter to examine the constitutional legitimacy of a regressive measure of ESCR (economic, social and cultural rights) these other substantive criteria:

*analyze whether the restriction of rights is “suitable” or “adequate”, *analyze whether it is “necessary” or “indispensable”, *analyze whether it is “proportionate” in the strict sense or “balanced” *determine that there are no other means to achieve the pursued end with the same efficacy that are less onerous in terms of sacrifice of the constitutional rights susceptible to limitation in each case or, in other words, that there is no other means that can lead to the end and that sacrifices to a lesser extent the constitutional principles affected by the use of those means. In the words of the Inter-American Court, it must be verified if “(…) the restriction of the affected rights is equivalent to the benefits that the provision generates. If the damage produced on the legal patrimony of the citizens is greater than the constitutional benefit that the rule is capable of achieving, then it is disproportionate (…).” 5.-) It is observed from the legislative file, that initially there was a staggered transitory provision, but later, in the Legislative Plenary through a substantive motion, an 18-month transitory provision was left, without greater technical support. It is also observed that the legislative file does not record how many people were close to retiring, nor how the change in circumstances would affect them, reasons for which the absence of an assessment of the impact of the regressive measure is verified. Thus, the first conclusion that I consider emerges from all the above, is that upon verifying that there was NO technical criterion that supported Transitory Provision VI challenged here, it is clear that the previous requirements were also not met: neither were the effects of the measure on the rights of those affected demonstrated; nor that said measure was the least burdensome of those that could have been taken; nor that it was suitable, necessary, or proportionate; much less that the damage produced to the legal patrimony of those affected was less than the constitutional benefit that the rule would achieve. Therefore, by not having, specifically, the challenged Transitory Provision, a technical criterion that supports having established an 18-month period, this causes the rule to violate a procedural requirement, and for this reason, it is unconstitutional in form. A restriction and a variation of the conditions to acquire a right as important as retirement is produced, without the technical support that would justify such modification. Unlike what is considered in the vote of Name3382 of this Chamber when it indicates that: "an 18-month period is reasonably sufficient to protect those persons who have not yet met the requirements to acquire the right to a pension or retirement…", I consider that it is not possible for this court to substitute the legislator by indicating generically and forever that an 18-month period in the transitory provisions of laws that reform pension regimes is reasonable, because the transitory period requires specific, individualized technical support. In matters that affect fundamental rights, a period cannot be defined, in the abstract, without taking into account the circumstances of each reform. This criterion responds to a logic of common sense, which is not the acceptable parameter in the protection of the right to retirement of judicial officials. The jurisprudence of the Constitutional Chamber where the 18-month period is mentioned cannot be considered as the only parameter to examine the reasonableness and proportionality of transitory regimes. Note that in any case, that jurisprudence is generic, and cannot be considered to apply the same period to all cases of transitory regimes. The criterion applied in the vote of Name3382 ignores the singularity of the case under examination and derives a general rule, ignoring that in the cases where it was applied, there are differences that do not allow deriving a conclusion like the one it assumes, ignoring that the premises of each precedent are different. The analysis of reasonableness and proportionality must be casuistic, attending to the particular situations of each reform. A conclusion cannot be assumed if it is not congruent with the premises.

On the other hand, what is indicated in the vote of Name3382 about the 18-month period having technical support in the report issued by the Institute of Research in Economic Sciences of the University of Name2042 (IICE), on July 4, 2017, called Product 6 "Compilation and final report: conclusions and recommendations", is also not acceptable, given that:

a. Said report (dated July 2017) was the technical support for the text in force at that time, which is NOT the text finally approved in October 2017 (where in the Plenary it underwent important substantive modifications through motions, specifically, that was where the 18-month transitory provision was established).

b. Said report can only be understood as support for the text of the bill at that moment and not the one that was finally approved. If the text of the bill changed (in terms of conditions, age, amount, and others), it is logical that the solvency of the Fund would be greater than what existed when the technical report was issued. Thus, the conclusions reached with a 20-year transitory provision would be different.

c. Said report is incompatible with what was indicated by the representatives of the Pension Board of the Judicial Branch, both in the report rendered and in the hearing, where it is expressly indicated "there is no risk of insolvency of the Fund by including in the transitory provision those with 20 years, based on the fact that the Fund would have a solvency of almost 80% with an open population, compared to the IVM of the CCSS which has 50%, the Judicial Branch Fund thus being the one with the greatest solvency." The vote of Name3382 ignores this updated data and assumes the criterion of a report that did not respond to the reality of the time and the financial situation of the fund at present.

d. The official letter signed by the Superintendency of Pensions of October 2023 cannot be cited in a vote because SUPEN is not an intervening party in the action, and therefore, its statements could not be contextualized or even refuted in the hearing. It is a criterion that could not be confronted and discussed in the process of the action. The vote of Name3382 takes into account an opinion that was not confronted and refuted in the action or in the oral hearing.

e. The same report 6 indicates in the conclusions (page 73), that "To adequately assess the effect of an increase in this transitory provision, it would be necessary to carry out a complete actuarial analysis." 6.-) As proof that demonstrates that the established period has had burdensome effects on those affected, it is indicated in the report presented by the Supreme Court of Justice that:

-The number of resignations that have occurred from 2018 to date totals 750.

-The total number of people affected by the Law Reforming the Retirement and Pension Regime of the Judicial Branch is 1292, which represents 9.68% of the judicial personnel.

-The impact of the resignations that have occurred in the Judicial Branch is indisputable in terms of the costs associated with hiring and training new personnel.

-The most senior workers have to assume additional tasks to cover the responsibilities of the vacant position, increasing their workload and potentially affecting their performance.

-It is unavoidable that the change in conditions for retiring has had a negative impact on the physical and emotional health of a worker who was already planning their retirement and was prepared to do so. The additional stress and the physical and mental demand of prolonged work can increase the risk of chronic diseases and mental health problems.

-It is observed in the summary table that during the years close to the reform, a rebound in diagnoses for anxiety is seen; similarly, the increase in diagnoses related to depression conditions that emerge after the reform under analysis was implemented should draw attention. In relation to that topic, the workers have expressed feelings of frustration, demotivation, discomfort, sadness, apathy, hopelessness, anguish, among others. Furthermore, conditions of anxiety, depression, work-related stress, burned-out worker syndrome, among others, are treated.

In this sense, it is clear that it has not been demonstrated that the established period was the least burdensome that could have been established, making it unreasonable and disproportionate, in addition to being an unsuitable and unnecessary period. Especially if compared with other periods established in transitory provisions of other laws, namely:

7.-) Although having declared the unconstitutionality of a procedural defect -as is the case here, the absence of a technical criterion to establish a restrictive measure of the right to a pension- is sufficient for the granting of this action. Although this makes it unnecessary for me to refer to the rest of the substantive arguments indicated by the plaintiffs, I consider that we are also facing other violations of Constitutional Law, such as: violation of the right to a pension in the process of acquisition of the persons who were excluded from the transitory provision without technical criterion, a right derived from International Human Rights Law, violation of the principle of legitimate expectations (principio de confianza legítima), violation of the right to equality, as indicated below.

B.-) Regarding how the rights in the process of acquisition were violated The plaintiffs indicate that the automatic application of such a severe transitory provision, never before applied to any group with consolidated legal situations in retirement matters, is contrary to Constitutional Law, for which reason they request that the unconstitutionality be declared and their represented parties be allowed to retire under the conditions prior to said reform, given the amount of time they have belonged to the regime in question. They further add that other retirement reforms have had a staggered transitory provision that has allowed them to modulate their retirement expectations, a situation that has not been permitted in the Judicial Branch. They also indicate that other constitutional courts recognize the right to differentiated treatment for people who are close to acquiring retirement requirements and who face a legislative modification, for which reason the application of comparative law is requested. Thus, they consider that it is not only based on a protection of the retirement right that occurs when the factual assumptions established by the rules are met, but that, in addition, rights in the process of acquisition are recognized and protected, which, according to the proximity to the moment of achieving the right, require protection or safeguarding from the State. The Procuraduría General de la República (PGR) indicates that, in our system, only the acquired right to retirement is recognized when all the requirements have been met, while the misnamed "right of belonging" is nothing more than a simple expectation, which is extinguished with the reform or repeal introduced by the new legislation that is enacted. It adds that, although constitutional jurisprudence has recognized that, in the case of contributory pension regimes, contributions originate a "right of belonging," this does not make the rules of the system unmodifiable. For its part, the President of the Legislative Assembly states that, what is alleged by the plaintiffs is not pertinent, regarding Law 9544 contradicting what is established in the conventions of the International Labour Organization. It adds that the Constitutional Chamber, when resolving the consultative vote, did not find that Law 9544 affected acquired rights and consolidated legal situations. Nor does it consider that a violation of the International Covenant on Civil and Political Rights, or the International Covenant on Economic, Social and Cultural Rights has occurred, since the law does not affect social security rights. The injury to the principles of transparency, legal certainty, good faith, legitimate expectations (confianza legítima), relative intangibility of patrimony, non-confiscation, and respect for acquired rights and consolidated legal situations is also rejected. In the opinion of the Supreme Court of Justice, on the three occasions the Court was consulted, a negative opinion was issued and it opposed the consulted bill, because it affects the organization and functioning of the Judicial Branch. They consider that the right to retirement should have been safeguarded with a reasonable, fair transitory provision, supported by technical and objective criteria.

In this regard, I consider that the plaintiffs are correct in their arguments, and a violation of the right to a pension in the process of acquisition, a right derived from International Human Rights Law, has occurred in this case; all as explained below. The significance of retirement requires specific protection when that right is in the process of consolidation. That condition cannot be ignored by protecting only the acquired right and leaving without protection the slow process in which the official will reach, after years, such condition.

Traditionally, it has been understood that Article 34 of the Constitution protects “acquired rights (derechos adquiridos)” and “consolidated legal situations (situaciones jurídicas consolidadas).” However, by reason of what is established by International Human Rights Law related to the right to work, we can add another constitutionally protected concept, the concept of “rights in the process of acquisition (derechos en vías de adquisición).” In general terms, the concepts can be defined as follows:

In all these cases, the constitutional parameter protects, making it intangible for the legislator, the situation of the person who obtained the right (acquired right (derecho adquirido)), of the person who enjoys the situation (consolidated legal situation (situación jurídica consolidada)), or of the person who will soon enjoy it (right in the process of acquisition (derecho en vías de adquisición)), for reasons of equity and legal certainty. Regarding rights in the process of acquisition, there is diverse international legislation.

Thus, the Multilateral Central American Social Security Convention (San José), approved by Name2042 through Law No. 5333 of August 22, 1973, Article 27 establishes:

"Article 27: 1º.- In case of denunciation of this Convention, every right acquired by virtue of its provisions shall be maintained. 2º.- The rights in the process of acquisition, relating to periods completed prior to the date on which the denunciation becomes effective, shall not be extinguished by the mere fact of the denunciation; their conservation shall be determined by agreement or, failing agreement, by the legislation corresponding to the competent Institution." The Convention relating to the Status of Refugees, approved by Name2042 through Law No. 6079-A of August 29, 1977, in Article 24:

"Article 24: 1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals with respect to the following matters:

(…)

• b)Social security (legal provisions concerning work-related accidents, maternity, sickness, invalidity, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security plan), subject to the following limitations: i) Possibility of adequate provisions for the conservation of acquired rights and of rights in the process of acquisition; (…)." Which is also recognized as a maxim, according to Article 7 of ILO Convention 118 called the Equality of Treatment (Social Security) Convention, 1962, according to which:

"Article 7 1. The Members for which this Convention is in force shall endeavour to participate, (…) in a system for the conservation of acquired rights and of rights in the process of acquisition, recognized under their legislation by the nationals of the Members (…)" (emphasis not in original) Likewise, Article 30 of ILO Convention 128, called the Invalidity, Old-Age and Survivors' Benefits Convention, 1967, according to which:

"Article 30: The national legislation shall, under prescribed conditions, make provision for the conservation of rights in course of acquisition with respect to contributory invalidity, old-age and survivors' benefits." (emphasis not in original) Furthermore, from Article 6 of ILO Convention 157, called the Maintenance of Social Security Rights Convention, 1982 (No. 157):

"Article 6 Subject to the provisions of paragraph 3(a) of Article 4 of this Convention, each Member shall endeavour to participate with each of the other Members concerned in a system for the conservation of rights in course of acquisition with respect to each branch of social security mentioned in paragraph 1 of Article 2 of this Convention for which there is legislation in force in each of these Members, in favour of persons who have been successively or alternately subject to the legislations of those Members." (emphasis not in original).

Regarding the value of international conventions not ratified by Costa Rica, the value of international human rights instruments must be remembered. The Constitutional Chamber, from early jurisprudence of the 1990s, indicated that Article 48 of the Constitution -reformed in 1989- had created a new category of norms: international human rights instruments, which have a rank, not only superior to laws (by virtue of Article 7) but also superior to the Political Constitution, to the extent that they provide greater protection of human rights (see Resolutions 1147-90, 3805-92, and also 1739-92, 3435-92, 2313-95,[20][[]20]. However, even those international human rights instruments that have not been approved by Costa Rica have been considered as part of the parameter or block of constitutionality.

Thus it has been said:

"In this regard, we must rescue the specific reference that the Constitution now makes to 'international instruments', meaning that not only conventions, treaties, or agreements formally signed and approved in accordance with the constitutional procedure itself … but any other instrument having the inherent nature of human rights protection, even if it has not undergone that procedure, is in force and applicable in the country. Thus, the Universal Declaration of Human Rights (Paris, December 10, 1948), by its character and nature, has not required the constitutional approval procedures to be understood as in force and with the normative force granted by the subject matter it regulates. The same can be said of the 'Standard Minimum Rules for the Treatment of Prisoners' of the United Nations, which, although they are the product of expert meetings or the work of some department of that organization, because our country belongs to it, and because they refer to fundamental rights, have the same value as any international regulation that has been formally incorporated into Costa Rican domestic law." (judgment No. 2000-9685. Highlighting does not correspond to the original. See also judgment [21][4]) As this Chamber has stated in resolving another action related to the issue of pensions, this action of unconstitutionality has in the background economic, social, and cultural rights, very concrete human rights, which constitute issues that must be carefully analyzed and protected by this Constitutional Court, especially when dealing with the rights that accompany older adults at very important moments of their lives (see resolution No. 2020-19274, of 4:30 p.m. on October 7, [22][[]22]). By Judgment No. 2012-16628 of 4:30 p.m. on November 28, 2012 (ratified in previous judgment No. 2020-19274), this Chamber established, regarding international regulations on social security as a floor or minimum:

"The truth is that international regulations establish what social security jargon, in some ILO documents, calls the social floor or social protection floor as a minimum of fundamental obligations that could indeed be justiciable; there do exist legal obligations not fulfilled and enforceable domestically, or, once that is exhausted, internationally. […]" The Chamber has indicated that "there is a right to the maintenance of the protection that the insured person receives under national legislation, by belonging to a regime and especially declared upon fulfilling the necessary conditions and requirements for the enjoyment of a right of peaceful enjoyment." (see judgment No. 2020-19274). A right to the maintenance of protection that can be extended not only to the enjoyment of a declared right but also to the right to belong to a regime with the conditions and requirements agreed upon from the outset. This is also related to the constitutional principle of legitimate expectations (principio de confianza legítima), related to the principle of legal certainty and the principle of good faith, as it operates as a limit on public power that prevents violating the trust of the governed in the sense that it not be violated without a reasoned basis, protecting the stability of legal situations, of acquired rights, and of rights in the process of acquisition. This principle, applied to this case, means that while the change in retirement conditions and requirements may change by decision of the legislator (since there is certainly no right to the immutability of the legal order), unlike what was considered in the majority vote, I believe that such change must respect the rights in the process of acquisition of those who are close to fulfilling said conditions and requirements. In a matter as transcendental in the life of the working citizen, a legal distinction is required that captures the particularity of a situation of such relevance, which is the regime regulating the retirement process.

On the other hand, this Chamber has already stated that "the financial crisis is neither in itself nor can it be a justification for making regressive decisions." Furthermore, "the lack of resources cannot serve as a pretext for non-compliance with them [social rights]." (see judgment No. 2020-19274). Therefore, I do not consider it appropriate that the vote of Nombre3382 bases the regression of conditions associated with the pension right on the crisis of the pension regime. In the same sense that this Chamber stated in the referenced resolution (judgment No. 2020-19274), a limit on the legislative power to change the conditions of a pension regime must be understood, referring to the so-called "right of membership (derecho de pertenencia)," which also protects rights in the process of acquisition. As stated, regarding this concept of rights in the process of acquisition, the mentioned Article 7 of ILO Convention 118, Article 30 of ILO Convention 28, and Article 6 of ILO Convention 157, conventions which, although not approved by Costa Rica, form part of international human rights law, and therefore, part of our block or parameter of constitutionality. And this is not a matter of giving preponderance to particular interests over general ones, as indicated in the majority vote, but rather that the general interest, in its proper dimension, includes respect for rights in the process of acquisition. I do not consider it admissible to accept the argument that assumes financial crises are above fundamental rights; insofar as we consider it so, we would be admitting the imminent death of Constitutional Law, for in our days, practically everything can be justified by a fiscal crisis. And it is not that I am unaware that such crises exist, but rather that fundamental rights must always have supremacy over them, it being appropriate to hold accountable those who have led to such crises but not at the expense of social rights. In this sense, I cannot but disagree with the concept that the Nombre3382 of this Chamber has been indicating, regarding the possible social state governed by the rule of law (Estado social de derecho posible), a concept that constitutes a clear regression of what should be understood as a social state governed by the rule of law; even the Italian Constitutional Court has understood it this way in recital 11 of judgment 275/2016 when it is understood that budgetary balance cannot condition the satisfaction of human rights. Likewise, the judgment of the Colombian Constitutional Court (140/19) when it indicates that no public authority may invoke fiscal sustainability to undermine fundamental rights. It is worrying that such a vague and inexact concept as "possible social state governed by the rule of law" is postulated; that horizon, which appears as an entelechy, conditions the entire social state. There is no rule of law if we assume that social rights are only admissible if they are possible. That is, based on strictly fiscalist or economistic assessments, the sectors with less economic and political power see their social rights reduced, restricted, or suppressed. We must reflect deeply on these horizons that open the door to the devaluation and reduction of the social state, which includes, without a doubt, the issue of the retirement regime. Even more serious if they are restricted without a specific technical criterion appropriate to the specific case.

In Comparative Law, one observes, for example, the considerations made in this regard by the Colombian Constitutional Court, indicating that the legitimate expectations of those who aspire to retire under a specific regime must be the object of some protective consideration by the legislator, one of the ways of protecting legitimate expectations being the establishment of transitional regimes, which extend the scope of protection beyond only acquired rights (see judgments C-147 of March 19, 1997, and C-428 of July 1, 2009). Unlike what is indicated in the majority vote, which errs in indicating that in Colombia no term is set to guarantee rights in the process of acquisition, establishing it at 75% of contributions under the previous regime, see what was indicated in the judgment of the Constitutional Court of Colombia C-789 of September 24, 2002:

"3.3. The protection of the legitimate expectations of workers and the most favorable interpretation (…) By virtue of such protection, legislative transitions must be reasonable and proportional, and therefore, the subsequent law could not disregard the protection it has granted to those who, at the time the pension system came into force, had more than fifteen years of contributed work.

(…)

Therefore, it would be contrary to this principle of proportionality, and violatory of the constitutional recognition of work, that those who have completed 75% or more of the work time necessary to access a pension upon the entry into force of the pension system, pursuant to Article 151 of Law 100 of 1993 (April 1, 1994), end up losing the conditions under which they aspired to receive their pension.

To this extent, the Court will establish that paragraphs 4 and 5 of Article 36 of Law 100 of 1993 are valid provided it is understood that the paragraphs do not apply to persons who had 15 years or more of contributed work at the time the pension system established in Law 100 of 1993 came into force, pursuant to the provisions of Article 151 of the same statute.

(…)

Therefore, persons who had contributed for 15 years or more upon the entry into force of the pension system, and are in the defined-benefit average premium regime, shall have the right to have applied to them the conditions of time of service, age, and pension amount, established in the previous regime, provided that: (…)" (own highlighting) In the case of the right to retirement or pension, the following applies:

o The right to retirement or pension is a consolidated legal situation, which is acquired when the interested party meets all the requirements established by law.

o The right of membership to a retirement regime is the right to remain in a pension regime specific to the institution in which one works, as well as its defining elements or conditions. The right to belong to the regime implies the right not to be excluded, for its general parameters to be maintained. The pension right in the process of acquisition can be located here. This right ceases to be a mere expectation of a right and is acquired from the moment one enters the retirement regime (see s[23][[24]23] and No. 6491-98[[]24]). The case law has recognized that contributing to a pension regime creates a "right of membership to the regime," as stated, but does not make the system's rules unmodifiable" (see s[25][[]25]). So it is not a mere expectation of a right but has a higher degree of protection. The regime to which one belongs can certainly undergo reforms, but they are subject to certain limitations; basically, such reforms must have a technical basis and, in addition, must respect rights in the process of acquisition. Regarding the former, the corresponding information has already been indicated supra, and regarding the latter, it means that the legislator must take into account those rights in the process of acquisition in its transitional provisions.

Thus, this Chamber has previously indicated:

"… the right to retirement manifests itself first under the name and form of 'right of membership to the regime' from the official's entry into the system until the event consisting of fulfilling the requirements necessary to obtain the benefit occurs. Then, it sheds that guise to be called 'right to the current benefit,' once that indicated eventuality has occurred." (see re[26][[]26]).

It is important to emphasize the constitutional protection of the right to a pension, in its essential content. It is appropriate to exercise constitutional review of parliamentary activity and, consequently, of laws, for violating the principles of reasonableness and proportionality when they are linked to a fundamental right because this, in addition, emptied its essential content. This Chamber has already indicated (see resol[27][[]27]) that the right to retirement or pension is a consolidated legal situation, with rights in the process of acquisition being violated in the case of those officials who could technically have been included within the transitional provision and, despite this, were not. This does not mean that all contributors or all those belonging to the Judicial Branch pension regime had a consolidated legal situation in this case, but rather that it concerns the protection of the rights in the process of acquisition —derived from the right of membership— of those who, while they could technically be included within the transitional provision, were not included. The right of membership gives rise, in favor of contributors who were close to retiring, to protection of their rights in the process of acquisition under the more favorable conditions of the previous regime, rights constitutionally protected under Article 34 of the Constitution, but also under the protection of international human rights law. The challenged provision allowed this group of officials' rights in the process of acquisition —and thereby, their right to retire under the previous, more favorable regime— to be violated.

Clearly, it is not the same situation, nor the same constitutional protection, that persons who have just begun contributing to the Pension Fund have compared to those who have contributed for many years and are even a few years away from retiring. This distinction, so important in the protection of the right to retirement, is in no way made in the transitional provision discussed in this action. All of which also violates the principle of progressivity of fundamental rights, for the democratic legislator is limited by fundamental rights, as this Chamber has indicated:

"Fundamental Rights bind the legislator negatively and positively. In a negative sense, it must respect them to achieve their full effectiveness, that is, they function as a barrier or limit. In a positive sense, fundamental rights are, for the constituted legislator, a mandate, a guiding principle, or a program, so it must develop and configure them while respecting their essential content, that is, the minimum and non-disposable core – limit of limits – of each of these. The constituted legislator, when developing fundamental rights, must ensure their progressive intensification and extension of their efficacy and, in general, their full effectiveness, to avoid any regressive and restrictive regulation." (see reso[28][[]28]).

All of which finds its basis in Article 26 of the American Convention on Human Rights, and what this Chamber has established in that regard:

"Article 26 obliges the signatory States to take measures both internally and through international cooperation, for the purpose of progressively achieving the full effectiveness of the rights derived from the economic, social, educational, scientific, and cultural norms contained in the Charter of the Organization of American States." Resolution No. 1995-03932.

Nombre5650.-) On the effect that the declaration of unconstitutionality of the challenged transitional provision should have had In this controversy, I consider that the declaration of unconstitutionality cannot have the sole effect of annulling the entire provision, for what is unconstitutional is not having established a transitional provision but rather a term lacking a technical basis. For this reason, I incline towards annulling only the "eighteen-month" term established in Transitory Provision VI of the challenged law. Now, it is evident that annulling said term is insufficient for the protection of the fundamental rights involved here; the additional effects that this declaration of unconstitutionality would have must be indicated. Although this Chamber has indicated on previous occasions that it does not have "the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Pension and Retirement Fund," because this action and the hearing held contain technical elements that allow a solution to be elaborated, we proceed to indicate the term that must be understood to apply for Transitory Provision VI of the challenged law. The period established for availing oneself of early retirement is established as a reasonable parameter, namely, the term of 20 years or more of contributions to the regime, as this would be equivalent to having contributed 66% of the total term (which was 30 years). Said term allows respecting the rights in the process of acquisition and the right of membership of those who had contributed the Nombre3382 of the total term and were close to retiring. Moreover, it is proportional to the life plan, reasonable according to the financial sustainability of the Pension Fund, in respect of the principle of legitimate expectations (trust that conditions will not be abruptly changed, trust that the established rules will be respected and if [29][[]29]). Thus, I consider that the challenged Transitory Provision VI should be read as follows:

"Transitory Provision VI.- Judicial employees who, at the time this law enters into force, have twenty years or more of service in the Judicial Branch may retire under the provisions established in the text of Title IX of Law No. 7333 of May 5, 1993, according to the conditions in force before this reform." The technical basis for the indicated 20-year term is supported by the following technical criteria:

-The former President of the Fund's Administrative Board, Mr. Carlos Montero, in an appearance before the Full Court of the Judicial Branch (session No. 08-2021, of February 22, 2021, Article XVIII), stated that the Fund was in a position to assume the retirements under the conditions prior to the reform for persons who, at the time Transitory Provision VI entered into force, had 20 years or more of service in the Judicial Branch.

-Article 29 of ILO Convention No. 102 establishes a minimum period of 20 years of residence for granting a pension. Initially, this Chamber interpreted di[30][31][[]30] and No. 00-673[[]31]) understanding "residence" as membership in a regime, later changing its criterion, indi[32][[]32] that "residence" means habitual residence in the territory of the Member and the term "resident" designates the person who habitually resides in the territory of the Member. However, it is true that the 20-year parameter constitutes a valid and reasonable criterion for also understanding that 20 years may be the period of protection of membership in a regime to which one contributes.

-The Ibero-American Social Security Code (of the Ibero-American Social Security Organization O.I.S.S., signed by Nombre2042 in San Carlos de Bariloche, Argentina, in October 1995) establishes in its Article 50.1 a period of twenty years of contributions as the minimum period to guarantee an amount.

-Observing the term established in the transitional provision of other laws related to the Pension Fund, there is an average. For example, the National Teachers' Law established a term of 20 years of membership in the regime (Law No. 8536), while other laws establish a longer transitional period: 5 years for pensions charged to the National Budget (Law No. 9388), 54 months for the CCSS IVM (Regulation No. 8856); or even, simply having started contributing places them under the protection of the previous regulations in the case of TSE officials (see Transitory Provision II of Law No. 9544).

-The contribution percentage corresponding to 20 years of membership in the regime is 66% of the previous total term (30 years), which results in a majority percentage that exceeds half and is reasonable considering the life plan of someone who has already spent the Nombre3382 of their years of service contributing to a specific regime under specific conditions.

-The Transitory Provision, in its previous version (see committee opinion of July 27, 2017), established a term of 23 years and 6 months of service to be covered, in a staggered manner, by the previous pension regulations.

-According to the evidence for a better resolution, provided by the current Board of the Judicial Branch Pension and Retirement Fund, it is indicated that an increase of 10 years of service would cover 2759 people, and the fund's solvency ratio would go from 86.29% to 79.43%, dropping 7 percentage points, always maintaining the percentage within reasonableness, which according to what was indicated, is the case as long as the percentage remains at or above 70%.

-Attending to criteria beyond merely economic-financial ones, but rather of the order of social rights, this would be the greatest possible number of officials that the Pension Fund could accommodate with the pension conditions prior to the reform, and with it, more favorable to the person (principle of pro personae, principle of pro operario).

Finally, unlike what is done in the majority vote, I consider that Constitutional Courts must decide based on Constitutional Law, without ignoring the consequences of the rulings, but taking into consideration the effects on other fundamental rights. The issue of the consequences of the ruling is a matter of imprecise content; it must be specified more in its content and its derivations within the judgment itself. In this case, while there is an important issue regarding the consequences of the decision on the financial health of the retirement regime, such an evaluation requires a broader and more detailed analysis, a situation which, from my perspective, is not met in the majority vote. The consequences of a decision cannot eclipse the analysis and protection of other rights. In that balancing, I lean more towards the preeminence of the claimed rights than towards the consequences of the decision, without ignoring, as I have explained, that a decision favorable to the petitioners does not endanger the financial health of the Judicial Branch pension fund. In the case under review, not only must the financial health of the regime be evaluated, but also the effects of the challenged legislative decision on the sphere of the fundamental rights of those involved and on the democratic principles of the institution where they work.

Nombre8518.-) On the remaining procedural defects In the same sense as the dissenting vote to resolution number 2018-5758, signed by Justice Cruz Castro and other justices, and despite Justice Cruz not having participated in the vote that resolved specific allegations of legislative procedure violations in judgment No. 2021-11957, nor in the resolution that admitted this action, No. 2022-008712, we proceed to ratify the procedural defects that were considered therein to exist in the challenged Law No. 9544.

"XXIII.- Dissenting vote of Justices Cruz Castro, Salazar Alvarado, and Hernández Gutiérrez.

Justice Salazar Alvarado writes; and, Contrary to the criterion of the Nombre3382 of the Chamber, we consider that the bill called 'Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa', legislative file No. 19.922, presents defects of unconstitutionality that invalidate the consulted bill, according to the following considerations:

SOLE.- Defects in the legislative procedure.

a.- Text of the bill not consulted with the Supreme Court of Justice. Among the doubts of constitutionality raised by the petitioners is the lack of consultation with the Judicial Branch of the substitute text approved in the session of July 27, 2017, of the Special Committee. In the opinion of the deputies who raise the consultation, this bill contains a series of regulations that affect the organization and functioning of the Judicial Branch, which obliges it to be consulted with the Supreme Court of Justice, in accordance with the provisions of Article 167 of the Political Constitution. Specifically, they argue that Article 239 of the bill creates a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, which it defines as an organ of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions that the law grants it. Said Board is granted functional independence and assigned a series of competencies, such as raising the worker contribution to the Pension Fund, hearing retirement applications, to name a few, with which, in their understanding, a modification in the structure of the Judicial Branch is produced. Similarly, competencies are removed from the Consejo Superior del Poder Judicial, and, in addition, Article 240 of the bill confers on the Full Court the obligation to issue regulations for the election of the members of that Administrative Board, thus assigning it a competency it currently does not have. On the contrary, they clarify that the previous substitute texts were indeed consulted with the Supreme Court of Justice, so they consider it contrary to Constitutional Law that this did not occur with respect to this last text.

Precisely, at the base of the discussion, as is rightly stated in the majority vote, is the determination of whether, under the terms of Article 167 of the Political Constitution, the legislative body was or was not obliged to consult the cited bill with the Judicial Branch, a duty that, moreover, has been incorporated into Articles 126 and 127 of the Regulations of the Legislative Assembly, which stipulate the procedure to be observed for this purpose. From the constitutional text, it is inferred that the mandatory consultation with the Supreme Court of Justice is only such if the bill relates to the organization or functioning of the Judicial Branch. Thus, the crux of the matter lies in what is to be understood by 'organization or functioning of the Judicial Branch.' In this regard, the vote of Nombre3382 maintains that when the Fundamental Political Charter refers to the organization and functioning of the Judicial Branch, it refers -only- to the affectation of the jurisdictional function, and not the strictly administrative one. In support of this position, Judgments No. 1998-5958 of 2:54 p.m. on August 19, 1998, No. 2001-013273 of 11:44 a.m. on December 21, 2001, and No. 2008-5179 of 11:00 a.m. on April 4, 2008, are cited. Likewise, in relation to the specific issue of the Fondo de Pensiones y Jubilaciones del Poder Judicial and the obligation of the Legislative Assembly to consult with the Supreme Court of Justice on bills dealing with it, the vote of Nombre3382 cites Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, based on which it concludes that in these cases, the Legislative Assembly is not obliged to consult the bill with the Supreme Court of Justice under the terms established in Article 167 of the Constitution. However, in the opinion of the undersigned, such an interpretation of the constitutional provision, restricted solely to the jurisdictional function, does not derive from the text of the Fundamental Charter nor from the case law of this Chamber. Indeed, regarding the cited precedents, it is noteworthy that with respect to the first three judgments, what the majority maintains in its vote is not inferred from them. Thus, in Judgment No. 1998-5958 of 2:54 p.m. on August 19, 1998, only the term 'functioning' —of the binomial 'organization or functioning'— of the Judicial Branch is developed, without referring to the issue of the organization of that Branch of the Republic. Specifically, in the citation made of that vote, the Chamber clearly indicates that '...the matters that peremptorily require a consultation with the Supreme Court of Justice are those that refer "to the organization or functioning of the Judicial Branch," where the term "functioning" alludes not only to aspects of the internal administrative regime of judicial offices but also to procedural issues governing the substantiation of the various matters submitted to those courts' (highlighting added), which makes it evident that the issue of organization —which is what is at issue here— was not developed in said resolution, simply because the case did not require it, since it involved the mandatory legislative consultation on the bill for the 'Addition of a new Chapter IV, called "Del recurso de hábeas data", to Title III of the Ley de la Jurisdicción Constitucional, Law No. 7185 of October 19, 1989', which was processed in legislative file number 12.827, where the issue under discussion was that the reform affected the jurisdictional function of the Judicial Branch.

That this is so is clear from the text of the judgment itself, which is not cited with due breadth in the majority vote: “…the matters that mandatorily require consultation with the Supreme Court of Justice are those referring ‘to the organization or functioning of the Judicial Branch,’ where the term ‘functioning’ alludes not only to aspects of the internal administrative regime of judicial offices, but also to the procedural matters governing the processing of the various matters submitted to those courts. And, in Costa Rica, the constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Constitutional Jurisdiction Law integrate this Chamber within the structure of the Court.” Once the citation is placed in its context, it cannot be inferred that the Chamber restricted the binomial “organization or functioning” merely to the jurisdictional sphere; rather, in the cited case, this Constitutional Court referred only to the aspect of the jurisdictional function of the Judicial Branch, because that was the subject under discussion, without making any exclusion or referring to the topic of the administrative organization of said Branch of the Republic. The same can be said in relation to Judgment No. 2001-013273 of 11:44 a.m. on December 21, 2001, to which the majority alludes. This involved a facultative legislative consultation on constitutionality regarding the bill on the “Modification of the Penal Code, Law number 4573 and its amendments,” legislative file number 14.158. Again, it involved a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Hence, in this case as well, the Chamber did not develop this latter topic, as it would have been superfluous. That is why the substantive discussion focused on and was exhausted by the aspects of the jurisdictional function of the Judicial Branch: “…said consultation [that of Article 167 of the Political Constitution] is mandatory when what is being discussed in the Assembly is a bill that seeks to establish rules for the functioning and organization of the Judicial Branch, this being understood not only as provisions regulating the creation of courts of justice or jurisdictional competencies, but even those that provide for the manner of exercising said competencies, that is, regarding the way in which the Judicial Branch carries out its jurisdictional function, including strictly procedural rules” (the highlighting does not belong to the original). Certainly, it is evident that what was expressed was limited to examining matters relating to the exercise of the jurisdictional competencies of the Courts of Justice, since the consultation specifically addressed that particular aspect. But the Chamber did not say that this is the only extreme in which the consultation under numeral 167 of the Political Constitution is mandatory; rather, what it said is that, in that case, it is mandatory, without referring to other cases in which it is also mandatory, such as matters concerning the administrative organization and competencies of the Judicial Branch.

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

On the other hand, Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, which are cited in the vote of Name3382 as a basis for concluding that bills relating to the specific topic of the Judicial Branch Pension and Retirement Fund do not need to be consulted to the Supreme Court of Justice, likewise do not possess the virtue of providing the foundation that, in relation to this matter, the Name3382 of the Chamber claims they have.

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

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

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

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

“Article 8. Judicial Guarantees.

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation made against them, or for the determination of their rights and obligations of a civil, labor, fiscal, or any other nature.” (The bold is not from the original).

Judicial independence constitutes a fundamental principle within the Constitutional Rule of Law. But for that independence to be real, it must not only be organizational and functional but also economic. That economic independence is also guaranteed in Article 177 of the Political Constitution, by establishing that the ordinary budget bill must assign to the Judicial Branch at least 6% of the ordinary revenues calculated for the economic year. The intention of the original Constituent Power, with the enactment of this norm—which establishes a tied constitutional expenditure—is to guarantee, among other things, that judges and the rest of the auxiliary justice personnel have remuneration adequate to the complexity and difficulty of the jurisdictional function, which implies a retirement or pension also adequate to that and to the special prohibitions that said function entails for judicial servants, which do not weigh upon the public servants of the other Branches of the State. The constitutional norm prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in its full breadth, since the salaries of the adjudicators and auxiliary personnel, as well as the applicable pension and retirement regime, must strictly relate to the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, the economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliaries of justice, is essential in a Constitutional Rule of Law. Thus, one way to guarantee the independence of the Judicial Branch, of the Judges of the Republic, and of the auxiliaries of justice is with a decent retirement or pension, commensurate with their constitutional functions.

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

“The Judicial Branch is one of the three main pillars upon which the Government of the Republic rests; and it is from its servants, who perform highly delicate functions essential to the very life of Society, that greater education, probity, and dedication to work are demanded than from other employees. And that is surely why, when judicial servants are asked for complete dedication, for long years, to the extremely important task of administering justice—with the noble aim of ensuring their subsistence upon reaching old age or when, due to physical ailments, they can no longer work—the enactment of a law addressing that difficult situation of the officials and employees of the Judicial Branch has been repeatedly urged upon Congress during various legislative sessions.” It must not be overlooked that adjudicators and judicial civil servants in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigor than the regime of incompatibilities and prohibitions that affects the rest of public officials, which makes it of a completely different nature. The regulations that apply to administrative civil servants throughout the entire public sector cannot also be applied to judicial officials. In this sense, the constitutional principles of reasonableness and proportionality compel that this asymmetric regime of incompatibilities and prohibitions, which corresponds to the very nature of the jurisdictional and administrative functions, must have economic compensation, both in salary and at the end of the employment relationship. But also, the principle of equality, enshrined in Article 33 of the Political Constitution, implies the prohibition of treating unequal persons as equals, because this results in discrimination contrary to constitutional Law. In the case of judges and judicial officials, there are objective, reasonable, justified conditions grounded in the very nature of the jurisdictional function exercised, to give them treatment different from that of the rest of the public servants of the various administrations, whereby, far from incurring discrimination, the principle of equality regulated in the cited constitutional numeral is safeguarded. This means that if a differentiated retirement regime exists for the jurisdictional sector, this does not stem from an arbitrary, subjective, or capricious decision of the legislator, but from the specific and different nature of the jurisdictional function itself, which objectively and constitutionally justifies it.

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

“11. The law shall guarantee the tenure of judges for the established periods, their independence and security, as well as adequate remuneration, pensions, and conditions of service and retirement.” (The highlighting is not from the original).

Whereby, the United Nations recommends to all countries of the world that legal norms must guarantee judges adequate remuneration, pensions, conditions of service, and retirement that are proportionate to the complexity and difficulty of the jurisdictional function they exercise. This must be understood as also extending to auxiliary officials of justice, since, otherwise, such independence would be impossible.

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

“6.1 The professional exercise of judicial functions entitles the judge to remuneration, the level of which shall be determined with the aim of shielding the judge from pressures intended to influence their decisions and, more generally, their judicial conduct, thereby altering their independence and impartiality.

6.4 In particular, the statute shall ensure the judge who has reached the legal age for ceasing their functions, after having exercised them professionally for a specified period, the payment of a retirement pension the amount of which shall be as close as possible to their last judicial activity remuneration.” (The highlighting is not from the original).

The cited instrument seeks to achieve a genuinely and effectively independent Judicial Branch, which is a guarantee in favor of the citizenry. Thus, the adequate remuneration and pension of judges and auxiliaries of justice, in the terms expressed there, constitute the due and reasonable consequence of the exercise of a delicate function of great difficulty and responsibility.

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

“Art. 32. Remuneration.

Judges must receive sufficient, lifetime tenure (irreductible) remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” (The highlighting is not from the original).

And, in Article 33, it provides:

“Art. 33. Social Security.

The State must provide judges access to a social security system, guaranteeing that they will receive, upon completing their years of service due to retirement, illness, or other legally provided contingencies, or in the event of personal, family, or property damages arising from the exercise of their office, a decent pension or adequate compensation.” (The highlighting is not from the original).

It must be borne in mind that retirement and pension form part of the Economic, Social, and Welfare Rights contained in the International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification, and accession by the United Nations General Assembly in its resolution 2200 A (XXI) of December 16, 1966. These regulations have also been welcomed in Report No. 1 of November 23, 2001, rendered by the Consultative Council of European Judges (CCJE), when examining the topic of the independence and irremovability of judges. Regarding the topic of judges’ salaries, said Council recommended:

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

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

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

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

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

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

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

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

In this vein, the consulting parties, as stated supra, allege that Article 239 of the bill in question creates an Administrative Board of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), which it defines as an organ of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions granted to it by law, an organ to which functional independence is granted and a series of powers are assigned, among others, increasing the worker contribution to the Pension Fund and hearing retirement applications, which implies a modification in the structure of the Judicial Branch. Likewise, powers are subtracted from the Superior Council of the Judicial Branch; and, additionally, in Article 240 of the bill, the obligation is conferred upon the Full Court to issue regulations for the election of the members of that Administrative Board, thereby assigning it a power it does not currently have. The aforementioned articles of the bill stipulate:

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

The Board is responsible for:

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

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

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

It shall be financed by a commission for administrative expenses derived from deducting five per thousand of the salaries earned by judicial employees, as well as from the retirements and pensions borne by the Fund. These resources shall be used to pay the fees of the members of the Administrative Board, the salaries of its personnel, and, in general, its administrative expenses. Idle resources shall be invested in accordance with the provisions of Article 237 of this law.

Article 240- The Administrative Board shall be composed of three members who shall be democratically elected by the judicial collective, as well as three members appointed by the Full Court, with a gender perspective in both cases. Each full member shall have an alternate to replace them in their absence, who must meet the same requirements as the full member.

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

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

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

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

The following may not be members of the Board:

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

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

The same can be said regarding Article 240 of the bill under consultation, insofar as it addresses matters pertaining to the administrative organization of the Judicial Branch, concerning the composition and designation of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, their term of office, the designation of the person to preside over it, and the requirements for being a member of that Board, among others. It should be noted that even though the Full Court is empowered, by the Organic Law of the Judicial Branch, to issue the internal regulations necessary for the proper functioning of the Judicial Branch, the fact that, through the bill under consultation, it is imposed the obligation to regulate the duration of the terms of office of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, without the substitute text of the bill, which was finally approved in First Debate, having been consulted with the Supreme Court of Justice, implies a serious intrusion into the powers of the highest-ranking organ of the Judicial Branch, affecting the organization of that Branch of the Republic, in contravention of the mandatory consultation prescribed in Article 167 of the Political Constitution; and, therefore, an injury to judicial independence. At first glance, the cited regulation, now consulted by the representatives of the people, takes away from the President of the Supreme Court of Justice, and consequently, from the President of the Superior Council of the Judicial Branch, the power granted by the Organic Law of the Judicial Branch to administer the Judicial Branch Pension and Retirement Fund, precisely in accordance with the investment policies established by the Full Court, as currently contemplated in Article 81, subsection 12.

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

Despite this, that text was not the one approved in First Debate by the Legislative Plenary on October 30, 2017, published in Supplement No. 268 to Digital Gazette No. 212 of November 9, 2017, since the one approved in First Debate is a substitute text introduced by motion via Article 137 of the Regulations of the Legislative Assembly. This latter text was not consulted with the Supreme Court of Justice, as was appropriate, according to the analysis supra, under the terms of the provisions of Article 167 of the Political Constitution.

This point, although not expressly alleged by the consulting parties, is not an obstacle for the Chamber, on its own motion, to examine it, as it constitutes an essential defect in the legislative procedure in the processing of the bill under consultation. In this regard, it should be noted that this Constitutional Court has jurisdiction to hear and rule—on its own motion—on any constitutional aspect it detects when reviewing a legislative file in which a specific bill is being processed, via a legislative consultation of constitutionality, regardless of whether that specific aspect was not the subject of the consultation. This is derived from the text of Article 101 of the Law of Constitutional Jurisdiction, which states:

"Article 101.- The Chamber shall process the consultation within one month of its receipt, and, in doing so, shall issue an opinion on the aspects and grounds consulted or on any others it considers relevant from a constitutional point of view.

The opinion of the Chamber shall be binding only insofar as it establishes the existence of unconstitutional procedures in the bill consulted.

In any case, the opinion does not preclude the possibility that the questioned norm or norms may subsequently be challenged through the means of constitutional review." (The highlighting is not from the original).

In this regard, national legal doctrine has also expressed:

"Regarding the content of the opinion issued by the Constitutional Chamber, there is no absolute and rigid congruence between the grounds or aspects consulted and the opinion rendered by the Chamber, since the Constitutional Chamber may, ex officio, issue its opinion 'on any others it considers relevant from a constitutional point of view' (Article 101, paragraph 1, LJC), which includes, of course, both formal defects of the legislative procedure not consulted and substantial or substantive issues contained in the bill and not observed by the consulting parties." (Jinesta Lobo, Ernesto. Derecho Procesal Constitucional, First Edition, Editorial Guayacán, San José, Costa Rica, p. 334).

Thus, if, as in this case, the Chamber, upon examining the legislative file, determines that an essential defect was incurred in the law-making procedure of a bill, or if its content is contrary to Constitutional Law, it may well rule on this on its own motion, not only because the law regulating its operation so contemplates, but also because this is reasonable and consistent with sound procedural economy, since there would be no sense in the Chamber overlooking the unconstitutionality detected in the bill simply because the consulting parties did not notice it, waiting for it to be later claimed through an action of unconstitutionality and having to rule on it, with the corresponding declaration of unconstitutionality of an already in-force law, with the harmful consequences this could entail for the legal system. In this sense, it would be absurd to allow the legislative approval of a law containing an unconstitutionality, whether in the legislative process or in the substantive regulations, which will ultimately have to be declared. Especially if it concerns, as in this case, a defect in the processing of the consulted bill, which is binding on the legislative organ. Therefore, the defect detected in the legislative procedure of the bill for the "Law for the Comprehensive Reform of the Various Pension Regimes and Related Regulations (Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa)," legislative file number 19,922, due to the omission of consulting the Supreme Court of Justice on the substitute text approved in First Debate, must be declared on its own motion, since this violates the provisions of Article 167 of the Political Constitution, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative organ within its structure, granting it substantial powers in pension and retirement matters; and, at the same time, suppressing powers previously granted by law to the Superior Council of the Judicial Branch (Articles 239 and 240 of the bill).

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

"In the same way, they modify the scope of functions of the Judicial Archives, increasing the amount of data it must register. All of the above undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the foregoing, the Legislative Assembly omitted conducting the respective consultation with the Supreme Court of Justice (at least it does not appear in the certified copy of the file sent by the President of the Directorate), without these aspects having been previously included in the texts consulted with the Supreme Court of Justice, therefore the Chamber believes that a violation was incurred of the duty imposed in Article 167 of the Political Constitution regarding the functional independence recognized by the constituent power to the Judicial Branch, and in that sense it must be understood that the procedure followed prior to the approval of the modified report is null from the constitutional point of view and must be so declared." (The highlighting is added).

It should be noted, from what has been said, that the defect pointed out would not be remedied even if, in the second debate, the bill were to be approved by a qualified majority, since this would only be the case if it involved the approval of a text that was mandatory to be consulted with the Judicial Branch, because it affects its organization, structure, and functioning—as in this case—and, once consulted with the Supreme Court of Justice, the legislative organ persisted in approving it, departing from the technical opinion of the judicial organ. But what is at issue here is the approval—in First Debate—of an unconsulted text, in contravention of the provisions of Article 167 of the Political Constitution, a procedural defect that is unrectifiable and irremediable. This is because, although it is true that the substitute text of the bill, which was adopted by the Special Commission in the session of July 27, 2017, was consulted with the Supreme Court of Justice, this text was not the one finally approved in First Debate, but rather a new substitute text that was not previously consulted, despite having a direct relation to the organization, structure, and functioning of the Judicial Branch, as has been set out. And even more so, although the previous text approved by the Special Commission in the session of July 27, 2017, was indeed consulted with the Court, since the latter expressed disagreement with the text, a qualified vote by the Plenary was mandatory, under the terms of Article 167 of the Fundamental Charter, which was also not done.

The Full Court, in Session No. 27, of August 7, 2017, Article XXX, when providing the consultation response to the Legislative Assembly on the Affirmative Majority Report, approved by the cited Special Commission, stated:

"It is considered that it pertains to the structure and functioning of the Judicial Branch, because it directly affects the life project of all judicial employees, as it signifies a reduction in retirement benefits, even though they have met all legal requirements to fully enjoy the retirement right. This includes the payment of the necessary and corresponding contributions; income tax payment; contributions both to the Judicial Branch Retirement and Pension Fund and to the Costa Rican Social Security Fund system, and another series of burdens that, were the text approved as proposed by the reporting Commission, would result in confiscatory actions.

It cannot be overlooked that the creation and nature of the Judicial Branch Retirement and Pension Fund responds to criteria of stability, independence, training, and suitability, as established in Article 192 of the Political Constitution, with the purpose of promoting the permanence of trained and qualified personnel in the institution, and the reduction of the retirement benefit represents a disincentive for the entry of valuable professional persons, who, taking into account the economic result of a future assessment, would prefer to pursue their professional career in another labor field.

The judicial, prosecutorial, Public Defense, and general staff career is affected, as they, having more burdens on their salary—four times more than in other regimes—would receive a lower benefit.

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

The judicial population would be at a crossroads, where, though it is true they have the desire to opt for that right and the motivation to retire for rest, they are placed in a condition where they must evaluate their financial situation, probably obliging them to seek new sources of income to maintain their normal expenses or those acquired prior to the pension, and those natural due to age-related reasons. However, this process also has its restrictions; from a legal point of view, the Organic Law of the Judicial Branch prohibits retired persons from opting for another job, and socially, it is a reality that after the age of forty, there are factual limitations regarding workforce reintegration.

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

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

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

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

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

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

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

Consequently, regarding the Bill processed under file No. 19922, a negative opinion must be issued, as it impacts the structure, organization, and functioning of the Judicial Branch." (The bold is not from the original).

The final part of the cited constitutional article (167) literally states that "to depart from the opinion of the latter [The Court], a vote of two-thirds of the total members of the Legislative Assembly shall be required"; and said final text—unconsulted in any case—was approved by the Legislative Assembly on October 30, 2017, with only thirty-one votes (pages 4000 and 4173 of the legislative file).

b.- Lack of publication of the substitute text approved by the Special Commission in the session of September 13, 2016. From the study of the legislative process, it has been established that the substitute text of the bill under consultation, approved by the Special Commission in the session of September 13, 2016, was not published, as raised by the consulting deputies and was duly accredited by the evidence provided by the Executive Director of the Legislative Assembly on March 12, 2018. On the other hand, in accordance with the rules established by the special procedure approved by the Legislative Assembly for file number 19,922, in Ordinary Session No. 37 of June 30, 2016, based on the provisions of Article 208 bis of the Regulations of the Legislative Assembly, that publication was mandatory, which clearly emerges from subsection h, of point 2, "Motions on Substance," of the procedure in question, which literally states:

"h.- If, during the consideration of the file in its committee proceedings, a motion for a substitute text is approved or when the committee agrees on changes that substantially modify the bill, the Committee Presidency shall request the Legislative Directorate to arrange its publication in the Official Journal La Gaceta in order to safeguard the Constitutional Principle of Publicity, and consideration of the bill shall be suspended…" (The highlighting is not from the original).

The majority of the Chamber considers that this lack of publication—a fact not in dispute—does not affect the processing of the bill; and, therefore, does not constitute an essential defect of the procedure, since, ultimately, this was not the text approved by the Special Commission on July 27, 2017, a substitute text, the latter, which was indeed published in Supplement No. 189 to Digital Gazette No. 147 of August 4, 2017.

However, in the opinion of the undersigned, such reasoning is unacceptable; this is because, first, the rules agreed upon by the Legislative Plenary for the processing by special procedure of the bill under consultation, via Article 208 bis of the Legislative Regulations, are of mandatory and strict compliance, given that it is a much more restrictive procedure than the ordinary one, where, in particular, the democratic and publicity principles must be observed. Furthermore, regardless of whether the text in question was or was not the one finally approved by the Special Commission on July 27, 2017—which was published—the lack of publication is an essential defect considered in itself, so the fact that, subsequently, said text was replaced by another that was published does not have the virtue of remedying the defect pointed out.

The above has already been sustained by this Chamber when processing the Optional Legislative Consultations of Constitutionality presented regarding the approval of the bill called "Tax Solidarity Law (Ley de Solidaridad Tributaria)," processed in legislative file No. 18,261, an occasion on which, by Judgment No. 2012-004621 of 4:00 p.m. on April 10, 2012, it stated:

"VII.- This Constitutional Tribunal warns that when the Legislative Assembly, via a procedural motion under Article 208 bis of the Regulations, creates a special procedure, the application and observance of it must be absolutely rigorous and strict. The special procedure created through Article 208 bis, as such, is an exception to the rules of ordinary legislative procedures that is consented to by a qualified majority, but, as such, it will always be an exception.

The duty of the various legislative bodies to adhere, zealously and scrupulously, to the specially designed prior procedure prevents any infringement of the principles of legal certainty (emphasized by this Court in Voto No. 398-2005 of 12:10 hrs. on January 21, 2005) and democratic principles. Consequently, in the face of a special and fast-track legislative procedure, the previously established timeframes, stages, and requirements must be subject to a restrictive and rigorous interpretation, given that the margin of admissible flexibility compared to ordinary procedures, through extensive interpretations, decreases notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by an aggravated Nombre3382.

VIII.- ESSENTIAL VICE OF PROCEDURE OF AN EVIDENT AND MANIFEST NATURE DUE TO THE OMISSION OF THE PUBLICATION OF A SIGNIFICANT NUMBER OF SUBSTANTIVE MOTIONS APPROVED IN THE SPECIAL COMMISSION THAT, TOGETHER, SUBSTANTIALLY MODIFIED THE ORIGINAL BILL. On the other hand, the consulting deputies state that, despite what is stipulated in section I.2.h. of the special legislative procedure, during its processing, the publication of a series of changes made to the bill was omitted, which reduced the revenue expectation, which was originally proposed at 2% and subsequently fell to between 0.5% and 1% of GDP. Specifically, they indicated that the publication of Motions Nos. 92, 128, 221, 222, 225, 227, 262, 267, 623, 624, 639, 5189-208 bis, 650, 661, 662, 674, 761, 778, 1717, 1786, 1843, 3767, 2325, 3771, 3879, 3991, 4128, 4129, 4157, 4241, 4242, 4243, 4244, 4245, 1375-208 bis, 1378-208 bis, 1379-208 bis, 1382-208 bis, 1383-208 bis, 1384-208 bis, 1388-208 bis, 4940-208 bis, 5142-208 bis, 5143-208 bis, 5144-208 bis, 5145-208 bis, 5146-208 bis, 5165-208 bis, 5166-208 bis, 5190-208 bis, 5193-208 bis, 5194-208 bis, 5215-208 bis, 5219-208 bis and 5428-208 bis was omitted. However, beforehand, it is opportune to clarify that this Chamber will not examine matters concerning Motions Nos. 92, 225, 639, 5189-208 bis, and 4245. It should be noted that the content of Motion No. 92 does not refer to what the consulting deputies claim. Although the cited legislators argue that said motion deals with the exemption from sales tax payment for fishing inputs, the truth is that it relates to the deadline for filing income tax returns. For its part, Motion 225 only clarified that the total amount of the school salary exempt from income tax payment covers both public and private workers. Likewise, Motion 639 does not deal with what the consultants indicate in this matter. The motion refers to the exemption from sales tax payment on commission charges for cash withdrawals at ATMs and not, as the legislators maintain, to a 50% exemption from the profits tax for State business entities. In any case, the same consultants point out that said benefit was subsequently eliminated through Motion 5189-208 bis. Similarly, Motion 4245 only clarifies that the tax treatment for pension systems established in the Ley de Protección al Trabajador will be maintained. Now, regarding the rest of the motions, it is necessary to point out that the principle of publicity in the legislative process is of significant and special relevance in the matter of tax law, given that there must be absolute transparency of all modifications that a bill on the matter undergoes, given the general nature of the tax power and the principle of equality in bearing public burdens. Thus, any substantial modification of a bill of such nature must be subject to intense and scrupulous publicity. In accordance with section I.2.h. of the special procedure approved ex Article 208 bis, "If during the hearing of the legislative file (expediente) in its committee stage, a motion for a substitute text is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to order its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity." In the present consultation, it is evident that the abundant number of approved substantive motions, taken together, produced a substantial change to the original bill, starting with the modification and reduction of the tax rates for certain subjects, goods, and services, as well as the establishment of tax exemptions or exonerations for different public and private law subjects and activities, the introduction of some tax benefits, the establishment of special transitional regimes, etc. Such substantive motions certainly deal with the matter regulated by the original and duly published bill, but their sum produces a substantial change of such entity and magnitude that, because it involves tax matters, demands accentuated and qualified publicity, given that citizens have the right to know and understand the reasons why certain sectors, groups, subjects, activities, goods, and services are exempted, subjected to a reduced or differentiated rate, or to a different tax benefit or exemption regime or a transitional one, in a manner diverse from the rest of the taxpayers. Publicity in tax matters is of greater importance due to the generality and equality that must exist regarding the imposition of tax burdens. Note that it has been a public and notorious fact, exempt from proof, that the revenue expectation contained in the original bill was substantially reduced by the approved substantive motions. As is evident from the comprehensive review of the two hundred fourteen volumes of the legislative file (expediente) and from official communication No. Pal-1612-2012 of April 10, 2012, from the President of the Asamblea Legislativa, received by this Court on April 10 last, such substantive motions were not published in the Official Gazette La Gaceta. Specifically, on this point in the cited official communication, the President of the Asamblea Legislativa stated the following:

"Regarding the request made in the notification document of April 9, 2012, at 16:50 hours regarding file (expediente) No. CED43815, optional legislative consultation filed by Messrs. Nombre80022 and others, we respond as follows. As certified to us by Lic. Marcos William Quesada Bermúdez in official communication SD-98-11-12 of April 9 of this year, which we attach, of bill # 18.261 Ley de Solidaridad Tributaria, only the publication of its base text, or initial text, is recorded in the process in Gaceta 187, Alcance 70 of September 29, 2011. No other updated text was published because neither did the respective Commission take any agreement to request it from the Legislative Directorate, nor did the Commission Presidency itself do so. On the other hand, the procedural motions in the Legislative Plenary aimed at approving its publication were systematically rejected by the Nombre3382 of the deputies, for all of which said publication was not carried out." Consequently, from reading the content of the substantive motions approved in the special commission, this Constitutional Court unanimously considers that there was an essential vice in the legislative procedure of an evident and manifest nature that violated the principles of publicity and equality by omitting their publication, given that, together, they caused a substantial modification of the original text." In such a way, that by not having strictly observed the special procedure established via Article 208 bis of the Reglamento de la Asamblea Legislativa, in the processing of the bill under consultation, due to having omitted the publication of the substitute text of the bill under consultation, approved by the Special Commission in session on September 13, 2016, an essential vice was incurred in the legislative procedure for the formation of the law, in violation of the democratic principle and the principle of publicity, without the substitution, ultimately, of said text being able to validate the procedure.

This was also determined by this Chamber in Judgment No. 2015-001241, of 11:31 hours on January 28, 2015, by declaring several articles of the Ley de Impuesto a las Personas Jurídicas, No. 9024 of December 23, 2011, unconstitutional for violation of the principle of publicity, by providing:

"From the previous analysis and, particularly from what has been highlighted, it is clear that the unpublished substitute text introduced two sanctions that immobilize any company, such as the non-issuance of certifications of legal capacity (personería jurídica) and the cancellation of document registration for delinquents. In this sense, it is also appreciated that in the substitute text essential issues of the tax were approved, relating to sanctions, which were not foreseen in the original bill and which, therefore, warranted guaranteeing the constitutional principle of publicity. As Nombre3956 of the examination carried out, it is concluded that Articles 1, 3, and 5 of Law No. 9124, Impuesto a las Personas Jurídicas, are unconstitutional in light of the provisions of Article 73, subsection c), of the Ley de la Jurisdicción Constitucional. The foregoing, because, in the formation of the law in question, substantial requirements or procedures relating to the publicity of the bill were violated, a principle which, as has been reiterated, is basic in a Constitutional State of Law, even more so when it comes to tax matters. Indeed, the omission of making a new publication of the bill, to guarantee the publicity of the text, as well as to seek the broadest citizen and institutional participation, violated an essential aspect of the parliamentary procedure, the omission of which entails a vice of unconstitutionality in the legislative procedure." (The highlighting is not from the original).

c.- Late publication of the substitute text of the bill approved in First Debate by the Legislative Plenary. From legislative file (expediente) No. 19.922, it is clear that the substitute text approved in First Debate by the Legislative Plenary on October 30, 2017, was published in Alcance 268 to Gaceta Digital No. 212 of November 9, 2017, while this consultation was filed on November 1, 2017. That is, not only was said text published extemporaneously, after being approved in First Debate, but at the time of filing the consultation before this Chamber, it had not been published, thereby also producing another violation of the principle of publicity; and, therefore, of an essential procedural step in the legislative procedure. The publication of the substitute text of the bill should have occurred before its approval in the first debate, since, having been done afterwards, the democratic principle was also violated, by preventing the citizenry from knowing, prior to its approval, the substitute text of the bill. In such circumstances, late publication has the same effects on the legislative procedure as non-publication, since the purpose of the publication - i.e., that the population know, prior to its approval, the final text of the bill and can properly oversee the legislative work - became nugatory, an essential vice in the legislative procedure that cannot be remedied by subsequent publication. Thus, what was stated in the preceding considerando, regarding the non-publication of the text approved by the Special Commission in session on September 13, 2016, is fully applicable to the late publication of the substitute text, once approved in First Debate, because a late publication of a bill is equivalent to the non-publication of the bill.

Based on the foregoing considerations, we consider that the bill consulted to the Constitutional Chamber suffers from several essential procedural vices that affect it in its entirety and render it contrary to Constitutional Law, for which reason it is pointless to proceed to analyze the substantive arguments raised by the consultants against the substantial content of the bill in question. In the terms stated, we differ from the criterion of the Nombre3382 and thus resolve this legislative consultation regarding the bill called "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa", legislative file (expediente) No. 19.922.

XXIV.-Magistrate Cruz Castro sets forth additional reasons for the dissenting vote.

• 1)Explanatory note on the lack of publication of the bill as an essential vice As indicated in the majority vote, the substitute text in the Commission, approved on September 13, 2016, was not published. Although subsequently, the text was approved by the Commission on July 27, 2017, and published on August 4, 2017; and although later the text approved in first debate was not published until November 9, 2017. In this context, it cannot be ignored that the motion governing the approval procedure for the consulted bill states that it must be published if there is a substitute text. Therefore, in this hypothesis, it was a transgression of what is indicated in the motion governing the procedure (furthermore, because it concerns the application of Article 208 bis, said motion acts in place of regulatory rules in that specific bill), given that any type of regulated publication is an essential requirement. Because it is an abbreviated legislative procedure, the principle of publicity of the rules discussed or approved must be respected with greater rigor. The weakness of an abbreviated procedure requires a more rigorous application of the publicity requirement, without allowing validation regarding such an important requirement as publicity. On the other hand, the publicity of bills is the only way in which the activity of the popular representatives reaches the entire population. It is the projection of parliamentary activity outward, operating as a constitutional guarantee that prevents the parliament from acting with its back to the citizenry. Unlike other matters where I have considered that the lack of publication has not been an essential vice, in this case, I consider it is, for three reasons: because the rule regulating the procedure so indicates, because it concerns a substitute text, and also because the lack of publication did not allow the population to know the text that was being discussed at that time, further preventing the citizenry from making statements about what the parliament intended with the bill. In this case, it is also not under discussion whether the publication of some rules that did not vary the essence of the bill was omitted; it is that in this matter, publicity was totally omitted during the development of an abbreviated legislative procedure, which, as I expressed, totally weakens the constitutional principles governing the parliamentary procedure." Nombre9892.-) On how Article 167 of the Constitution was violated Subsequently, in the same sense as the dissenting vote to resolution number 2022-10593, of Magistrates Salazar, Garita, and Nombre52336, authored by the first, I consider that there is a violation of Article 167 of the Constitution:

"... in the legislative procedure, a gross, manifest, and evident violation of Article 167 of the Political Constitution was incurred, and which, due to its relevance, demands the unconstitutionality of the entirety of Law No. 9544 called "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas".

It must begin by pointing out that the Special Commission charged with processing legislative file (expediente) No. 19.922 informed the Corte Plena of the respective bills that were being approved, to comply with the provisions of the cited numeral 167. The consultations to the Supreme Court of Justice occurred on three occasions; namely:

• a)The bill was consulted to the Supreme Court of Justice, and the report rendered was acknowledged in the session of the Corte Plena No. 29-16 of September 26, 2016, Article XVIII, communicated to the Asamblea Legislativa by official communication SP-288-16 of September 28, 2016, with the express indication that the consulted bill affects the organization and functioning of the Poder Judicial.
• b)On a second occasion, the Corte Plena in session No. 9-17 of April 24, 2017, Article XXIX, acknowledged the consultation raised, and by official communication SP-118-17 of April 26, 2017, the Special Legislative Commission was informed that the Corte Plena had issued a negative opinion on the consulted bill, as it affects the organization and functioning of the Poder Judicial.
• c)On a third occasion, the Corte Plena in session No. 26-17 of August 7, 2017, Article XXX, acknowledged the consultation raised by the Special Commission on the Affirmative Report of Nombre3382, and the negative opinion was issued indicating that the bill processed under file (expediente) No. 19.922 affects the organization, structure, and functioning of the Poder Judicial; a decision communicated to the Asamblea Legislativa by official communication SP-253-17 of August 10, 2017.

In each and every one of the consultations formulated, the Corte Plena established that these were bills that affected its organization and functioning, so that, based on that negative opinion, in accordance with Article 167 of the Political Constitution, and the principles of coordination, mutual respect, and equality that inform relations between constitutional bodies, between two branches of government [system of checks and balances], the law had to be approved with a qualified Nombre3382. Furthermore, it must be mentioned that the last of the bills, which was the Affirmative Report of Nombre3382 accepted by the Special Commission on July 27, 2017, was not the final one. On the contrary, the text of the bill was subject to substantive motions and reiteration accepted by the Special Commission, on which the Legislative Plenary subsequently voted in First Debate, in extraordinary session No. 14 of October 30, 2017 (pages 4000, 4306 to 4327 of the legislative file (expediente)). Thus, the text voted on by the Legislative Plenary in First Debate was the modified text, maintaining some of the points on which the Corte Plena had issued its negative opinion, among them, the installation of a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial to the detriment of the competencies of the Consejo Superior del Poder Judicial. But in addition, it must be indicated that it contained other substantial changes to the bill, among them those that aggravated some conditions for judicial officials regarding the enjoyment and exercise of the right to a pension and retirement, a situation on which the Corte Plena had to rule - regarding Article 167 of the Constitution - due to its relevance in Constitutional Law. These modifications were voted on in the First Debate, and were approved in the Second Debate. The foregoing, without having made the institutional consultation on the bill approved in Commission and which was subsequently voted on by the Plenary in extraordinary session No. 14 of October 30, 2017.

Although the Asamblea Legislativa considered it unnecessary to consult the Poder Judicial on the final text, approved in the Special Commission on July 27 and the subsequent modifications made by substantive motions and reiteration, and to continue with the legislative process following the criterion of the Chamber in Judgment No. 2018-005758 of 15:40 hours on April 12, 2018, given that those modifications to the pension regime of the Poder Judicial did not affect the structure and functioning of the Poder Judicial, nor the essential content of judicial independence, this is not acceptable to the undersigned judges, as will be developed below. Furthermore, there is a pattern of aggravation of the conditions for officials of the Poder Judicial that can be enumerated from some provisions that were modified by the substantive and reiteration motions that were captured in the text approved in Commission, which implied a substantial change from the previously consulted bill. As indicated, this last text was approved in First Debate on October 30, 2017, according to which, with a comparative exercise, some of the following substantial modifications of consideration are observed, such as, for example, the following:

• a)In Article 224, the aggravation was established at 85% of the average of the last twenty years of ordinary monthly salaries earned through employment, and it is modified to establish it at 82% of the average of the last twenty years of ordinary monthly salaries.
• b)In Article 229, a similar decrease affected the survivorship regime, where due to the death of the active employee, the amount for widowhood, common-law marriage, or orphanhood would decrease from 85% to 80%.
• c)In Article 227, a similar situation occurs for the permanent disability (invalidez) of the official, from 85% to 83%.
• d)Regarding the income of the pension and retirement fund of the Poder Judicial, it is evident that a worker contribution of between eleven percent (11.00%) and fifteen percent (15%) of the salaries earned by judicial employees, and of the retirement and pensions payable by the fund, was established. Finally, it was approved at a fixed thirteen percent (13%), which implies that the floor or base of the worker contribution could not be reduced to the lower percentage of eleven percent. While the upper end is eliminated, the fixed percentage eliminated the reduction in favor of the judicial employee, who historically has been contributing a significant sum to the fund.

Thus, contrary to the criterion of the Nombre3382 of the Chamber, which is importantly based on the doctrine of Judgment No. 2018-005758 of 15:40 hours on April 12, 2018, a precedent in which the undersigned signed a dissenting vote together with Magistrate Cruz Castro, we consider that Law No. 9544 called "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas", contains the substantial vice of the legislative procedure, due to the violation of the constitutional rule that imposes the constitutional consultation, based on the arguments set forth below.

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

At the base of the discussion, as is well stated in the majority vote, lies the determination of whether, in accordance with the provisions of Article 167 of the Political Constitution, the legislative body was or was not obligated to consult the cited bill to the Poder Judicial, a duty that, moreover, has been incorporated in Articles 126 and 157 of the Reglamento de la Asamblea Legislativa, which stipulate the procedure to be observed for this purpose. From the constitutional text, it is inferred that the mandatory consultation of the Supreme Court of Justice is only such if the bill refers to the organization or functioning of the Poder Judicial. Thus, the crux of the matter lies in what should be understood by "organization or functioning of the Poder Judicial." In this regard, the vote of Nombre3382 maintains that when the Fundamental Political Charter refers to the organization and functioning of the Poder Judicial, it refers - solely - to the affectation of the jurisdictional function, and not the strictly administrative one. In support of this position, Judgments No. 1998-5958 of 14:54 on August 19, 1998, No. 2001-013273 of 11:44 hours on December 21, 2001, and No. 2008-5179 of 11:00 hours on April 4, 2008, are cited. Also, in relation to the specific issue of the Fondo de Pensiones y Jubilaciones del Poder Judicial and the obligation of the Asamblea Legislativa to consult the Supreme Court of Justice on bills concerning it, the vote of Nombre3382 cites Judgments No. 1995-3063 of 15:30 on June 13, 1995, and No. 2002-4258 of 9:40 on May 10, 2002, based on which it concludes that in those cases, the Asamblea Legislativa is not obligated to consult the bill to the Supreme Court of Justice, under the terms set forth in Article 167 of the Constitution. However, in the opinion of the undersigned, such an interpretation of the constitutional numeral, restricted solely to the jurisdictional function, derives neither from the text of the Fundamental Charter nor from the jurisprudence of this Chamber. Indeed, regarding the cited precedents, it is noteworthy that, with respect to the first three judgments, what the majority asserts in its vote cannot be inferred from them. Thus, in Judgment No. 1998-5958 of 14:54 on August 19, 1998, only the term "functioning" - of the binomial "organization or functioning" - of the Poder Judicial is developed, without referring to the issue of the organization of that Branch of Government. Specifically, in the citation made of that vote, the Chamber clearly indicates that "...the matters that mandatorily require a consultation of the Supreme Court of Justice are those referring 'to the organization or functioning of the Poder Judicial', where the term 'functioning' alludes not only to aspects of the internal administrative regime of judicial offices, but also to procedural issues governing the substantiation of the various matters submitted to those courts," which makes it evident that the issue of organization - which is what is of interest here - was not developed in said resolution, simply because the case did not require it, as it involved the mandatory legislative consultation of constitutionality regarding the bill for the "Addition of a new Chapter IV, called 'Del recurso de hábeas data', to Title III of the Ley de la Jurisdicción Constitucional, Law No. 7185 of October 19, 1989," processed under legislative file (expediente) number 12.827, where the issue under discussion was that the reform affected the jurisdictional function of the Poder Judicial. That this is the case is evident from the text of the judgment itself, which is not cited with due scope in the majority vote: "...the matters that mandatorily require a consultation of the Supreme Court of Justice are those referring 'to the organization or functioning of the Poder Judicial', where the term 'functioning' alludes not only to aspects of the internal administrative regime of judicial offices, but also to procedural issues governing the substantiation of the various matters submitted to those courts. And, in Costa Rica, constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Ley de la Jurisdicción Constitucional integrate this Chamber within the structure of the Court." Having made the citation in its context, it cannot be inferred that the Chamber restricted the binomial "organization or functioning" merely to the jurisdictional, but rather that, in the cited case, this Constitutional Court only referred to the aspect of the jurisdictional function of the Poder Judicial, because that was the issue under discussion, without making exclusion or referring to the topic of the administrative organization of said Branch of Government. The same can be said regarding Judgment No. 2001-013273 of 11:44 hours on December 21, 2001, alluded to by the majority. It concerns an optional legislative consultation of constitutionality regarding the bill for the "Modificación del Código Penal, Ley número 4573 y sus reformas," legislative file (expediente) number 14.158. Again, it was a reform that directly affected the jurisdictional function of the Poder Judicial, not its administrative organization. Hence, in this case, the Chamber also did not develop this last topic, as it was unnecessary. It is for this reason that the substantive discussion focused on and exhausted the aspects of the jurisdictional function of the Poder Judicial: "...said consultation [that of Article 167 of the Political Constitution] is mandatory when what is discussed in the Assembly is a bill that intends to establish rules of functioning and organization of the Poder Judicial, understood not only as provisions regulating the creation of courts of justice or jurisdictional competencies, but even those that provide on the manner of exercising said competencies, that is, on the way in which the Poder Judicial carries out its jurisdictional function, including properly procedural rules." Certainly, it is evident that what was expressed was limited to examining what relates to the exercise of the jurisdictional competencies of the Courts of Justice, since it was on that particular aspect that this consultation was based.

But the Chamber did not say that this is the only instance in which the consultation under article 167 of the Political Constitution is mandatory; rather, what it said is that, in that case, it is mandatory, without referring to other cases in which it is also mandatory, as is the case regarding the administrative organization and competencies of the Judicial Branch.

Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008, deserves separate comment, since here, unlike the reading made by the majority, it is indeed established that matters relating to the administrative organization of the Judicial Branch fall within the mandatory consultation stipulated by the cited article 167 of the Constitution. On that occasion, this Constitutional Chamber, as the ultimate interpreter of the Political Constitution, when referring to the terms “organization or functioning” of the Judicial Branch, contained in article 167 of the Political Charter, as a condition for the mandatory consultation of that Branch of the Republic by the Legislative Assembly, considered “…that a bill deals with such matters when its text contains explicit provisions that order the creation, substantial variation, or suppression of strictly jurisdictional bodies or bodies of an administrative nature attached to the Judicial Branch, or creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions…”. This is not a change in this Chamber’s criteria on the matter, but rather, within the already established jurisprudential line, a greater determination of the terms “organization or functioning” used by article 167 of the Political Constitution, to establish the cases in which bills in the legislative process must be consulted—mandatorily—to the Supreme Court of Justice. This judgment did not, in any way, expand the circumstances of mandatory consultation; on the contrary, what it did was define them in a broader and more precise manner. Therefore, it was clearly determined there that in those cases, but only in those, the consultation is mandatory. Thus, it is understood that, in that same judgment, it was stated: “[i]t should be noted that such exegesis is necessary in order to maintain the balance of powers, without privileging one or another constitutional body, so that each can exercise its functions independently and separately as required by the constitutional text itself (article 9 of the Constitution). In other words, the precise definition of such concepts avoids any collision, overreach, or exacerbation of the respective functions, in the interest of maintaining the balance and containment of the powers, since the purpose of the provision is not only the functional independence and budgetary autonomy of the Judicial Branch, but also the balance between the Legislative and Judicial Branches. Indeed, a broad interpretation of the terms used by the original constitution-maker, by the Full Court, could lead to certain matters that, strictly speaking, are not related to the organization and functioning of the Judicial Branch, unjustifiably requiring a reinforced law, thereby unnecessarily slowing down or hindering the legislative function. On the other hand, the non-application by the Legislative Assembly of the constitutional provision, by erroneously considering that the bill does not concern the organization and functioning of the Judicial Branch, could cause harm to the functional independence and budgetary autonomy of the Judicial Branch”. From the foregoing, it follows that everything relating to the matter of the organization and functioning of the Judicial Branch, but only and strictly this—in order to maintain the balance between functional independence and budgetary autonomy of the Judicial Branch, on one hand, and the ordinary legislator's freedom of configuration, on the other—is what obligates the legislative body to carry out the consultation before the Supreme Court of Justice, without it being possible to extend this to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that matters relating to the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect affectation of the jurisdictional function, obligates the legislative body to submit the consultation in the terms expressed in article 167 of the Political Constitution. And it could not be otherwise, since the affectation or modification of the administrative organization of the Judicial Branch in general—and not only that pertaining to jurisdictional or judicial bodies in the strict sense—also impacts the Administration of Justice service it provides, and the independence constitutionally guaranteed to that Branch and to judges as officials called to impart justice.

Furthermore, Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, cited in the vote of Nombre3382 as a basis to conclude that bills relating to the specific topic of the Judicial Branch Pension and Retirement Fund do not need to be consulted to the Supreme Court of Justice, likewise do not have the virtue of providing the foundation that, in relation to this matter, the Nombre3382 of the Chamber claims they have.

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

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

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

There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional Rule of Law State in modern societies. This is because, unlike decisions made in the Legislative and Executive Branches, the decisions of the Judicial Branch, in the exercise of the jurisdictional function, are unappealable; that is, they have the force or authority of res judicata. This not only implies great responsibility but also the need to have a series of principles and guarantees that allow the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, stands as a sine qua non condition for the exercise of that delicate function. It falls to the judge to decide on the sole and possible interpretation of the law, the Constitution, and the conventionality parameter, which would be impossible without due independence. But this independence would be illusory if it does not necessarily imply adequate remuneration and a retirement right commensurate with their functions and responsibilities, for both the judge proper and the personnel who assist and aid them in their function. Therefore, in matters of remuneration and retirement, it cannot be equated with the administrative sector. The need to compensate the complexity and difficulty involved in exercising the jurisdictional function justifies, regarding the issue at hand, that the retirement or pension of judicial employees not be equal to that of the rest of the administrative public sector. What is decided with the force of res judicata in judicial instances has transcendental effects on legal certainty and on the law in force in a society; and, consequently, on social peace. In all this, judicial independence plays a leading role, because in a Constitutional Rule of Law State—that is, in a Democratic State—this principle has an institutional projection in the Judicial Branch properly speaking, vis-à-vis any of the other Branches of the State, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but even vis-à-vis the heads of the Judicial Branch. Nowadays, there is no Rule of Law if the Judicial Branch—including all its employees—does not have real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest rank of the hierarchy of norms, to the point that it is also stipulated as a Human Right. Indeed, the American Convention on Human Rights has established, as a human right, the right to be heard by an impartial judge. In this regard, article 8.1 establishes:

“Article 8. Judicial Guarantees.

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

Judicial independence constitutes a fundamental principle within the Constitutional Rule of Law State. But for that independence to be real, it must be not only organizational and functional but also economic. That economic independence is also guaranteed in article 177 of the Political Constitution, by establishing that the ordinary budget bill must allocate to the Judicial Branch at least 6% of the ordinary revenues calculated for the fiscal year. The intention of the original constitution-maker, with the enactment of this provision—which establishes a tied constitutional expenditure—is to guarantee, among other things, that judges and the rest of the auxiliary justice personnel have adequate remuneration for the complexity and difficulty of the jurisdictional function, which implies a retirement or pension also adequate to that and to the special prohibitions that said function entails for judicial employees, which do not apply to public employees of the other Branches of the State. The constitutional provision prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in all its breadth, since the salaries of judges and auxiliary personnel, as well as the applicable pension and retirement regime, must maintain a strict relationship with the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliaries of justice, is essential in a Constitutional Rule of Law State. Thus, one way to guarantee the independence of the Judicial Branch, the Judges of the Republic, and the auxiliaries of justice, is with a dignified retirement or pension, commensurate with their constitutional functions.

In the explanatory memorandum that led to the enactment of the Law on Judicial Retirements and Pensions, as an addition to the Organic Law of the Judicial Branch, Deputy Teodoro Picado Michalski, on June 2, 1938, stated:

“The Judicial Branch is one of the three main supports upon which the Government of the Republic rests; and it is from its employees, who perform very delicate functions for the very life of Society, that more is demanded than from other employees: greater enlightenment, probity, and work. And it is for this reason, surely, that in asking judicial employees for complete dedication, over many years, to the extremely important task of administering justice—with the noble purpose of ensuring their subsistence upon reaching old age or when physical ailments prevent them from working—that the enactment of a law addressing this difficult situation of the officials and employees of the Judicial Branch has been urged before Congress during different legislative periods”.

It must not be overlooked that the adjudicating persons and the judicial civil service in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigor than the regime of incompatibilities and prohibitions affecting the rest of public officials, which makes it of a completely different nature. The regulations that apply to the administrative civil service of the entire public sector cannot also be applied to judicial officials. In this sense, the principles of constitutional reasonableness and proportionality require that this asymmetric regime of incompatibilities and prohibitions, which responds to the very nature of the jurisdictional and administrative functions, must have economic compensation, both in salary and at the termination of the employment relationship. But also, the principle of equality, enshrined in article 33 of the Political Constitution, implies the prohibition of treating unequal parties as equals, because this leads to discrimination contrary to the Law of the Constitution. In the case of judges and judicial officials, there are objective, reasonable, justified conditions grounded in the very nature of the jurisdictional function exercised, to give them treatment different from that of the rest of the public employees of the various administrations, whereby, far from incurring discrimination, the principle of equality regulated in the cited constitutional article is protected. Which means that if a differentiated retirement regime exists for the jurisdictional sector, this does not stem from an arbitrary, subjective, or whimsical decision of the legislator, but from the specific and different nature of the jurisdictional function that objectively and constitutionally justifies it.

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

“11. The law shall guarantee the tenure of judges for established periods, their independence and their security, as well as adequate remuneration, pensions and conditions of service and retirement.” Whereby the United Nations recommends to all countries of the world that legal norms must guarantee judges adequate remuneration, pensions, conditions of service, and retirement, proportionate to the complexity and difficulty of the jurisdictional function they exercise. This must also be understood as extending to the auxiliary officials of justice, as otherwise such independence would be impossible.

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

“6.1 The professional exercise of judicial functions entitles the judge to remuneration, the level of which shall be determined with the aim of protecting him or her from pressures intended to influence his or her decisions and generally his or her judicial conduct, thereby altering his or her independence and impartiality.

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

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

“Art. 32. Remuneration.

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

“Art. 33. Social Security.

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

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

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

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

Likewise, article 49 of the cited Statute also enshrines, as do the international instruments examined, the principle of the irreducible salary of the judge: “Judges must receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” As already explained, this special regulation is based on the independence of the Judicial Branch, which must also be extended to the topic of the pension or retirement of judges and auxiliary justice personnel, since otherwise the principle of judicial independence would not be possible.

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

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

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

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

The aforementioned articles of the Law provide:

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

The Board is responsible for:

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

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

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

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

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

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

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

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

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

The following persons may not be members of the Board:

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

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

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

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

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

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

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

…

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

…" Thus, according to the Ley de la Jurisdicción Constitucional, if what is being analyzed is a formal law approved by the Asamblea Legislativa, this would involve the a posteriori review of laws or legislative agreements, through the examination of the legislative file, to determine whether any essential defect was incurred in the law-making procedure. Therefore, the defect detected in the legislative procedure of Law N° 9544, called "Reform of the Judicial Branch Retirement and Pension Regime, contained in Law No. 7333, Ley Orgánica del Poder Judicial of May 5, 1993, and its Reforms," must be declared due to the omission of consulting the substitute text approved in First Debate with the Corte Suprema de Justicia, since this violates the provisions of Article 167 of the Constitución Política, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative organ within its structure, granting it substantial competencies in matters of pensions and retirements; and, at the same time, suppressing competencies previously granted by law to the Consejo Superior del Poder Judicial (Articles 239 and 240 of the bill).

This Chamber, in support of the foregoing, in Judgment N° 2001-13273, of 11:44 a.m. on December 21, 2001, when rendering a legislative consultation of constitutionality on a bill to reform the Código Penal, regarding modifications to aspects relating to the -merely administrative- organization or functioning of the Archivo Judicial, held unanimously that:

"Likewise, they modify the scope of functions of the Archivo Judicial, increasing the amount of data it must record. All of the foregoing undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the foregoing, the Asamblea Legislativa omitted to carry out the respective consultation with the Corte Suprema de Justicia (at least, it is not recorded in the certified copy of the file sent by the President of the Board of Directors), without these aspects having been previously included in the texts consulted with the Corte Suprema de Justicia, therefore, the Chamber considers that a violation was incurred of the duty imposed in Article 167 of the Constitución Política regarding the functional independence recognized by the constituent power to the Judicial Branch, and in that sense, it must be understood that the procedure followed prior to the approval of the amended report is null and void from a constitutional standpoint and must be so declared." It should be noted, therefore, that the defect pointed out was not corrected in the second debate, even if the Law had been approved by a qualified Nombre3382, since this would only be the case if it involved the approval of a text that required mandatory consultation with the Judicial Branch, because it affects its organization, structure, and functioning—as in this case—and, once consulted with the Corte Suprema de Justicia, the legislative organ persisted in approving it departing from the technical opinion of the judicial organ. None of this occurred in the legislative procedure, given that Law N° 9544 of April 24, 2018, did not even obtain the qualified vote in the second debate, and even worse, the text approved was without institutional consultation. The crux of the problem before us, really, is the approval—in First Debate—of an unconsulted text, in contravention of the provisions of Article 167 of the Constitución Política, a procedural defect that is insurmountable and irremediable. This is because, although it is true that the substitute text of the bill, which was adopted by the Comisión Especial in session on July 27, 2017, was consulted with the Corte Suprema de Justicia, this text was not the one that was finally approved in First Debate, but rather a new substitute text that was not consulted beforehand, despite having a direct relationship with the organization, structure, and functioning of the Judicial Branch, as has been explained. And furthermore, although the previous text approved by the Comisión Especial in session on July 27, 2017, was indeed consulted with the Court, since the Court expressed disagreement with the text, a qualified vote by the Plenary was mandatory, in accordance with Article 167 of the Carta Fundamental, which was also not done.

It is worth remembering that the purpose of institutional consultation is the protection of judicial independence, which is much more complex than reducing it to the protection of a jurisdictional forum. The mandatory institutional consultation must be timely, as otherwise, it would be a paper obligation that would not produce the true safeguards that the constitutional text seeks to establish between equal Powers of the Republic. Maintaining a contrary, and permanent, stance by the Nombre3382 of the Tribunal will not be sustainable over time, because even in these circumstances of inflection and implosion in the functional and budgetary independence of the Judicial Branch, it is, for the most part, that of the citizen guarantees that the Constituent Power sought to guarantee in Article 167, and later improved with the reform of Article 177 of the Constitución Política.

The Corte Plena, in Session N° 27, of August 7, 2017, Article XXX, when rendering its consultation to the Asamblea Legislativa regarding the Affirmative Majority Report of Nombre3382, approved by the aforementioned Comisión Especial, ordered:

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

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

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

Furthermore, the renewal of personnel who manage to remain is affected. The Judicial Branch would have elderly officials who continued working solely because of the reduction their income would suffer upon retirement.

The judicial population would be at a crossroads, where although it is true, there is a desire to opt for that right and the motivation to retire and rest, they are placed in a condition where they must assess their economic situation, likely forcing them to seek new sources of income to maintain their normal or pre-pension acquired expenses, and those natural for age-related reasons. However, this process also has its restrictions; from a legal standpoint, the Ley Orgánica del Poder Judicial prohibits retired persons from seeking other employment, and socially, it is a reality that after age forty, there are factual limitations regarding labor reincorporation.

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

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

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

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

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

Taking into account the observations raised regarding the Bill processed under file 19922 (20035), which find support and backing in the actuarial study conducted by the IICE and based on the powers that Articles 167 of the Constitución Política and 59 subsection 1) of the Ley Orgánica del Poder Judicial grant, it is considered that the consulted text does affect the structure, organization, and functioning of the Judicial Branch, and in that sense, the Asamblea Legislativa must take into account what was stated by the Corte Plena regarding each aspect of the Bill under consultation, unless it has the qualified Nombre3382 to deviate from that binding opinion.

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

Nombre3956, regarding the Bill processed under file No. 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch." The final part of the cited constitutional article (167) literally states that "to depart from the opinion of [the Court], the vote of two-thirds of the total members of the Asamblea Legislativa shall be required"; and this final text—unconsulted in any event—was approved by the Asamblea Legislativa on October 30, 2017, with thirty-one votes (folios 4000 and 4173 of the legislative file). And for the second debate, it did not obtain the qualified Nombre3382, reaching thirty-four votes (folios 4437, 4608, and 4637 of the legislative file).

B.- The legal and social dynamics that informed the reform of Article 177 of the Constitution. It is necessary to address the majority opinion, which we consider with respect—but with equal vehemence—the reasons for holding that they utilize a lax interpretation of the obligation of institutional consultation established in Article 167 of the Constitution, in addition to what has been previously stated. It is clear that, in general, the constitutional doctrine underlying institutional consultation is based on similar reasons: ensuring that the legislator has the best firsthand information to legislate, that is, that they have the specific technical opinion. It is the recognition by the Constituent Power of institutional autonomies, as well as, in its highest degree, the defense of the independence that corresponds to a Power of the State or a fundamental constitutional organ of the State. In complex law-making processes, such as those on which the Judicial Branch had an adverse opinion, it is when a qualified Nombre3382 of the legislators is most required to promote those significant changes in legislation through a true consensus.

Although this Chamber, in some of its judgments, has established that institutional consultation is not required for bills that have a national or general character, this jurisprudential criterion alone cannot suffice to dismiss the need to aggravate the legislative procedure in the Asamblea Legislativa when it concerns the qualified Nombre3382 established in Article 167 of the Constitution. This must be dimensioned not only concerning matters related to the institutional autonomy of the Judicial Branch but especially those related to the direct or indirect impact on judicial independence, which is guaranteed in the Constitution through the fundamental organic structure of the State. This is especially so if, as in the case before us, there have been various defects in the legislative procedure, referred to later.

It is clear that criteria for denying institutional consultation on the grounds that a bill is of a national or general character cannot be used indiscriminately, especially because with that classification, a large number of bills that have an impact on the national budget would fall into it; in this situation, a large Nombre3382 would have national impact that is used to establish the defense of public objectives seen from economistic criteria. On the contrary, this minority considers that the jurisprudential criterion cited by the majority does not apply when dealing with bills that could affect the organization of the Judicial Branch, as a fundamental organ of the State. It is clear that judicial scrutiny must be more demanding, due to the more permanent scope on the judicial function (which is universal and with full jurisdiction over all legal disputes), which expresses the fundamental functions of control, as much or more so than those of semi-autonomous and autonomous institutions, because it relates to the functional specialty and independence of a power of the Republic. The absolute weight of the fundamental institutionality of the State must guide the criteria for the examination and scrutiny that this Constitutional Court must conduct, so that it cannot be examined in the same terms as for other autonomous institutions, because the consequences are evidently very different for the State and the population in general. It suffices to cite Judgment N° 2017-009551 of 11:40 a.m. on June 12, 2017, which established that:

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

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

"This leads to the principle of functional legality, which entails the exercise of the constitutional competencies of the State, the achievement of the core objectives of each power without extending to those of the other independent and equal-ranking Powers, and it is by exercising each the functions of checks and balances that they can control and limit the other Powers, as authorized by the Constitución Política." In accordance with the distribution of the fundamental functions of the State, when the Legislative Branch enacts laws, it is subject to the supremacy of the Political Constitution and to the limits enshrined by the Political Constitution, which definitively conditions its regularity and permanence over time, in addition to not being able to apply them directly; as for the Executive Branch, it could not fail to apply and implement the provisions dictated to it by the Legislative Branch, nor fail to observe the provisions of the fundamental Charter; finally, the Judicial Branch could not resolve against the grain of the rules applicable to a specific case, except due to conflict with the principle of normative hierarchy, the principle of the supremacy of norms, laws, treaties, and the Political Constitution, remaining subject to them. In accordance with Articles 10 and 152 and following of the Political Constitution, it must ensure the regularity of all legislation, and therefore it could not apply invalid or unconstitutional norms, since, coupled with the fundamental function of imparting justice, it must ensure that no action or omission violates the essential principles of any social and democratic State governed by the Rule of Law, among them: the principles of legality, normative hierarchy, and respect for the fundamental rights and freedoms of the population. Consequently, the Judicial Branch ultimately interprets and applies the Political Constitution, having the control of constitutionality of norms and omissions—the monopoly on rejection—when legislation is contrary to it, as well as when it violates fundamental rights, because it is naturally the ultimate guarantor of the principle of legality, the ultimate defender of the ends and objectives of the State and of the realization, through Law on a case-by-case basis, of the well-being of the human being.” Now, the judgment addresses the generalities of the Fund and its legal development from the beginning of the last century, in line with Judgment No. 2018-5758 of 15:40 hours on April 12, 2018, to explain the legal development of social security and the pension regime (régimen previsional) of the Judicial Branch. However, reference should have been made to the fact that the system's shortcomings also served as a spur at the constitutional level, since there were others that were gestated to guarantee greater institutional stability and in favor of judicial independence. In this way, reference must be made to the materialization of one of the most important achievements for the country's institutionality, the one obtained with the reform of Article 177 of the Constitution, with which the economic independence of the Judicial Branch was guaranteed. It is therefore worth stating that if the institutional and social dynamics of that time were important, those of the amendment to the Political Constitution were even more so, which are by no means negligible, since they were aimed at strengthening the Judicial Branch, and with equal weight, producing protection within the civil service. The economic and legal dynamics say as much or more, because despite the legal achievements and due to the number of problems that existed in the period prior to the constitutional reform, the substantial improvement of that economic independence of the Judicial Branch in the Political Constitution itself was gestated from within the Full Court (Corte Plena) and was embraced by the Legislative Assembly. There is no doubt that the protections that the derived Constituent Power established in the reform are equally distributed over the stability of the judicial civil service. Thus, limitations on facilities and infrastructure, providing better work tools, improvement of salaries, more resources for the Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones) of the Judicial Branch, among others, were contemplated. The claims of the plaintiffs should have found an echo in this avenue of the acción de inconstitucionalidad (acción de inconstitucionalidad), some of which are listed at the beginning of this dissenting vote. Judicial independence is defended with the tools precisely provided by the Constituent Power, within which the most consolidated democracies in the world dedicate themselves to producing instruments of protection for judicial and economic independence, one of them being a qualified vote in the event that a bill affects the organization and functioning of the Judicial Branch.

In Judgment No. 2006-07965 of 16:58 hours on May 31, 2006, this Chamber established that:

“VI.- EXCEPTIONAL CHARACTER OF THE MATERIALLY ADMINISTRATIVE FUNCTION OF THE JUDICIAL BRANCH. Although the Judicial Branch is responsible, par excellence, for the exclusive exercise of the jurisdictional function—as indicated in the preceding considerando (considerando)—the truth is that it also exercises, exceptionally or extraordinarily, functions of an administrative nature. In that sense, it is necessary to point out that the administrative function is not constitutionally or legally assigned exclusively to a single organ or entity and, furthermore, does not possess a typical content that characterizes it, since, as doctrine has rightly pointed out, it is easier to describe public administration than to define the administrative function due to its heterogeneous character. It is clear that the exercise of the materially jurisdictional function requires and necessitates an entire administrative infrastructure that allows it to be exercised in accordance with the constitutional precept, that is, promptly and fully. This is what has been called the 'public service of administration of justice.' Thus, the auxiliary administrative support or apparatus that allows judges and courts to issue their resolutions constitutes said service, whereby the concept refers to the administrative profiles of the jurisdictional function, such as the organization and functioning of the courts, logistics—provisioning and supplies—, the efficient and effective handling, management, or administration of judicial offices to avoid undue or unjustified delays in the processing of the case, the administrative function exercised by the administrative organs of the Judicial Branch (e.g., administrative resolutions of the Full Court, the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial), the Judicial Inspection Tribunal (Tribunal de la Inspección Judicial), the Judicial Council (Consejo de la Judicatura), and, in general, the various administrative departments—Executive Directorate (Dirección Ejecutiva), Procurement (Proveeduría), Personnel (Personal), etc.—) and auxiliary bodies attached to it such as the repressive police force exercised through the Judicial Investigation Agency (Organismo de Investigación Judicial), the exercise of public prosecution by the Public Prosecutor's Office (Ministerio Público), and the provision of free defense through the Public Defender's Office (Defensa Pública). However, although this materially administrative function is deployed by the support or backing apparatus or organization for the jurisdictional one, it must be understood in a strictly exceptional sense, that is, only that which is necessary and suitable to contribute to the exercise of the materially jurisdictional function is admissible, and no other. By reason of the foregoing, by application of the constitutional principle of the reservation or exclusivity of jurisdiction, it is imperative that the Judicial Branch must use and allocate the Nombre3382 of its resources to the exercise of a materially jurisdictional function.

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

'(…)

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

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

'This constitutional reform—with which the autonomy of the Judicial Branch in the economic aspect will be definitively strengthened—will make it possible in the future to find adequate solutions to the multiple problems that said Branch currently faces due to the limitation of economic resources allocated to it in national budgets. These problems come from far back and worsen day by day as a consequence of the growth and development of the population that increasingly demands more justice administration services. Judicial offices do not have sufficient personnel to attend to the many problems arising daily and, materially, they are, with very few exceptions, housed in completely inadequate premises and without sufficient furniture or equipment (…) The remuneration of judicial servants is, on the other hand, meager, in such a way that the judicial career offers no stimulus or incentive whatsoever to those who wish to begin it, and this keeps away, in many cases, elements of vocation and capabilities that could, under other conditions, lend their services as Alcaldes, Judges, or Magistrates.' Consequently, the guiding idea that inspired the constitutional reform of 1957 was to strengthen the organization and functioning of the Judicial Branch, so that it would efficiently and effectively exercise its essential function of imparting or administering justice. Under this understanding, any provision of the ordinary legislator tending to attach to the organization of the Judicial Branch organs that exercise materially administrative competences that are extraneous or that do not pertain to the jurisdictional function, is unconstitutional, insofar as it violates financial autonomy and, consequently, the independence of the Judicial Branch, by diverting the use and employment, even if only by a small percentage, of the minimum budget guaranteed to it for other purposes. It can be affirmed, then, that the 2nd paragraph of Article 177 of the Political Constitution, added by Law No. 2122 of May 22, 1957, is a clear institutional guarantee, since, by consolidating the financial autonomy and independence of the Judicial Branch, it guarantees an effective exercise, by any person, of the fundamental right established in Article 41 of the Political Constitution to access the jurisdiction and obtain prompt and full justice.” The affirmation that essential administrative competences of organization and those connected to the jurisdictional function are not being removed is very relative, if, as explained above, an organizational aspect and the administration of the personnel of the Judicial Branch are being modified. With this, the history of the constitutional amendment is ignored, where it was indeed contemplated as a justification for passing the reform of Article 177. The Nombre3382 affirms that it concerns the same essential content of a legal institute, but in doing so, the law removes the administration of pensions from the Superior Council of the Judicial Branch, to grant it to an Administrative Board of the Retirement and Pension Fund of the Judicial Branch (Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial). It is true that it remains within the Judicial Branch, but now in a deconcentrated organ, which evidently touches an essential part of the governance of the Judicial Branch (Articles 152 and 156 of the Constitution). There is a schism that produces an affectation to the organization of the Judicial Branch, broadly speaking, in the capacity to organize itself, in the management and administration of the fund, for the exercise of the social security rights of the personnel of the Judicial Branch, which, it is worth saying, is contrary to the opinion of the Full Court, due to the negligent manner of carrying out an institutional consultation, and for ignoring its opinion against the principle of functional legality of a Branch of the Republic. It should be remembered that the reform to Constitutional Article 177 was attributed with the vision of reinforcing judicial independence, including that of its officials, within which the administration of the pension fund would be included. In fact, the recognition of something so important, which was timidly embedded later in the Political Constitution of 1949, did not go so far as to include—explicitly—the lifetime tenure (irreductibilidad) of the salaries of judicial officials, as in other latitudes, however, it did work in our country because it allows it to enjoy the indices of judicial independence that Nombre2042 has enjoyed comparatively at a global level, which is clearly the fruit of the economic independence of the Judicial Branch. This has been partly thanks to the recognition of the public employment regime (régimen de empleo público) that was consolidated throughout the republican life of this country.

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

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

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

'The Judicial Branch is only subject to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities on it than those expressly indicated by legislative precepts' derives the principle of the independence of the Judicial Branch, which encompasses both the organ or institution as a whole, and the Judge in the cognizance of the matters submitted to their judgment. In relation to this official, it must also be recognized that there is a double protection for their investiture, since the independence of the judge—as a guarantee for the parties involved in the sub judice matter—is towards the external and the internal, in the sense that they are protected from influences and incidences—both external and internal—that may have one sense or another in the decision of a specific case submitted to their cognizance, so that they rule with strict adherence to the provisions of the current regulations; in other terms, the judge is protected so that neither the parties involved in the process, third parties, higher-ranking judges, 'influential' members of the Branches of the State, including the Judicial Branch, can influence their decision, for which reason much less would the obligation—imposed by the higher-ranking authority—to rule in a specific manner on a concrete case or to coerce the judge in that sense be admissible. The guarantee of independence of the judges, more than a guarantee for these officials—which it indeed is—constitutes a guarantee for private individuals (parties to the process), in the sense that their cases will be decided with strict adherence to the Constitution and the laws.” In Judgment No. 1998-005798 of 16:21 hours on August 11, 1998, this Chamber established that:

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

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

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

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

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

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

Another reason is that a reinforced Nombre3382 guarantees not only judicial independence from the institutional point of view, but also for the person of the judge, individually considered, where the economic, social, and cultural rights, established through a social security and pension regime (régimen previsional), are affected. It cannot be denied that the Judicial Branch forms part of a whole, the 'State,'; its strategic and key position within its organization must also be felt, with the public functions of its officials, which are highly specialized and attached to the Law, as described before in the background of this Court, and whose function is ultimate in the resolution of conflicts and as a pacifier of them. This clearly has a cost and sacrifice for its personnel, which must be compensated by the 'State,' but even more so in a functional democracy like Costa Rica's, which must assume not only the economic part of its support but also its protection.

Judicial independence has the purpose of guaranteeing judicial impartiality, which is shared with the Nombre3382 of the Court, although not with the clarity that this minority would desire, since the problem of the reform to Article 177 of the Political Constitution crystallized the deeply felt need to protect, in general terms, the institutionality and the administration—also—of everything related to the personnel of the Judicial Branch, which should be jealously guarded, and from which the legal opposition of the head of the Judicial Branch cannot be dispensed with, in the face of the regressive effects of legislation that may be produced in the future. The constant rule of the importance of protecting the remuneration aspect and matters related to the pension regimen (régimen de pensiones) of judges, of its officials, in the most important legal systems of the world must be brought up.

In this way, the undersigned magistrates consider that Law No. 9544 of April 24, 2018, contains essential defects in the legislative procedure that affect it in its entirety, consisting of the lack of consultation with the Judicial Branch on the text approved by Parliament by absolute and unqualified Nombre3382, which affects it in its entirety (Article 167 of the Political Constitution), because it affects its organization, structure, functioning, and independence; and, with this, it is contrary to the Law of the Constitution. By reason of the foregoing, it is inapposite—for the undersigned judges—to proceed to analyze the rest of the substantive arguments formulated by the plaintiffs against the substantial content of the law, except in those cases in which it was required to take a position so that there would be a fully conforming vote (Article 60.2 of the Civil Procedure Code (Código Procesal Civil)), which is reflected in the judgment of the Nombre3382 of this Chamber.” In this way, the undersigned magistrates Cruz Castro, Salazar Alvarado, and Garita Navarro, hereby record our additional reasons.- F.-) Regarding the use of Article 208 bis (current 234 bis) as a procedural defect In addition to the procedural defects pointed out in the dissenting vote indicated in the preceding considerando (considerando), I have considered that furthermore, the application of Art. 208 bis (current 234 bis) of the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa) to the law challenged in this action makes it unconstitutional.

In the same sense as I have expressed through vote number 2011-015749 of 09:32 hours on November 16, 2011 (based on the considerations given in judgments No.

2005-398, 2007-2901, and 2008-7687), and vote number 2012-004151, issued at 4:00 p.m. on March 27, 2012, I have dissented from the criterion of the Nombre3382 because I believe that Article 208 bis of the legislative regulations harms the Political Constitution, since the possibility of applying a special, ad hoc procedure to a bill infringes the principle of legal certainty, the right to political participation, representation, as well as the democratic principle and the right of amendment.

"Accepting the possibility that the Assembly may apply special procedures to the processing of amendments to its Regulations and bills, under the terms established in Article 208 bis, without having previously defined the procedural rules to be followed, constitutes a clear harm to the principle of legal certainty and the democratic principle, since this would be the only way for deputies (diputados) to know in advance and with sufficient notice the procedure to which they would be subject and thus exercise the corresponding participation and control mechanisms. I have pointed out that, if the legislator did not clearly establish the procedural rules for applying what is intended in Article 208 bis, omitting to establish regulations or legislative practices, it would incur in an evasion or breach of its constitutionally assigned duties. Article 208 bis, in the terms in which it is drafted, means that whenever the majorities decide, they can—as is already happening—by means of a privileged motion (moción de orden), grant an exceptional procedure (trámite de excepción) to the bill being processed, and its discussion would be conducted under procedures not established in the Regulations, that is, in a situation of legal uncertainty. Leaving the procedure to be applied in each specific case to the discretion of a Nombre3382, without it being previously made known to all members of Parliament, causes harm to the democratic principle to the detriment of minorities, insofar as nothing guarantees that under the proposed scenario minorities will not be affected in the exercise of their representatives' constitutional rights in Congress.

What happened in the procedure approved to hear the consulted bill is a clear example of what has already been indicated, since, being a privileged motion (moción de orden), it does not, in principle, need to be publicized with sufficient advance notice, regardless of its complexity. Nor are motions to modify it admissible, since it would have to be a new proposal, for which the other political groups (fracciones) have an extremely short, almost immediate amount of time, and once the motion is approved by the majorities, there is no other option but to submit to the limited participation granted to them in the created procedure. I have also considered under this hypothesis that the right of amendment is violated.

Every deputy (diputado) holds the constitutional right to participate in the law-making process and thus influence its definitive content. Certainly, the Legislative Assembly has the power to establish its own regulations, such as establishing special procedures; however, the manner in which they are being authorized is harmful to the principle of legal certainty, the right to political participation, the right to representation, as well as the democratic principle and the right of amendment of deputies (diputados), insofar as the omission to regulate such procedures with the necessary advance notice and participation of all deputies makes them nugatory. For further support, the dissenting vote (voto salvado) that I signed in the aforementioned ruling from the year 2012 is transcribed:

"IX.- DISSENTING VOTE (VOTO SALVADO) OF MAGISTRATE Nombre4607 AND MAGISTRATES Nombre4608 AND CRUZ, WITH THE WRITING BY THE LATTER. The unconstitutionality of Article 208 bis of the Regulations of the Legislative Assembly, as well as its application to various legislative procedures, has been the subject of repeated challenges before this Chamber, in which this Chamber, by majority, has considered it to be in conformity with the Constitution, starting from ruling 2008-7687, adopted with the dissenting vote (voto salvado) of Magistrate Nombre4607, Magistrate Cruz, and Magistrate Nombre4608, which we reiterate on this occasion and declare the action granted for the following reasons:

As a starting point, it is necessary to reiterate what was expressed by this Chamber in ruling number 2011-04778, issued at two thirty-one p.m. on April 13, two thousand eleven, regarding the nature of Parliamentary Law and the limits of the Chamber's competence in matters of legislative procedure:

'Nature of Parliamentary Law and limits to the Chamber's competence in matters of legislative procedure. The fundamental mission of parliaments is to adopt decisions with the participation of the set of political forces representing the various sectors of civil society. Parliamentary law serves an instrumental function for that end—although it also has a political function—to facilitate and order that process. This law has the characteristic that it arises as a product of the "interna corporis", of the capacity for self-regulation and the own dynamics of parliaments. In that sense, it is not a law that is created premeditatedly, but rather one that is discovered, that is born from practice; therefore, the customary aspect (custom) and the interpretive aspect are of great importance. In that sense, the power of self-government of Parliaments has a solid tradition and historical justification. Parliamentary law is characterized by being spontaneous, dynamic, and flexible. It is nourished by daily life, by the political reality in which it operates and where constant transformations occur that require normative responses, often contrary to the classic dogmas of other legal branches, as is the case, for example, of the principle of singular non-derogability of the regulation, which receives a different treatment from that of administrative law, and yields—on some occasions—in the parliamentary sphere to the dynamism required by parliamentary procedures. Its limit, of course, lies in the Constitution, in the principles and values of the ideological regime in which it operates. For that reason, this Chamber has recognized that its function in matters of legislative procedure is solely to declare those substantial defects (vicios sustanciales) that violate the constitutional principles and values applicable to the matter, because otherwise it would be affecting the self-regulatory and functional capacity of the parliament (interna corporis), distorting its role as guardian of constitutional supremacy into that of a kind of Ad hoc senate (ruling number 2007-9699, issued at ten o'clock a.m. on July 4, two thousand seven). Thus, as this Court stated in ruling 2005-07961, issued at five fifty p.m. on June 21, two thousand five:

"The self-determination of Parliament over its internal actions—repeatedly recognized by this Court—, "interna corporis", is one of its essential powers expressly recognized by the Political Constitution in its Article 121, subsection 22), and which is inherent to the democratic system. The objective pursued with the attribution of the competence for the Assembly to self-organize is that, through it, its procedures for action, organization, and functioning, and consequently its internal organization, are regulated within the parameters required by the democratic, equality, and non-discrimination principles, with all their derivatives. This power is exercised with absolute independence from the other organs of the State—by virtue of the principle established in Article 9 of the Fundamental Charter—and has as its limits: compliance with the Law of the Constitution, that is, the set of constitutional values, principles, and norms, among which are those mentioned supra; respect for the principles of reasonableness (razonabilidad), rationality (racionabilidad), and proportionality, in such a way that those who exercise public powers cannot, by action, omission, or simple material action not based on an effective administrative act, violate or threaten fundamental rights, since in a democratic State there exists a constitution of freedom, whose purpose is to guarantee the individual the full enjoyment and exercise of human rights, which are currently recognized in the Political Constitutions of the Nombre3382 of the countries and in international human rights treaties (International Human Rights Law). It is not legitimate, then, to use powers for other purposes not assigned by the legal system (vice of misuse of power - vicio de desviación de poder) or beyond what is reasonable (vice of excess of power - vicio de exceso de poder). Having said the above, the Chamber believes it should not interfere with the right of self-regulation of Parliament, unless, as previously stated, any of the indicated principles is violated, which in this specific case would imply the affectation of the right of amendment, understood as the participation mechanism that deputies have to influence the law-making process. In this way, the powers of the Chamber in this matter are exercised under the perspective of an arbitrator, who moderates and contains excesses but does not interfere with an intrinsic constitutional power granted to another constitutional organ, so that only in the face of evident or gross violations of the constitutional principles governing parliamentary law would its intervention be legitimate. Parliament has the right, in the exercise of its own power of self-regulation, to reconcile or balance, in the face of concrete situations, not only the right of amendment but also the other constitutional principles that also bind its actions, such as respect for majorities and reasonableness; that is, the harmonization of each and every one of the constitutional principles that must coexist during the legislative procedure is a competence belonging to Parliament, and specifically to the Director of the debate and the deputies, and it should be presumed that such functions are performed in accordance with the legal system and its principles [...]". (The highlighting is not from the original).

Said ruling emphasizes that the intervention of the Chamber in matters of legislative procedure, as indicated, should only occur:

"[...] in the event of the use of these powers with evident abuse of power, resulting in the annulment of a right and not in its harmonization with the rest of the constitutional principles of parliamentary law [...] The contrary would imply, in our judgment, disrespect for the power of self-regulation and the democratic principle. The Chamber must not, therefore, become an instance substituting the exercise of constitutional powers and political debate and dialogue, unless, as indicated... the content of some fundamental right is suppressed or annulled." The democratic principle. Our minority vote grants the claim, based on the same grounds already expressed in the dissenting votes (votos salvados) to rulings number 2005-398, 2008-07687, and 2007-2901 issued at 5:30 p.m. on February 28, 2007, starting from the democratic principle, respect for which is essential for any examination of the conformity or non-conformity of any norm or act with the Constitution. On this matter, this Chamber has expressed, unanimously, that:

"what the legislative procedure aims to ensure is compliance with the democratic principle within a society that has adopted it as its own for its political institutions. Because perfect democracy is an unattainable ideal, the democratic principle constitutes the parameter that allows deducing the degree of proximity that a given society achieves, at a specific historical moment, with respect to the ideal and its vocation to approach it as closely as possible. As a minimum, the democratic principle demands respect for the principles of political participation and representation—including everything concerning respect for minorities—the basis of our political system. This latter unfolds into aspects such as the legitimacy of the means used for the designation of the various representatives and—no less important—the possibility of opposing, through the use of legitimate means, the majority will by groups representing minorities. Based on the foregoing observations, it can be said that procedural violations that constitute harms to the democratic principle—an unavoidable direction of parliamentary activity—are unconstitutional. Likewise, legislative procedures that, due to being rushed or impetuous, cause debates that lack a calm process in quality and reflection, and that also suffer from a broad projection of legislative activity, as guaranteed by Article 117 of the Political Constitution, constitute substantial infractions. In addition, the omission of publication and the omission to carry out the constitutionally established mandatory consultations have been considered substantial defects (vicios sustanciales) of the procedure. Regarding the first aspect, since the Legislative Assembly is a representative body of the national community, the publicity of parliamentary procedures is essential, because sovereignty resides in the people and deputies are only its representatives (Article 105 of the Constitution); therefore, its activity must necessarily transcend to the entire community, to such an extent that some constitutional law specialists define it as an organ of publicity" (ruling number 2012002675 issued at eleven fifty-two a.m. on February twenty-four, two thousand twelve).- Nombre2042 is a representative democracy, which does not imply that the rulers at a particular historical moment can make their decisions without listening to the voice of those who gave them such a mandate, that is, the will of the people as sovereign power. This clarification is valid, since in the absence of a mechanism used to intuit the citizen's will, the only possible mechanism in a democracy is to open the doors to dialogue, to calm, thoughtful discussion, with openness; otherwise, we would run the risk of falling into a "democratic tyranny," grossly violating the democratic principle, which is what guarantees the inhabitants of our country that the Nation's interests will be jealously guarded and for the good of all. It is necessary to indicate, for the purposes of this reasoning, that one thing is a reform of the Regulations aimed at ordering and adjusting to the times (two-party system - multi-party system) in its daily work, so that the Legislative Power is more effective in regulating the situations occurring in the country, and quite another is to generate reforms to a specific article for the processing of a specific case. Our Fundamental Charter does not regulate the manner in which the regulations of the Legislative Assembly must be reformed; therefore, this normative text itself has had to regulate the procedures that have been deemed appropriate and consistent with the Law of the Constitution, which is essential to guarantee legal certainty, the right of representation, and the protection of the democratic principle within the legislative procedure. The power that this organ has to issue the rules of its interna corporis is indisputable, provided for not only in the Fundamental Charter in subsection 22) of Article 121, but also inherent to the democratic system and specific to the Legislative Assembly as a constitutional power. Therefore, the Chamber has also recognized this self-regulatory power, and for that reason, from that perspective, it has clearly been considered that Parliament has the power to establish special procedures, if it deems it appropriate, but that these must be defined expressly and in detail, since, otherwise, accepting the possibility that the Assembly may apply special procedures to the processing of amendments to its Regulations and bills, under the terms established in Article 208 bis, without having previously defined the procedural rules to be followed, constitutes a clear harm to the principle of legal certainty and the democratic principle, because according to the expressed criterion, it is the only way for deputies to know in advance and with sufficient notice the procedure to which they will be subject and thus exercise the corresponding participation and control mechanisms.

Legal certainty. If the legislator did not clearly establish the procedural rules to apply what is intended in Article 208 bis, or forgot to establish regulations or legislative practices, it would incur in an evasion or breach of its constitutionally assigned duties. The introduction of the cited norm into the Regulations, in the terms in which it was approved, means that whenever the majorities decide, they can—as is already happening—by means of a privileged motion (moción de orden), grant an exceptional procedure (trámite de excepción) to the bill being processed, and its discussion remains in light of procedures not established in the Regulations, that is, in a situation of legal uncertainty.

Principle of publicity. Regarding the principle of publicity, as well indicated in the majority vote, the procedure is created through a privileged motion (moción de orden), which, according to Article 153 of the Regulations, can be presented at any time during the debate, proceeding to its discussion immediately. They do not require being announced except at that very moment, which is insufficient for it to be reviewed by the deputies prior to its adoption. Therefore, leaving the procedure to be applied in each specific case to the discretion of a Nombre3382, without it being previously made known to all members of Parliament, causes harm to the democratic principle to the detriment of minorities, insofar as nothing guarantees that, under the regime and application of Article 208 bis of the Legislative Regulations, minorities will not be affected in the exercise of their representatives' constitutional rights in Congress. Once the motion is approved by the majorities, the minority political groups (fracciones) have no other option but to submit to the limited participation granted to them in the created procedure.

Unreasonable restriction of the right of amendment and others. Every deputy (diputado) holds the constitutional right to participate in the law-making process and thus influence its definitive content. Although the Legislative Assembly's power to establish its own regulations is recognized, such as establishing special procedures, however, the manner in which it authorizes it is harmful to the principle of legal certainty, the right to political participation, the right to representation, as well as the democratic principle and the right of amendment of deputies, insofar as the omission to regulate such procedures with the necessary advance notice and participation of all deputies makes them nugatory.

In summary, Article 208 bis of the Regulations of the Legislative Assembly constitutes an element of total rupture with the indicated principles and allows that, through a motion approved by two-thirds of the deputies (diputados), the Legislative Power may attack its condition as the organ that guarantees popular representation, according to the design structured in Title Nine of the Political Constitution of 1949, to the substantial detriment of the democratic principle.- The undersigned are aware of the implications of annulling that norm, through which numerous laws have been approved, some of special importance for the country. However, since the application of that procedural norm has been carried out under the protection of a constitutionally consolidated practice by virtue of this Chamber's own jurisprudence, it is appropriate to apply, in the present case, the "ex nunc" effect of the granting ruling, by virtue of the doctrine expressed in ruling 1-92 issued at 2:00 p.m. on January 7, 1992, and repeated in ruling 2-92, issued at 2:15 p.m. on the same day, in the sense that:

"...the interpretation that, as of the cited resolution, the Chamber gives to Article 195, subsections 4 and 7 of the Political Constitution, in its function as interpreter of the Fundamental Charter and to whose precedents and jurisprudence binding force 'erga omnes' is recognized, does not generate 'per se' the unconstitutionality of other amendments approved prior to that ruling that did not obtain a qualified Nombre3382 in the three debates of the two legislative sessions. On the contrary, all of them were incorporated into the Fundamental Charter under the protection of a consolidated constitutional practice, from the unchallenged decision of the President in the session of October 29, 1962, which must be understood as corrected as of the new interpretation established by the Chamber, so its effects are strictly limited to those produced in the future, but it must never be understood that through its means others prior may be affected, because if so, the principle of 'legal certainty' would be violated. Consequently, the corrective criteria that, in matters of constitutional amendments, this Chamber issues in the exercise of preventive constitutional review (control preventivo de constitucionalidad), must be understood with ex nunc effects and not ex tunc, all within the philosophy that the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) embodies, in the chapter concerning legislative consultations of constitutionality and the principle of legal certainty, previously referred to." Although the aforementioned criterion has been held by the Chamber in relation to corrective criteria in matters of constitutional amendments issued in the exercise of prior constitutional review (control previo de constitucionalidad), it is not only valid, but necessary, to apply it to the present case, no longer in the exercise of consultative control (control consultivo), but in a contentious case, for two reasons: first, because by virtue of the fact that the Constitution and, derived from it, the jurisprudence of the Chamber, are the foundation and root of legal certainty, both for the Supreme Powers and for all public entities, private individuals, and even for third-party States through the adoption of agreements and treaties; when the Legislative Power has adopted agreements and approved laws through the application of rules of procedure constitutionally valid at the time of their application and with the backing of the Constitutional Court, legal certainty would collapse if, in cases such as the present one, when the prevalence of a criterion on the constitutionality of a procedural norm applied in good faith by the Legislative Power, repeatedly, over time, is reversed, it had an ex tunc effect, as declarations of unconstitutionality of substantive norms, including constitutional amendments themselves, usually have in principle. Second, the second paragraph of Article 91 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) provides that: "The constitutional annulment ruling may graduate and dimension in space, time, or matter, its retroactive effect, and shall dictate the necessary rules to prevent it from producing serious dislocations of social security, justice, or peace." Therefore, in this case, it is necessary, in order to avoid these serious dislocations, to dimension the effects of the granting ruling, a power that this Chamber has already used on various occasions (see, for example, ruling number 01698-12 issued at twelve twelve p.m. on March 5, nineteen ninety-nine; 3410-92 issued at two forty-five p.m. on November 10, nineteen ninety-two; and 2010-021258 issued at two p.m. on December 22, two thousand ten). For the foregoing, the claim of deputies Manrique Oviedo, Jeannette Ruiz, Ana Eugenia Venegas, and Gustavo Arias Navarro that, in the event that Article 208 bis of the Legislative Regulations is declared unconstitutional, all laws approved through the special procedure provided for in that norm be declared unconstitutional, is dismissed; instead, the effects of the ruling are dimensioned in the sense that the unconstitutionality does not affect, in this case, the laws and agreements approved through procedures carried out in application of the challenged norm, except for those legislative procedures that have not been approved in the first or second debate (primer debate, segundo debate) by the date of publication of the respective notice.-" Thus then, having considered that Article 208 bis of the Regulations of the Legislative Assembly is unconstitutional, it follows that those bills that may have been approved in application of said norm would also be unconstitutional in form, as is the case with the challenged law.

In conclusion.- In accordance with the indicated procedural reasons (violation of the principle of technical reasonableness) and the additional procedural reasons (violation of Article 167 of the Constitution, the principle of judicial independence, and for the use of the abbreviated procedure), I consider that the brief period established in the challenged norm violates the right to obtain a dignified, proportional, and reasonable pension, the principle of equality, the principle of progressivity of social rights, the principle of legitimate expectations (principio de confianza legítima) and consolidated legal situations (situaciones jurídicas consolidadas), in addition to international regulations.

Telf6218 ... See more Content of Interest:

Content Type: Dissenting Vote (Voto salvado) Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: PENSION Subtopics:

NOT APPLICABLE.

Dissenting Vote (Voto salvado) of Magistrate Salazar Alvarado and Magistrate Picado Brenes.

With due respect, we subscribe to this dissenting vote (voto salvado) and separate from the majority vote, with the following arguments:

A.- Regarding the reference to the legislative procedure followed in Law No. 9544, concerning the lack of consultation with the Judicial Branch (Poder Judicial) and the omission of the institutional consultation required by Article 167 of the Political Constitution, as well as concerning Article 208 bis of the Regulations of the Legislative Assembly.

On these points, we consider it unnecessary to repeat the arguments regarding the legislative procedure followed for Law No. 9544 of April 24, 2018, which were addressed in Ruling No. 2018-005758 issued at 3:40 p.m. on April 12, 2018 (dissenting vote - voto salvado - of magistrates Cruz Castro, Salazar Alvarado, and Hernández Gutiérrez), reiterated in Ruling No. 2021-11957, issued at 5:00 p.m. on May 25, 2021 (dissenting vote - voto salvado - of magistrates Salazar Alvarado and Hernández Gutiérrez). Likewise, those arguments are already in the case file, specifically in the interlocutory decision (resolución interlocutoria) No. 2022-008712 issued at 9:10 a.m. on April 20, 2022; therefore, we refer to the reasons duly expressed and recorded there. However, for a better understanding, we leave as an epitome of those rulings that the procedural defect (vicio de procedimiento) affected Bill No. 19,922, regarding the violation of Article 167 of the Political Constitution; and, consequently, Law No. 9544 in its entirety, and that only the taking of a position was necessary for there to be a unanimous vote (voto de toda conformidad) (Article 60.2, Civil Procedure Code - Código Procesal Civil). Thus, on the merits (por el fondo), we address the issue regarding the legislator's omission of having failed to consider the factors of time served, gender, and age for the differentiated pension allocation between men and women, and the rejection of those claims due to the absence of technical studies in the specific Costa Rican context.

B.- The problem of reasonableness (razonabilidad) and proportionality.

From the point of view of Constitutional Law, it is clear that any legislation approved by the Legislative Assembly must be protected under the Social State of Law (Estado Social de Derecho). Assuming the contrary would imply accepting that the state apparatus would be authorized and legitimized to adopt unjust and arbitrary measures, which by definition would be contrary to fundamental rights and the common good. Fortunately, due to the hierarchy of the Law of the Constitution, its norms, due to the strength and resilience of superior norms of the legal system, are enforceable, and this has formal implications in the law-making process, and materially safeguards the content of fundamental rights. It is thus that the conformity of all actions of public power (laws and public acts in general) requires being in accordance with the ideology of the Political Constitution, and the binding obligations of international human rights regulations, including that international labor legislation, and the general principles of International Law.

The problem attributed to the challenged Transitional Provision (Transitorio) is whether it lacks a technical basis to support the eighteen-month period granted for the application of the new reform, which involves the technical reasonableness (razonabilidad técnica) of the norm regarding the proportionality between the means used and the end sought by the norm, within the context of pension systems.

In effect, for the foregoing, we must bring up the opinion of this Constitutional Chamber, No. 2017-0011714 of 12:00 p.m. on July 26, 2017, in which it analyzed a bill that allowed the transfer of insured persons under the Disability, Old Age, and Death Regime administered by the Costa Rican Social Security Fund to the National Teachers' Union; and, on that occasion, it was established that:

"In this matter, it is essential that the Legislative Assembly have technical studies demonstrating that the entry into force of the Law will not affect the financial sustainability of the Costa Rican Social Security Fund regime, especially in the current situation, where its sustainability has been questioned, as has been known to the public. In the absence of technical studies in this direction, and having demonstrated that the bill entails an impact on the Reserve of the regime, there is no doubt that a violation of constitutional numeral 73 has occurred. The situation would be very different if the technical studies existed, since if no impact on the financial sustainability of the Disability, Old Age, and Death regime is demonstrated, the legislator, constitutionally speaking, would have no impediment to exercising the power to legislate. As is well known, this Court has required in environmental matters the need for technical studies to reduce protected areas, and has concluded that this omission constitutes an essential defect in the legislative procedure (see advisory opinion No. 2012-13367). Following that same doctrine, the optional legislative consultation of constitutionality is resolved, in the sense that the Bill entitled: 'Reform of the Pension and Retirement System of the National Teachers' Union,' legislative file number 17,561, is unconstitutional for violating Article 73 of the Political Constitution, since it lacks a study that technically and scientifically determines the real impact on the Reserve of the Disability, Old Age, and Death regime of the Costa Rican Social Security Fund, a defect that is essential to the legislative procedure." In addition to the interpretation given by the Chamber, we consider it important to add to the foregoing reasoning that there are specific international obligations that compel the country to technically support changes and reforms that affect pension regimes. In this sense, technical studies are essential to demonstrate that the means used are appropriate to the proposed legal purposes, without leaving unprotected persons who may maintain their rights and legitimate expectations.

When a modification or legal reform to a pension regime is sought, it logically revolves around the interest of seeking a positive impact on the fund and its benefits. But, as happened with the case transcribed above, the absence of an actuarial technical study was manifest and evident, which affected the determination of the "… real impact on the Reserve of the Disability, Old Age, and Death regime, a defect that is essential to the legislative procedure." It is clear that when the Social State of Law must exercise the initiative for the reform of a pension regime, the fundamental basis is financial equilibrium, as established in international legislation, which will be addressed below. In this sense, when eliminating risks, it must be demonstrated that there will be a positive impact on the reserve, to guarantee sustainability and financial equilibrium, and the future granting of benefit rights. Thus, it is the responsibility of the technical study to mark the course to support the measures that legislation must take for a reform to be adequate to support current and future benefits.

By Judgment No. 2020-19274 of 4:30 p.m. on October 7, 2020, the Chamber had the opportunity to assign normative force to Article 71, of Convention No. 102, of the International Labour Organization, regarding the distribution of contributions and taxes, as well as employer and state contributions, and held that:

"… the right to social security at the international level must be characterized because it is composed of a minimum level of benefits that include at least basic health care, cash sickness benefits, unemployment benefits, old-age benefits, employment injury and occupational disease benefits, family benefits, maternity benefits, invalidity benefits, and survivors' benefits, all in accordance with Convention No. 102, of the International Labour Organization. The right to social security and social protection refers to the right that social security coverage cannot be denied arbitrarily or unreasonably, and the right to equality in the enjoyment of adequate protection in the event of unemployment, sickness, old age, or lack of means of subsistence, in circumstances beyond the person's control." Furthermore, it was indicated that:

"… the Convention constitutes a mandatory frame of reference for the States; that is, it contains provisions that are the basis of the regulations that they may subsequently approve according to the different types of coverages to which they are obligated. It is worth mentioning, as has been indicated on other occasions, that States may improve those standards. Adhering to that regulatory framework, Part XIII of the aforementioned Convention contemplates other 'Common Provisions' to the coverages offered to the insured, among them the causes of suspension, the possibility of judicially discussing matters related to the rights involved, as well as the rules generally governing administration. This means that they are rules that amalgamate and unite some aspects of the coverages; and, consequently, some administrative aspects must be considered together.

In this way, it contains two fundamental principles, the principle of financial solidarity (collective financing and financial solidarity in documents of the International Labour Organization) and the principle of State responsibility, where the former states the obligation contained in paragraph 1), of Article 71, of the indicated Convention No. 102 (…).

(…) the principle of State responsibility in the provision of benefit obligations would be present in the same Article 71, but in paragraph 3), of the mentioned Convention No. 102. Said provision states:

'The Member shall assume general responsibility for the provision of benefits granted in application of this Convention and shall take, when appropriate, all necessary measures to achieve that end; it shall guarantee, when appropriate, that the necessary actuarial studies and calculations relating to equilibrium be carried out periodically and, in any case, prior to any modification of benefits, of the rate of insurance contributions, or of the taxes destined to cover the contingencies in question.' It is clear how the State is the guarantor of the country's pensions. This numeral establishes a series of State guarantee obligations, especially referring to leadership regarding the provision of benefits granted, which includes the formalities that must be observed when exercising the implicit obligation to monitor and materialize all measures involving the preservation of pension funds, including corrective ones." The international obligation established in Article 71.3, of Convention No. 102, of the International Labour Organization, regulations that govern the issue of balances and imbalances of pension and retirement funds, obliges the State—as the main party responsible for maintaining the pension funds—to surveillance and control, but referenced with technical support.

From the norm derives the general responsibility that implies both when the State assumes the administration of the funds, and when it does so indirectly. In this sense, it always assumes the international commitment to ensure and control the effective materialization of benefits—present and future—granted in the Convention. In this way, it must be an active subject in the surveillance and control of measures that allow those benefits.

Since pension funds are not static, the principle of State responsibility translates into permanent surveillance and control over benefits, their fluctuations, and whether the rights can be maintained over time. That is, it is required to maintain the sufficiency of resources, so that the level of benefits can be maintained with premiums and/or contributions, taxes, and administrative expenses, an obligation that corresponds to the State, or the party responsible for maintaining them over time.

It is important to mention that Article 71, of the cited Convention No. 102, was fundamental in the judgment of this Chamber that resolved the problem of solidarity taxes and contributions to high-profile pensions, by applying the conventional limit to those contributions at 50% of salaries/benefits. With this, the numeral was considered binding for the Costa Rican State, so that by parity of reasoning, it must also be a norm that defines and determines everything that must be resolved in this matter.

In the case at hand, when the reduction of rights and benefits of pension regimes begins, we consider that there is a risk that some of them may be lost in the process without clear justification, and that it goes against international standards, when these rights cannot be made effective. The Social State of Law must allow an adequate reading of the loss of benefit rights, which, although operating within an economic context, must find limits, among which must be that it cannot disregard the elapsed time of contributions based on salaries and contributions. Article 71, under consideration, should be treated as protection against the arbitrary decrease of benefits, against the unjustified dismantling of protection, whether through insufficient or omitted actuarial studies, all of which would be non-conforming for going contrary to the international obligation, and because the rights must also be carefully defended to prevent the unjustified loss of rights to social protection. We must ask: does it only protect benefits in progress or granted? The answer should be no; for this, it is required that reform bills contain a transitional rule, for the economic field should not be abstracted from the implications that its decisions have on economic, social, and cultural rights, which are also reasonably enforceable benefits. They can neither be considered isolated compartments, nor one dominated with respect to the other except through a reasonable exercise and weighting of the rights and interests involved. The legislator's freedom of configuration is not denied; however, it is important to remember that it has the limits established in the Law of the Constitution (values, principles, and rights), and more so when it is subject to the technical studies that are legally enforceable, as has been established by the jurisprudence of the Chamber.

We consider that the obligations arising from this numeral 71.3, of Convention No. 102, require that the formulation of legal reforms respond to the behavior of the funds and their sufficiency, and that these amendments respond to precise and correct technique at two moments: a) when appropriate to exercise periodic control due to the movements inherent to functioning and management, and b) in any case, "prior to any modification of benefits, of the rate of insurance contributions, or of the taxes destined to cover the contingencies in question." What is established in this norm allows for securing protections in favor of the agreed benefit rights, especially those granted, to bind reforms or amendments to the pension system to a mathematical technique linked to actuarial studies and calculations that reflect the condition of a resource equilibrium, which is the international obligation acquired by the Costa Rican State.

As was done in the aforementioned Judgment No. 2020-19274, in which reference was made to the General Survey concerning the social security instruments, carried out in light of the 2008 Declaration on Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35, of the Constitution of the International Labour Organization), Report III (Part 1B), held at the International Labour Conference, 100th session, 2011, and which on this occasion, it is also important to transcribe the following:

"465. The Committee wishes to stress that the sound financial and legal management of social security systems undergoing reforms could be considerably facilitated if an actuarial assessment had to be carried out prior to their submission to parliaments. The Committee has observed that all too often, changes in social security legislation are made hastily, taking into account immediate interests without having previously carried out a substantive financial and economic analysis of the effects of the reform and the possible costs that society will have to face. Observing that this is a rather common situation even in developed countries, it considers it likely that it also extends to developing countries. There is no doubt that social security must be governed by legal norms, but if laws are modified, the clarity that independent actuarial assessments provide regarding the corresponding repercussions is essential not only from a short-term perspective with which governments usually evaluate such effects, but also from a long-term perspective regarding the impact that any new law may have on the financial sustainability of the system.

466. If social security legislators were to approach actuaries to work together to the extent possible, the latter, in turn, should do the same by adopting a proactive approach with respect to social security legislation. An actuarial study should contain clear and objective observations on any matter affecting the financial condition of a social security regime, pointing out the deficiencies of the legal provisions governing the functioning of said regime. These deficiencies in national legislation could be detected by comparing said legislation with the minimum standards of Convention No. 102 and, through the formulation of alternative hypotheses of future development, determine the probabilities that a national social security regime is sustainable. Actuarial studies and reports are important tools for legislators and national policymakers to take measures aimed at complying with the ILO standards relating to social security; such tools are useful in case the reforms aim to improve social protection levels, but otherwise, they become vital" (emphasis is original).

In this way, the need to grant pro-fund protection in accordance with actuarial technique is addressed, and we also argue that it must allow the necessary space to resolve relevant questions about changes to the economic and social rights it grants. Opportunistic and hasty approaches to reforms are completely discarded, due to the social cost they entail. But it must be clear that any legal reform to the pension system requires, on the one hand, the substantive analysis from an economic and financial perspective, and also the other, immediate side, regarding the implications for the protection of present and future rights. All of this, it is possible to affirm, derives from Article 71.3, of Convention No. 102, of the I.L.O., which is established as the other international obligation.

From all the foregoing, we conclude that one of the main purposes of the cited Article 71 is to serve as a safeguard mechanism against the erosion of social security benefit rights, within the broad section of economic, social, and cultural rights, as it seeks equilibrium in a dual sense: protection in favor of those who require assistance when the foreseen contingency occurs, and the other, to serve as a postulate in favor of the rationality of the measures to ensure the perpetuity of the fund without incurring arbitrariness and lack of protection. It must be clear, as has been affirmed in the control bodies for economic, social, and cultural rights in Europe, where it is stated that both cuts and costs should be collectively supported, in an equitable manner by society to first avoid affecting persons of lesser means, taking into account the economic situation of the country and the class of protected persons. In our country, Article 73, of the Political Constitution, establishes to a large extent the compulsory contribution of the State, employers, and workers, among other forms of financing.

Observance of Article 71 ensures the fundamental purpose of social security systems: to grant rights from an actuarial point of view, and to maintain them once granted as acquired rights and consolidated legal situations, especially when they are incorporated into private assets. In such cases, measures must be adopted to promote the sufficiency of resources in favor of the pension fund; that is, through legal reforms so that it can operate at optimal levels of protection, with equilibrium in favor of Social Security protection. The same should be understood, from the point of view of granting rights, namely that it must not be detached from the substantial aspects of Economic, Social, and Cultural Rights, in order to prevent the unnecessary deprivation and restriction of potential rights, when what is involved is adjusting them, limiting them, or even slowing down the granting of benefit rights, but only when adequately supported by technical studies. Of course, it must be insisted that this should not be understood as a dismantling of the Social State of Law.

By virtue of the pro-person protective principles, which privilege, prefer, and favor the application of norms that offer greater protection to the rights of the human person, whether in a legal, constitutional, or Human Rights norm, we consider that it advises that a reform to the pension system should protect those who are in better conditions regarding contributions, time of service, and age, and with a sufficient technical base that grants these factors. A reform to the pension system—even applying the pro-fund principle—would be unreasonable if it did not take these factors into consideration. Ignoring the concrete contributions of a worker's premiums delivered to a specific pension and social security system, sustained over time, generally through a very long career of service, must be addressed by these actuarial studies. Only in cases of national economic collapse could serious measures be taken against these rights in the process of consolidation.

Therefore, we consider that the actuarial study must not only reflect the economic condition of the fund, but must also have another aspect, such as the accommodation of workers who are in better conditions regarding contributions, time of service, and age, and with a sufficient technical base that gives preeminence to the time of contribution, a factor that has an intimate relationship with the economic part of the fund. We believe that this increases and maximizes the possibilities of recognizing benefit rights, even when they have not yet become acquired rights.

Regarding the technical reasonableness of the norms approved by the legislator, this Chamber has indicated that: "As for the first, it should be noted that in the strict sense, reasonableness is equivalent to justice, thus, for example, a law that establishes scientifically or technically nonsensical benefits would be a technically irrational or unreasonable law, and therefore, it would also be legally unreasonable. In this sense, it should be noted that it is not the same to say that an act is reasonable, as to say that an act is not unreasonable, since reasonableness is a point within a range of possibilities or options, having an upper and a lower limit, outside of which the choice becomes unreasonable, by reason of excess or by defect, respectively" (Judgment No. 1994-00486 of 4:03 p.m. on January 25, 1994). Thus, we do not deny that the legislator has broad powers and freedoms in shaping the law, so that the reasonableness of a norm would be at a point of greater or lesser intensity within a permissible or constitutionally reasonable regulatory range, so it must also be concluded that what falls outside of it is unconstitutional due to deficiency or excess of the standard. We argue that Article 71.3, of Convention No. 102, of the I.L.O. provides normative coverage to legitimate expectations, unless one were facing an economic debacle, in order to disregard benefits to those who would otherwise have them. We must remember that state decisions must respect social security rights, and causes the provision to fall outside that permissible or reasonable regulatory range. Reducing what is established in the studied standard must be clearly justified, since these are Human Rights that, in effect, would be denied to those who are in better conditions to obtain a retirement or pension through the passage of time.

Nombre5650.- The problem of legitimate expectations without the proper use of an actuarial study.

1.- More on the international obligation.

In Judgment No. 2020-023789 of 7:00 p.m. on December 10, 2020, the Chamber established, regarding international obligations, that:

"Now, in accordance with Article 1, of the Law of Constitutional Jurisdiction, it is the responsibility of this Chamber to guarantee not only the supremacy of Constitutional Law, but also that of International Law. Therefore, it is the responsibility of this Chamber not only to establish the supremacy of the right contained in the Law of the Constitution when treaties necessarily refer to human rights matters, but also of International Law, when through its interpretation and application it is appropriate to declare its supremacy over that of laws, by virtue of Article 7, of the Political Constitution. (…) In this sense, since their ratification by our country, the international obligations it assumes should be producing lasting legal effects, which should be usual practice in those Human Rights treaties that seek to elevate human dignity, and whose obligations consist of protecting, safeguarding, and ensuring respect for those rights. In other treaties as well, when their purpose is to regulate—legally—and eradicate other national practices that endanger those rights, especially if they are linked to life, human health, and the environment. These types of treaties also seek the *effet utile* or what would be the same, to achieve lasting effects, legally speaking, as they involve common efforts and international cooperation in a specific area, because they acquire special international interest. Therefore, it is logical to associate binding commitments with control mechanisms for the agreed objectives, because they are not alien to them." The binding legal force of international obligations in Costa Rica is clearly revealed in Judgment No. 2016-006728 of 9:05 a.m. on May 18, 2016, in which it establishes that:

"The way in which international law shapes the national legal system was decided by the constitution-maker when establishing the normative hierarchy of the norms of international law. Although there may be different solutions to the way in which public international law relates to the national legal system, it reveals much the way in which it is incorporated, even more so the place that the original as well as derived constitution-maker assigns it in the normative hierarchy of the legal order, with the intention of assigning it a certain legal potency and resistance, added emphasis in some cases, for the coexistence of international law with the national norm, which would be: supra-legal where the legal operator faces a norm with cascading force and potency that displaces the inferior norm; or of equal rank, where the judicial authority interprets international legislation with a force and potency equivalent to that of laws, applying criteria of validity in time and space, and which, in order to avoid unnecessary conflicts between norms, must interpret international law along with customary international law. In these cases, it discards the national norm or interprets it in accordance with the international obligation, except in those jurisdictions where the legislator assumes its preeminent role of expressly rendering it without effect, under risk of violating the international order. In our country, the design given to the constitutional provision was intended to have very specific effects on the national legal system. In our case, of a monist origin, international law is incorporated once the legislative procedures for the issuance of a law that receives it are completed, with legislative approval, followed by sanction and publication, and finally the exchange of diplomatic notes or the deposit of instruments for the perfection of the international obligation—act of ratification. The way in which national law is impacted would logically depend on the nature of the commitments or international obligations agreed between States or juridical persons with the capacity to act at the international level. For example, the object in Human Rights Treaties is the human person, hence they are followed by their own mechanisms of interpretation such as the pro homine principle, which, as it is combined with the principle of constitutional supremacy, integrates and surpasses the constitutional text insofar as it produces added or even omitted protection by the constitutional norm, but increasing its legitimacy, in human dignity (see judgment No. 1995-2313, among others)." Article 71.3, of Convention No. 102, of the International Labour Organization, forms part of international labor law, and this must guide the resolution of this matter, since the international canon establishes a very specific standard that must be observed, because the State: "shall guarantee, when appropriate, that the necessary actuarial studies and calculations relating to equilibrium be carried out periodically and, in any case, prior to any modification of benefits" (underlining and emphasis are not original). We consider it obvious that the change of benefits includes current and future ones. The legislator has the possibility, by freedom of configuration, of establishing the new terms supported by the mentioned studies, but ensuring—except in moments of serious crisis and economic collapses—mechanisms that protect those persons in a greater position of expectation, those who would be in transition, for a matter of equity in interpretation, which must also be fair and balanced.

The positive international obligation accepted by the States imposes both the obligation to do certain things, as well as—not to do—against the rights without reasonable justification so as not to violate the norm. In the first of the cases, noting the imbalance of pension funds as occurred with the Judicial Branch, where there is no doubt that the State needs to approve adequate norms and policies to safeguard social benefits. But, in such an aspect, we must be clear that when decisions are made that mark a watershed in a Social State of Law, there are always obligations to do as well as not to do with respect to the rights that remain in a transition period. In such cases, it is valid to take age, time of contributions, and service as a reference, always in the interest of maintaining equilibrium of a fund, without failing to consider rights that could well have been protected because they are in transition. In this way, we insist that it is the responsibility of the State to doubly ensure the protection of those who contribute for future benefits, and with greater intensity, to agree on the protection of the legitimate interests of those who are gradually approaching fulfillment of the time and service requirements, and to an even greater degree, those who would be in transition.

The transitional provision must adjust these factors in order to protect these consolidating rights.

We believe that Convention No. 102 of the International Labour Organization does not authorize decision-making devoid of technical reasonableness; on the contrary, it imposes upon the party responsible for the funds—the State—the principles of reasonableness and proportionality, stipulating that any decision becomes more difficult to achieve without a technical basis, because this harms the substantive rights to a future and intergenerational benefit of those who have contributed more. The transitional provision must be suited to the rights of those who were in the fund, safeguarding a set of substantive rights based on time of service, age, and contributions, all viewed together in a fair and equitable manner, with a legitimate interest that is undoubtedly of greater intensity.

The question that arises here is whether the legislator can support the reform, without any consideration of the consequences it may generate for all affected persons, by aggravating substantive rights. We believe the answer must be negative in light of the international obligation.

In the legislative file (folio 4164), Deputy Natalia Díaz Quintana stated that:

“Another important issue in this text we are ruling on today, which I believe is also part of its transcendental reforms, has to do with the transitional provision; a transitional provision that was handled responsibly in the committee; a transitional provision that even allows the service servants (sic) and I read verbatim, it is the sixth transitional provision, that meet the ….

The Procuraduría had even told us that this transitional provision was not necessary, that even the provision or the law could take effect immediately for its application; however, also due to failures (sic) of the Sala Constitucional regarding the IVM regime, where eighteen months of transitional provision are established, we took this consideration to establish it and thus give the right to those who are eighteen months from retirement to avail themselves of the current regulations and not the law we are approving, in order to also respect these benefits.

Let us remember that pensions are not acquired rights, but rather an expectation of a right, so for that reason the transitional provision could be eliminated; however, we left it in the bill to open that eighteen-month window for those who wish to retire or who are about to retire within these eighteen months and who therefore can avail themselves of the current regulations.” At this point, it must be established that the international obligation of Article 71.3 of Convention No. 102 of the International Labour Organization has a legal character, being an instrument that carries consequences due to its normative hierarchy in the national order—including the legislator and judge—insofar as it obliges the will granted between subjects of international law to be adjusted, and as such, it must be applied in accordance with the principle of pacta sunt servanda and good faith. With this legal content, consequently, it is binding for the Costa Rican State, which acquires the character of a minimum basic standard of the international obligation, which would grant legitimacy by being based on technically balanced actions, ordered by higher-ranking and hierarchical norms, which obliges, in the first instance, that the adjustments do not negatively affect the pension funds, and that rights are not abused in the name of the fund's balance, without a reasonable justification based on economic difficulties that can be corrected in the future. In this sense, we consider it is clear that any improvement is preferred. The legitimacy provided by the international instrument is not only for the issue of resources but must also be extensive to the granting and respect of rights in transition. It would make no sense for the action to be based solely on mathematical considerations without considering Economic, Social, and Cultural Rights.

Through Ruling No. 2018-000230 of 10:40 a.m. on January 10, 2018, the Sala established that:

“… the legislator has discretion, within the framework of its right to free configuration, to establish the requirements of the activity, in order to protect the health of persons, without having to justify each decision through a technical study, except when there is an express provision on the matter (e.g., in environmental matters) or when the subject matter requires it.” In this sense, the final actuarial studies sought a twenty-four-month transitional provision for the consolidation of rights in transition. Thus, we believe it is necessary to conclude that the technical actuarial criteria are the objective instrument to support the reforms of the pension funds, which must justify the modifications and limitations to the benefits. Also, the transitional treatment after the reform's entry into force. But a modification that makes a transitional provision more restrictive must be based on a duly verified need.

The majority of the Sala refers to the final considerations of the actuarial study called “Producto 6 informe final: “Recopilación e informe final: Conclusiones y Recomendaciones” (Versión Final)”, the actuarial team discusses some relevant points of the reports, and includes the following assertions from the prospective hundred-year actuarial calculations performed for the Judicial Branch Retirement and Pension Fund:

“b. Regarding the "transitional provision" that would allow persons who would retire within a period of two years and the possibility of extending that transitional provision for persons who would retire within a period of five years.

An increase in the "transitional provision" postpones the adjustments and therefore negatively affects the Fund's income. To properly assess the effect of an increase in this transitional provision, it would be necessary to perform a complete actuarial analysis.

On the other hand, a decision in this direction may induce administrators and political agents to make efforts to include successively larger groups, so that in the end a "transitional provision" of two years would end up becoming a transitional provision of five, six, or even more years.

Finally, the extension of the transitional provision postpones part of the adjustments, so profitability and solvency analyses of the Fund may generate the impression that the adjustments that were made had no effect” (page 73 of the report).

It is important to mention that of the last Regulatory Frameworks analyzed, IICE3 and IICE4, they were considered solvent in the tests performed on them; that is, in the “base or intermediate” and “optimistic” scenarios. Moreover, they also refer to Producto 5, stating that “they proved solvent both with and without the inclusion of additional income from abandoned processes. These new proposed Regulatory Frameworks are self-sufficient and their operation does not require imposing burdens on the State or on Costa Ricans.” All of the foregoing allows us to conclude that it is clear that within the actuarial solvency that was presented to the Asamblea Legislativa, the two-year (twenty-four-month) transitional regulations were already “budgeted” or “contained.” The legislation must maintain the adjustments and the adaptation of the modifications to the individual circumstances of persons, from newly hired workers, who begin until they reach the period of membership and which transforms from a general interest into a concrete legitimate expectation based on age, time of contributions, and service of the working persons, as long as they belong to the regime. Pension regimes are long-term, and during said membership period, that interest will increase further, to that of a legitimate expectation that leads to the declaration of the right.

Not all reforms that safeguard the balance of pension funds are the same. We believe that the safeguarding of public resources in pensions directly charged to the national budget cannot behave in the same way as those with funds provided by worker contributions in pension regimes that receive employer and State contributions, and which, it must be said, arise from the international obligations acquired with the International Labour Organization. However, in both, there must be the mandatory contribution of the worker, the employer, and mainly the State, whose participation is part of the need for it to make its contributions on behalf of the national community, as it did in the case of pensions directly charged to the national budget and its five-year transitional provision.

The Social Protection Floors Recommendation, 2012 (No. 202), which compiles matters related to the principles concerning social security, maintains an intimate relationship with Convention No. 102. In it, it defines social protection floors as the “nationally defined sets of basic social security guarantees” (point I.2), but additionally in I.3, it compiles the principles on adequacy and predictability of benefits (c); respect for the rights and dignity of the people covered by the social security guarantees (f); sound, responsible, and transparent financial management and administration (j); financial, fiscal, and economic sustainability, taking due account of social justice and equity (k). In addition to other stated principles, it is clear that there must always be a rational balance regarding short and long-term costs and benefits. To achieve this, we believe that actuarial studies are required to guarantee that the necessary reforms and adjustments are necessary, justified, and respond to technical criteria. Hence, we believe that transparency, consultation, and social dialogue are important in any case, but more so when dealing with regimes directly or indirectly administered by the State, insofar as employers' and workers' organizations are involved. In this sense, the General Survey concerning the social security instruments of the International Labour Organization, cited previously, mentions that it should be expected that the trust placed in actuarial studies should be broad and disseminated, especially among decision-makers, so that “…it will be easier for governments to obtain the support of the social partners and achieve consensus on the changes to be made, if such changes are based on objective recommendations made by an independent actuary” (emphasis added).

There is also no doubt that the recognition of rights in the process of constitution and transition should be closely linked to the foregoing, based on social justice and equity, due to the non-economic social cost it entails, and because it is already recognized by the technical studies of the fund of interest, studies which are established by the same international legal order.

2.- Transition rights in the national and international corpus iuris.

From this point forward, it is necessary that we examine the existence of legal institutions developed by the jurisprudence of the courts of justice in our country, including the Sala Constitucional itself, which respond to the rationalization of the application of changes in law, based on considerations of equity and justice, especially when it has unjust and arbitrary effects on persons.

The doctrine of legitimate expectations, estoppel, and the doctrine of the Administration's own acts, all respond to the protection and construction of law as a true bulwark against injustice and arbitrariness, and the courts become a backbone of justice in society.

When the reforms occur, a minimum standard must exist that guarantees an environment of predictability, which is also a consequence of the democratic principle that obliges rational decisions to be made, in addition to the publicity of valid public acts and their efficacy. From publicity derives the obligation of private parties to adjust to the norms and provisions issued by public authorities, for having met the formal and material requirements that allow them to be considered valid, with the courts also admitting those that are apparently valid, and effective when they receive their publicity officially.

At the level of the European Union, the principle of legitimate expectations derives from the general principle of legal certainty (all derived from the principle of legality). It is the recognition that this legal institution comes from national laws. It is understood as the obligation of the authorities to be constrained not only by what the law expressly provides but also by their promises and the high expectations they create. In this sense, there is a legitimate expectation when actions are taken with a component of good faith, as persons must have their legitimate expectations protected, because they act on the basis of the texts of the laws, and their legitimate expectations created based on them must not be frustrated.

For example, it was recognized that Community measures that incentivized ceasing dairy production, and whose producers voluntarily submitted to that postponement in Europe, could expect that once the period was over, they would cease to have effect and they could resume the economic activity they suspended. In the Judgment of the Court of Justice of the European Union of April 28, 1988, Nombre79840 v. Minister van Landbouw en Visserij, it established that:

“26 Contrary to the Commission's assertions, such total and permanent exclusion, as long as the regulations on the additional levy remain in application, which has the effect of preventing the affected producers from resuming the marketing of milk at the end of the five-year period, was not foreseeable for those producers at the time they assumed, temporarily, the commitment not to supply milk. In fact, neither the provisions nor the recitals of Regulation No. 1078/77 show that the non-marketing commitment entered into under this Regulation could lead, upon its expiry, to the impossibility of resuming the activity in question. Such an effect therefore violates the legitimate expectation that the producers could have in the limited character of the effects of the regime to which they submitted.

27 It follows that the regulations on the additional levy on milk were adopted in violation of the principle of legitimate expectations. Given that these regulations must be declared invalid for this reason, it is not necessary to examine the other grounds raised during the proceedings against their validity.” For its part, that praetorian character that has spread in many countries also has, from the point of view of national jurisprudence, application in the Sala Constitucional. It has established, in Ruling No. 2016-008000 of 11:52 a.m. on June 10, 2016, that doctrine of legitimate expectations. The decision indicates that:

“However, we are dealing with a principle of jurisprudential origin evidently linked to questions of equity, which is why its application must be analyzed in each specific case. Let us remember that it has been conceived as a judge's reaction to safeguard the trust of the Administered, when the Administration surprises them with an unexpected change in its conduct. As the Spanish Supreme Court (Sala 3) resolved in a judgment of May 17, 2013: ‘In short, as stated by the STJCE of 12-5-1998, to annul an irregular act within the national law of a State, the Judge must weigh the conflicting interests in each case, and resolve by giving primacy, either to the principle of legality, revoking the act, which the general interest demands, or by giving protection to the legitimate expectation, in defense of the individual interest.’ Regarding the scope of the principle, the Spanish Supreme Court, in its rulings of February 21, 2006 (RC 5959/2001) and December 15, 2007 (RC 1830/2005), has concluded that ‘the virtuality of the invoked principle may entail the annulment of an act or norm and, at the very least, obliges a response, within the Community framework of the alteration (without prior knowledge, without sufficient transitional measures so that the subjects can adapt their conduct and proportionate to the public interest at stake, and without the due corrective or compensatory measures) of the habitual and stable circumstances, generators of well-founded hopes for their maintenance.’ In those same rulings, regarding the limits to the principle, it has stated that:

‘However, the principle of legitimate expectations does not guarantee the perpetuation of the existing situation, which may be modified within the framework of the discretion of the institutions and public powers to impose new regulations assessing the needs of the general interest.’ On the other hand, STS of 1-2-99 Az 1633 recalls that 'this principle cannot be invoked to create, maintain, or extend, in the sphere of public law, situations contrary to the legal order, or when a contradiction with the purpose or interest protected by a legal norm arises from the preceding act, which, by its nature, is not susceptible to sheltering discretionary conduct by the Administration that implies the recognition of rights and/or obligations emanating from its own acts. Or, stated differently, the invoked doctrine of "own acts" without the limitation just set forth, could introduce into the sphere of public law relations the principle of autonomy of will as an ordering method for matters regulated by norms of an imperative nature, in which the public interest safeguarded by the principle of legality prevails; a principle that would be violated if validity were given to an Administration action contrary to the legal order solely because it was so decided by the Administration or because it responds to a precedent of the latter. One thing is the irrevocability of one's own declaratory acts of rights outside the channels of review established in the Law (arts. 109 and 110 of the Ley de Procedimiento Administrativo of 1958, 102 and 103 of the Ley de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo Común, Ley 30/1992 [RCL 1992 \ 2512, 2775 and RCL 1993\ 246], modified by Ley 4/1999 [RCL 1999\ 114]), and another is the respect for the legitimate expectation generated by one's own conduct, which necessarily must be projected into the sphere of discretion or autonomy, not into that of the regulated aspects or normative requirements against which, in Administrative Law, what was resolved in an act or precedent that was contrary to those cannot prevail.’ In summary, the principle of legitimate expectations rests on the basis that the citizen adopts a behavior trusting that they are acting correctly, since the constant, stable, and long-standing conduct of the Administration reasonably generates such an expectation; in other words, the Administration has emitted external signs that have guided the citizen towards a certain conduct and made them trust, in good faith, that such a situation will persist. As stated by Meza Valencia (2013), 'the trust of the individual arises on the occasion of the birth, in the legal world, of a given word or promise from the administration, but it is strengthened and rooted with the chain of subsequent conduct assumed by the administration, as long as these are oriented towards strengthening and developing the word issued previously. Without the existence of such subsequent harmonious and coherent acts, the previously given promise loses its vocation for consolidating legitimate expectation.’ The foregoing does not imply that the Administration is compelled to keep an act contrary to the regulations in force irreversible. On the contrary, in the exercise of its public powers, the Administration can well remedy the poor application of the regulations or impose new regulations assessing the needs of the general interest. However, to do so, the State must respect the doctrine of its own acts, or else—especially when dealing with new measures or a sudden decision—proceed in a reasonable manner, that is, with the due anticipation communicate its new action, with sufficient transitional measures so that the subjects can adapt their conduct and proportionate to the public interest at stake, without excluding other types of corrective or compensatory provisions for the habitual and stable circumstances, which forge in the citizen well-founded hopes for the maintenance of a certain situation.

Costa Rican constitutional jurisprudence has already recognized this principle, as noted in the following precedents:

'(...) On the development of this principle and its deep constitutional roots, the national doctrine has stated the following: "This principle arose in the Federal Republic of Germany and, later, was incorporated by the jurisprudence of the Court of Justice of the European Community, to define a situation worthy of protection after the trust placed in the action of the Public Administration had been violated. The Spanish Supreme Court, in its ruling of February 1, 1990, considered that this principle must be applied, not only when any type of psychological conviction arises in the benefited individual, but rather when it is based on external signs produced by the Administration that are conclusive enough to reasonably induce them to trust in the legality of the administrative action, coupled with the fact that, given the weighing of interests at stake—individual interest and general interest—the revocation or rendering without effect of the act causes the patrimony of the beneficiary who reasonably trusted in said administrative situation to increase in losses that they are not obliged to bear derived from expenses or investments that can only be restituted with serious damage to their patrimony. Regarding the requirements of the principle of legitimate expectations, Spanish doctrine, following the jurisprudence of the Spanish Supreme Court, has established the following: There must be an act 1) from the administration sufficiently conclusive to provoke in the affected party one of the following three types of trust: a) the affected party's trust that the Public Administration acts correctly; b) the affected party's trust that the conduct they maintain in their relationship with the Public Administration is licit, given a potential error of prohibition; c) the affected party's trust that their expectations as an interested party are reasonable. 2) The Public Administration must provoke external signs (acts or facts) that, even without the need to be legally binding, guide the administered party towards a certain conduct that, if not for the appearance of legality created, they would not have performed. 3) An act of the Public Administration (e.g., a regulation that recognizes or constitutes an individualized legal situation in whose stability the administered party trusts. 4) The suitable cause to provoke the legitimate expectation of the affected party cannot be caused by mere negligence, tolerance, ignorance of the Public Administration, or the irrationality of what is sought by the administered party. 5) The administered party must fulfill the duties and obligations incumbent upon them. The breach of the principle of legitimate expectations undoubtedly causes several important legal effects: 1) It acts as a limit to the exercise of discretionary powers. 2) It operates as a guarantee of the principle of equality. 3) It causes the duty of the Public Administration to compensate the frustration of legitimate expectations and the injured subjective rights. The principle of legitimate expectations, together with that of good faith in legal-administrative relations, emanates from the principle of legal equality, that is, the certainty of relations with public powers, the administered party knowing what to expect from them, who must avoid objectively confusing situations and maintain legal situations even if they are not absolutely in conformity with the legal order. This principle is materialized, among other cases, with the theory of the intangibility of one's own declaratory acts of rights for the administered party, the limitation of detrimental acts, and non-retroactivity. It also finds application when a public administration issues and performs a series of acts and actions, which, although legally incorrect, generate a series of expectations in the administered party, believing they hold a legal situation in conformity with the legal order (...)' (see ruling No. 2010-010171 of 9:58 a.m. on June 11, 2010)” (the emphasis is from the original).

In another ruling, the Sala resolves an amparo appeal of a sixty-one-year-old person who had begun work at the Ministerio de Hacienda many years ago, who, due to modifications and new requirements for the cleaning service—through outsourcing—was excluded from continuing their work at the Ministerio de Hacienda, harming their individual and concrete situation, and their opportunity to acquire a pension. Furthermore, it is taken into consideration that the person is part of the disabled population and that, in their last employment contract, they were excluded by the introduction of the academic requirement of having completed primary school. This Sala resolved the case, as follows:

“Given the preceding panorama, it can be observed how the Public Administration generated a trust in the affected party that it was acting correctly, throughout that entire time worked, generating expectations for the protected party that are considered reasonable, since from 1996 to 2017 the protected party worked for all the cleaning service companies that were awarded contracts by the Ministerio de Hacienda, this becoming a common practice, where all the awarded companies hired him to keep him performing that cleaning work, with the same requirements for 30 years as was pointed out. While the change in the bidding document requirements is based on the minimum requirements for the use of products and activities inherent to the work, the protected party has demonstrated during his nearly thirty years that he is a suitable person and can handle the duties of the position well. Regarding the administration's behavior, it can be demonstrated that it has been representing stability and continuity in the protected party's employment relationship, since no situation of rejection or complaint to the awarded companies is accredited. Considering that the appellant is a person with special capacities and nearing older adulthood, it can be affirmed that the change in requirements for the position would cause an injury to his condition, due to the mentioned difficulty in finding employment, because of his disability and age, and additionally now that he lacks few contributions to be able to receive a pension. By virtue of the foregoing, this Sala considers that, in the particular case of the protected party, the administration contributed to constituting a situation of confidence and support, through the requirements demanded of the contracted companies, to perform his functions, in whose stability the protected party trusted, whereby it is appropriate to find for the appellant in the terms set forth in the por tanto of this ruling” (2018-02910 of 9:15 a.m. on February 23, 2018).

In another Ruling, No. 2023-014857 of 1:11 p.m. on June 21, 2023, this Sala agreed that it was necessary to sustain over time certain economic advantages obtained in a Collective Bargaining Agreement, given the omissive behavior of a public institution, and that it was not until the end of a labor process that an attempt was made to correct the economic situation, despite the existence of res judicata. In the resolution, it was indicated that:

“It must be reiterated that, in Ruling No. 2021-001157 of 12:42 p.m. on January 20, 2021, another similar matter was heard that addressed the reasonableness of a conventional norm, but as previously indicated, it was reported in a timely manner. Now, in this case before us, the omissive conduct consolidated a situation upon which it would now be improper for this Sala to rule, based on the doctrine of "estoppel." Through Ruling No. 1992-00746 at 11:20 a.m. on March 13, 1992, this Sala defines it as follows: “This position is known in the doctrine as administrative estoppel, which prevents the interested party from benefiting from their own fraud or errors or those of the administration and then asserting the nullity of the acts by which they benefited.” In this sense, according to the foregoing, protection is owed to the party that benefited from procedural good faith and in safeguarding the values of reliability of legal transactions, which in this case would be legal certainty and res judicata." As is clear from all the foregoing, the Chamber has indeed observed, through different legal institutions, the principle of legal certainty, especially its derivation, the principle of legitimate expectations (principio de la confianza legítima), as a mechanism for preserving the continued effects of norms and administrative acts as an extension of subjective rights that should have been protected, despite the regulatory repeal when the individual has placed their trust in public actions. We consider that the individual conduct of the Judicial Branch workers has conformed to the norms that raised legitimate expectations for them, which have been generated with a degree of reliability and good faith, in their pension regime by contributing and working loyally in the Judicial Branch. It is recognized, then, that when there are regulatory changes, "the State must respect the doctrine of its own acts, or - especially when it comes to new measures or an unforeseen decision - proceed in a reasonable manner, that is, with due anticipation communicate its new action, with sufficient transitional measures so that the subjects can accommodate their conduct and proportionate to the public interest at stake, without excluding other types of corrective or compensatory provisions for the usual and stable circumstances, which forge in the citizen founded hopes of maintaining a certain situation." Therefore, we believe it is evident that options must be preferred that are consistent with the protective principles of the human person in the field of human rights, due to the intrinsic need and respect for the dignity of persons, especially those who have been subject to a specific legal regime for the longest time, which had not varied for more than twenty or thirty years, and that, in that field, for reasons of equity, justice, and legal certainty, adequate corrective or compensatory transitional provisions should have been considered for their specific situations, and according to the intensity of the legitimate expectations they held.

Name8518.- Conclusion.

As a corollary to all the foregoing, we consider that the State, in the exercise and weighing of its decisions regarding retirement funds, must be doubly careful to safeguard: a) the economic balance of the fund, based on demographic aspects, population mortality, and the country's economic situation, among other objective elements; and also, b) the legitimate rights and interests of its beneficiaries. It is clear that pension regimes must be periodically subjected to the respective actuarial studies, and except for devastating economic collapses in an economy, it is then that measures could be taken that severely affect all persons who have not formally attained that right. But, when this is not the situation, the State and the funds that administer the pension regimes must seek solutions that do not anathematize workers at the threshold of the declaration of the right. We consider that in this matter, there are no simple expectations of a right, in consideration of a long-term relationship (often a lifetime) that includes the time served and the contributions made, but under the protection of the securities and guarantees of a public employment regime, which in this case corresponds to a Branch of the Republic; consequently, a form should be defined for workers that grades the rights of those who have legitimate expectations due to the years of service rendered and the contributions made to the corresponding pension and retirement fund.

The actuarial studies conducted by the IICE had contemplated a transitional period of two years (twenty-four months) as part of the analysis of the corrective measures for the pension fund. However, it is clear that said information had no consequence in the finally approved Transitional Provision VI of eighteen months, by failing to consider the integrality of the economic information and the rights in favor of those serving persons who would be left uncovered, and to whom, consequently, no protection was granted despite being quantified and having rights in the process of consolidation. Although it could be argued against our conclusion that there will always be persons excluded by any temporal setting that a transitional provision makes in this matter, it is clear to bring the criterion of the majority in Judgment No. 2021-11957 (previously cited), in which it stated that: "... the constitutional conformity of measures for cutting or modifying conditions in pension matters requires that prior to the determination and as an unavoidable part of its foundation, there must be technical support regarding the effects of the measures," an interpretation that is correct and is an obligation that would fall to the Legislative Assembly. The recognition of the analyzed benefit rights, for those who did not yet have consolidated rights in the actuarial studies—which, it is worth saying, are calculated for one hundred years—could have barely constituted a factor of actuarial distortion between the time the studies were completed and the approval of the reform, but it would not have derailed the solvency or insolvency calculations made, added to the other measures introduced, and which could have been corrected administratively over such a long period.

Hence, we consider that the setting of a period of eighteen months is unconstitutional by omission, because that state measure was more restrictive and out of phase with the actuarial study, which had weighed a period of twenty-four months, with which the degree and adequacy of its economic impact on the future benefits granted, versus the impact on rights in transition, had been measured.

We consider that the transitional period of two years that had been established was the way to establish protection for benefit rights in the process of consolidation, which was varied by the legislator (as illustrated by the intervention of Deputy Díaz Quintana). The President of the Legislative Assembly is emphatic in pointing out that the discretionary criterion of the legislator was used. In this sense, he invokes a prerogative that would imply a simple adaptation of parliamentary acts to the freedom of configuration. Therefore, if only this prerogative was used, and there was no other substantive criterion, contrasted with article 71.3 of Convention No. 102 of the International Labour Organization, it is clear that the product is illegitimate by falling short of the previously established technical standard, and given that the Chamber has held that the legislator's freedom of configuration is limited to compliance with the technical studies required by a specific provision, whether in environmental matters, or according to the subject matter in question, as is the international obligation that occupies us.

The substantive law, besides requiring a reasonable support, must be safeguarded with technical studies that must ensure financial balance, and also, in doing so, should protect benefits in transition to the extent possible. Furthermore, it must be recognized that there is a special relationship of subjection and a true long-term legal relationship with a basic pension plan for judicial officials, with economic implications such as those of workers who might be in eligible situations, who remained in their positions visualizing life plans and projects, with certain health conditions, and it is logical to think that it would be within their considerations, the best social security conditions and the right to retirement, all in a context from day one when work with the Judicial Branch begins.

For all these reasons, an irregular action claimed by the plaintiffs can be observed, which caused the means used and the ends not to be well crystallized, especially in the case of the worsening of rights.

The minority position should not remain at this point in an abstract decision, because evidently, it would be recognizing that there is indeed an impact on an international obligation contained in article 71.3 of Convention No. 102 of the International Labour Organization, as well as the economic, social, and cultural rights of the workers. Therefore, we conclude with an upholding judgment for the unconstitutional and unconventional omission of the norm, for the partial insufficiency in the coverage of the provision approved by the Legislative Assembly, insofar as it set eighteen months as a transitional period; and, for the insufficient coverage despite the actuarial study that allowed clearly establishing a longer period that could be technically supported, which reflected the needs of a reasonable financial balance of the fund, with that of granting the fundamental rights of expectant workers, respecting the legitimate expectations of judicial servants. In conclusion, the transitional norm is lacking —unconstitutionally— by having departed from the actuarial records that established twenty-four months of transitional period, whose actuarial support was duly established.

As a consequence of all the foregoing, in accordance with articles 89 and 91 of the Law of Constitutional Jurisdiction, we dimension this declaration to grade and dimension the retroactive effects of this declaration, to establish that judicial officials retain the rights to retirement and/or pension according to the text prior to the reform effected by Law No. 9544 of April 24, 2018, within the twenty-four months following its enactment. - Luis Fdo. Salazar Alvarado Ana María Picado Brenes Telf5585 ... See more Res: 2023032259 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at fifteen hours on the thirteenth of December of two thousand twenty-three.- Action of unconstitutionality brought by JAVIER CARVAJAL MOLINA, of legal age, attorney, identity card number 106960859, acting in substitution of KAROL MONGE MOLINA, as special judicial representative of ADALGISA DEL CARMEN GUILLÉN FLORES AND OTHERS, to have declared unconstitutional the TRANSITIONAL PROVISION VI OF THE LAW OF REFORM OF THE RETIREMENT AND PENSION REGIME OF THE JUDICIAL BRANCH, NO. 9544, considering it contrary to articles 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 and 190 of the Political Constitution, Conventions 102, 118, 128 and 157 of the International Labour Organization, as well as the democratic principles, solidarity, legal certainty, good faith, legitimate expectations (confianza legítima), transparency, relative intangibility of assets, non-confiscation, respect for acquired rights and consolidated legal situations. The Attorney General of the Republic, the President of the Legislative Assembly, and the President of the Supreme Court of Justice intervene.

Considering:

1.- By brief received in the Secretariat of the Chamber at 15:04 hours on December 31, 2019, the plaintiff challenges the TRANSITIONAL PROVISION VI OF THE LAW OF REFORM OF THE RETIREMENT AND PENSION REGIME OF THE JUDICIAL BRANCH, NO. 9544, considering it contrary to articles 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 and 190 of the Political Constitution, Conventions 102, 118, 128 and 157 of the International Labour Organization, as well as the democratic principles, solidarity, legal certainty, good faith, legitimate expectations (confianza legítima), transparency, relative intangibility of assets, non-confiscation, respect for acquired rights and consolidated legal situations. The norm is challenged insofar as it establishes that judicial servants who meet the requirements to acquire the right to a pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the enactment of that law, may retire under the protection of the provisions established in the aforementioned text. In the plaintiff's opinion, the Retirement and Pension Fund of the Judicial Branch is not only a retirement regime but also forms part of the employment contract. The fund is part of the institutional organization and functioning. Its existence responds to criteria of stability, independence, preparation, and suitability. It is an element that promotes the permanence of trained and qualified personnel in the institution, an intrinsic element of the employment contract and of the future expectation that each judicial servant and their families have, which constitutes an internal element of the organization of the Judicial Branch. He alleges that the fact of suffering the automatic application of such a severe transitional provision, never before applied to any group with consolidated legal situations in retirement matters, represents a disincentive to continue working in the institution, for valuable professionals, who, attending to the economic result of a future assessment, would prefer to pursue their professional career in another labor sphere. He assures that the plaintiffs contemplated a life project, given the working conditions that were offered to them, within which was the enjoyment of a dignified retirement through the Retirement and Pension Fund of the Judicial Branch, prior to the reasonable fulfillment of years of service and age, according to which they could retire with a dignified income, after having given a whole productive life in service to the community and the Judicial Branch. Therefore, he considers it unreasonable that, a few years from fulfilling the requirements established by the legislator, these are varied without a technical study that supports the appropriateness of the new measures to be applied. Under those terms, the Judicial Branch would have elderly officials, who remained working solely due to the drastic variation of the service time they would have to fulfill even when they no longer have the physical and intellectual capacities required by the judicial function. The judicial population would be at a crossroads, where although it is true that one has the desire to opt for that right and the motivation to retire to rest, they find themselves placed in a condition where, by the application of an unfounded and arbitrary transitional norm, the life project of those who placed their legitimate trust and good faith in the institution as an employer and in the expectation of having a dignified retirement through the Retirement and Pension Fund of the Judicial Branch, for which they have contributed for many years, giving a significant portion of their monthly salary, is truncated, which implies a variation to the conditions of the employment contract that 20 years or more ago were agreed upon between the plaintiffs and the Judicial Branch. They maintain that the Retirement and Pension Fund of the Judicial Branch should not be valued solely from an economic perspective, as it concerns fundamental —inalienable— rights associated with every worker, who during their working years contributed to a regime at a percentage higher than the general one, with the expectation of having a pension that allows them to meet their needs and enjoy, together with their environment, their retirement years calmly and with quality of life, so that going from being a short time from retirement to now having a decade or more of pending work applied to them, all because of the automatic application of an unconstitutional norm. He assures that membership in and eventual enjoyment of a retirement charged to the Retirement and Pension Fund of the Judicial Branch forms part of the employment contract and the working conditions that were established at the time for his represented parties, which have been maintained for twenty, twenty-five, and twenty-eight years of service, and it is contrary to constitutional law and human rights for them to receive such a drastic modification as that established by Transitional Provision VI of Law 9544, which is contrary to the right to work and retirement established in article 73 of the Political Constitution. He states that all legal reforms to the existing retirement regimes in Costa Rica, whether of the first pillar or substitute regimes, have had transitional norms that allow for gradualness in their application, respecting acquired rights and consolidated legal situations and allowing the reform's entry to the population in a way that does not violate their fundamental rights. However, Law 9544 arbitrarily establishes a period of eighteen months to enjoy a retirement under the conditions prior to the entry into force of said law, at which time practically only those who are close to fulfilling the retirement conditions would be entitled, which becomes extremely burdensome for the legal sphere of his represented parties. If one already has more than 20 years or more of judicial service, it becomes more difficult to make the decision to resign due to the gross extension of those periods and given the large amount of money these persons have invested in the Retirement Fund. He indicates that in other pension regimes, consolidated legal situations are being respected, and transfer to another, less confiscatory retirement regime than that of the Judicial Branch Fund is even permitted. Transitional Provision VI violates the principle of social security, transgresses the rights of his represented parties, as an almost non-existent period was granted for the conservation of consolidated legal situations. He affirms that although the Constitutional Chamber itself has indicated that the right to retirement is not unrestricted, as it can be subjected to certain limitations, it also indicated in its judgment number 5758-2018 that these variations were permitted as long as they are established by formal law, are reasonable, and do not affect its essential content. Furthermore, the International Labour Organization has pointed out the need to have technical criteria to make variations in pension regimes. The foregoing is not respected in the specific case, since Law number 9544 essentially changes all the retirement conditions on which his represented parties had an expectation for many years. The conditions of time served, salary, mandatory contribution payments change, the income that would be received by way of retirement changes substantially, and above all, the remaining service time changes despite the fact that the majority have more than 25 years of service to the institution. He considers that Transitional Provision VI needs to be adjusted in order to protect the fundamental rights of this judicial population, as the damage imposed on them is too great, going from a few months to more than ten years —in the majority of cases— to acquire a retirement right, which, additionally, is now ruinous, despite having contributed for so many years to the Retirement and Pension Fund of the Judicial Branch. He claims that the norm did not respect the enormous number of years that his represented parties have belonged to and contributed to the regime and whose benefit should have been safeguarded with a reasonable, fair transitional provision, supported by technical and objective criteria. He states that the right to retirement corresponds to a social security right that has been ratified not only by different international instruments but also by national legal norms, which, having certain conditions, cannot be varied to the detriment of the human rights of those who hold the right or the consolidated legal situation. He assures that according to the Protocol to the Convention on Economic and Social Rights of San Salvador, Law number 9707, article 1 and article 2 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Executive Decree number 38513-RE, within social rights is the right to work and, with it, the right to a retirement. This alludes to a fundamental right that belongs to the worker by the simple fact of being a person and having contributed to the corresponding legal regime for a determined period. From judgment No. 2794-2003, it can be extracted that the Costa Rican State has the obligation to respect the rights and consolidated legal situations of judicial officials and to ensure their progressive development. From this point of view, the challenged norm is unconstitutional.

2.- The plaintiff's standing comes from the amparo appeal processed in case file number 19-006391-0007-CO.

3.- By resolution at 11:55 hours on January 14, 2020, the proprietary magistrates at that time were enabled to resolve this action: Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fdo. Salazar Alvarado, Jorge Araya García, and also, the substitute magistrates at that time: substitute magistrate Marta Esquivel Rodríguez, by virtue of having been designated by drawing, and substitute magistrate José Paulino Hernández Gutiérrez for the hearing of this action of unconstitutionality.

4.- By resolution at 15:53 hours on February 11, 2020, by virtue of the request for recusal filed, magistrate Fernando Cruz Castro was separated from the hearing of this case, and the substitute magistrate who replaces him is declared enabled.

5.- By resolution no. 2020-3936 at 9:30 hours on February 26, 2020, the issuance of the judgment for this action was reserved until the one processed under case file no. 18-007819-0007-CO is resolved. Subsequently, by resolution no. 2021-11957 at 17:00 hours on May 25, 2021, the indicated action of unconstitutionality, case file no. 18-007819-0007-CO, was resolved, resolving as follows in the operative part:

"Admissibility:

Unanimously, the following are summarily dismissed:

• a)the grievances of procedural defects referring to the violation of the autonomy of the State banks and the autonomy of the Costa Rican Social Security Fund due to lack of standing.
• b)the analysis of the grievance regarding the declaration of unconstitutionality by connection of Law 9796 of December 5, 2019, for being the subject of analysis in the action of unconstitutionality 20-007715-0007-CO.

Regarding the action of unconstitutionality 19-1720-0007-CO, the claims that seek to protect the generality of servants, officials, pensioners, and retirees, in those matters in which the plaintiff cannot derive protection or amparo of their right because it is not a reasonable means to protect their right, are summarily dismissed due to lack of standing, in accordance with article 75 paragraph 1) of the Law of Constitutional Jurisdiction.

Legislative procedural defects:

By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the accumulated actions are denied regarding the alleged procedural defects. Magistrate Castillo Víquez provides additional reasons regarding the violation of the principle of publicity. Magistrates Hernández López and Garro Vargas add separate notes. Regarding the issue of the alleged defects of the session of the Special Commission of July 27, 2017, magistrate Garro Vargas provides different reasons.

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

Regarding the substantive grievances:

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

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez), the percentage of contributions and the special solidarity and redistributive contribution are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effects of this resolution, so that, starting from the month following the notification of the judgment, the competent authorities must make the corresponding adjustment in accordance with this judgment, in such a way that the tax burdens that weigh on the amount of retirements and pensions do not exceed 50% of the gross amount received by the retiree or pensioner. Magistrate Castillo Víquez provides different reasons. Magistrate Garro Vargas, for her own reasons, upholds this part of the action of unconstitutionality, ordering the partial annulment of the provisions in articles 236 and 236 bis of the Organic Law of the Judicial Branch; likewise, she warns that the unconstitutionality she declares affects the excesses of the special solidarity contribution with respect to that 5% and not the rest of the deductions applied by law to all pensioners and retirees of the Retirement and Pension Fund of the Judicial Branch. Magistrate Hernández Gutiérrez provides additional reasons. Magistrate Rueda Leal and Magistrate Hernández López dissent and deny this point, as they did in judgment no. 2020-19274 at 16:30 hours on October 7, 2020, since, according to the express text of article 67 of the ILO C102 of 1952 Convention on Social Security (minimum norm), the pension or retirement can be reduced as long as 40% of a reference salary is respected, which it is not evident has been automatically and evidently transgressed by the content of the challenged norms.

Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the paragraph contained in article 239 of the Organic Law of the Judicial Branch, reformed by the challenged Law number 9544, which reads: "Based on the result of the actuarial studies, and with authorization from the Superintendency of Pensions, the Administrative Board may modify the initial parameters established in this law regarding the eligibility requirements, the benefit profile, as well as the contributions of judicial servants and the retirements and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime," is declared unconstitutional and consequently annulled.

Third: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the phrase "(...) the present reform shall not be applied to their detriment", contained in Transitional Provision II of Law 9544 of April 24, 2018, is interpreted to mean that it refers exclusively to persons who have consolidated the right to retirement or the right to a pension.

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

The accumulated actions of unconstitutionality are denied, and consequently it is ordered:

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez), regarding the allegations concerning the omission to take into account gender differentiation in the retirement age between women and men, the actions are denied. Magistrates Salazar Alvarado and Hernández Gutiérrez deny this point of the action solely for reasons of form in the absence of technical studies. Magistrate Garro Vargas provides different reasons.

Magistrate Rueda Leal and Magistrate Hernández López dissent and partially uphold the accumulated actions due to the existence of an unconstitutional omission in Law 9544, as it fails to contemplate gender criteria for establishing a differentiated age so that women who contribute to the Judicial Branch Retirement and Pension Regime can retire or receive a pension with a shorter time of service.

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

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

Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the accumulated actions are dismissed on all other claimed grounds.

Magistrates Castillo Víquez and Rueda Leal and Magistrates Hernández López and Garro Vargas file separate opinions.

The declaration of unconstitutionalities, with the exception of what is indicated in the first point of the substantive grievances of this operative part—which takes effect as of the month following the notification of the judgment—has declaratory and retroactive effects to the date the law took effect, all without prejudice to good-faith acquired rights and consolidated legal situations. Notify the Legislative and Judicial Branches and the Administrative Board of the Judicial Branch Retirement and Pension Regime. Record this pronouncement in the Official Gazette La Gaceta and publish it in its entirety in the Judicial Bulletin. Notify.

6.- By a brief filed by the representative of the plaintiffs on June 12, 2021, they request that the Institute of Economic Sciences Research of the University of Costa Rica be commissioned to prepare a report to provide and analyze a technical actuarial opinion to resolve the request to extend Transitory Provision VI of the challenged law. The foregoing, in order to analyze and determine if it is possible for individuals with less than twenty-eight years, five months, and twenty-nine days of continuing to work in the Judicial Branch at the time the challenged transitory provision took effect to opt for retirement under the same conditions as those with twenty-eight years, six months, or more of working for the institution, that is, considering the sustainability of the Fund with a one-hundred-year projection and applying the same criteria used with individuals not affected by the entry into force of Law No. 9544. This report is necessary to know how many people not included in the transitory provision could benefit without the Pension Fund suffering any economic or actuarial impact. They consider it essential to have a technical opinion supporting a modification of the transitory provision of Law No. 9544, on the understanding that the Judicial Branch Pension Fund is a fund not charged to the budget and has proven to be a robust and self-sustainable fund since 1939, and that upholding the action and annulling Transitory Provision VI of Law No. 9544 to make way for a broader transitory provision even favors state finances, as more people would retire and stop receiving their salary charged to the State, instead receiving a retirement pension that the Fund can afford, since it is a public and notorious fact that the regime has improved substantially, financially, and actuarially in investment diversification. The former President of the Administrative Board of the Fund, Mr. Carlos Montero, during an appearance before the Full Court of the Judicial Branch, specifically in session No. 08-2021 of February 22, 2021, article XVIII, stated that the Fund was in a position to assume the retirements under the conditions prior to the reform of persons who, at the time Transitory Provision VI took effect, had 20 years or more of service in the Judicial Branch and that the Fund would have stability for between 70 and 90 years.

7.- By resolution of the Presidency of the Chamber, at 3:44 p.m. on February 14, 2022, upon the retirement of Magistrate Nancy Hernández, and given the drawing of lots carried out, Magistrate Jorge Isaac Solano Aguilar was declared qualified to hear this matter. Subsequently, by resolution of the Presidency of the Chamber, at 1:58 p.m. on March 22, 2022, upon the interim appointment of the substitute magistrate, Magistrate José Roberto Garita Navarro was declared qualified to hear this matter.

8.- By resolution of the Presidency of the Chamber, at 2:14 p.m. on March 22, 2022, given the request for recusal by Magistrate Anamari Garro Vargas, said magistrate was separated from hearing this matter. Substitute Magistrate Alejandro Delgado Faith was appointed, after drawings of lots and recusals presented.

9.- By Resolution No. 2022-008712 at 9:10 a.m. on April 20, 2022, this acción de inconstitucionalidad (constitutional challenge action) is admitted for processing against Transitory Provision VI of the Law Reforming the Judicial Branch Retirement and Pension Regime, No. 9544, for the alleged violation of Articles 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189, and 190 of the Political Constitution, ILO Conventions 102, 118, 128, and 157, and the principles of democracy, solidarity, legal certainty, good faith, legitimate expectations (confianza legítima), transparency, relative inviolability of assets, non-confiscation, and respect for acquired rights and consolidated legal situations, Articles 14 of the International Covenant on Civil and Political Rights and 9 of the International Covenant on Economic, Social and Cultural Rights. The action is dismissed on the merits regarding the violation of Articles 9, 33, and 167, the principles of publicity, equality, proportionality, reasonableness, and progressivity, as well as Article 208 bis of the Regulations of the Legislative Assembly and Article 26 of the American Convention on Human Rights.

10.- By resolution at 11:31 a.m. on July 22, 2022, pursuant to a prior resolution, this action is admitted for processing and a hearing is granted to the Attorney General of the Republic, the President of the Legislative Assembly, and the President of the Supreme Court of Justice.

11.- The edicts referred to in the second paragraph of Article 81 of the Constitutional Jurisdiction Law were published in issues 143, 144, and 145 of the Judicial Bulletin, dated August 1, 3, and 4, 2022.

12.- The Office of the Attorney General of the Republic submitted its report. It summarizes that: ADMISSIBILITY AND STANDING OF THE PLAINTIFFS: As derived from this case file, the standing of the plaintiffs comes from the amparo (constitutional protection appeal) processed in expediente No. 19-006391-0007-CO before this Chamber. This proceeding is pending resolution, where the unconstitutionality of the challenged transitory provision was alleged. Consequently, it is deemed that the action is admissible as it meets the requirements referred to in Articles 73 to 79 of the Constitutional Jurisdiction Law, as resolved by this Chamber in the resolution at eleven thirty-one a.m. on July twenty-second, two thousand twenty-two. REPORT ON THE CHALLENGED TRANSITORY PROVISION VI: The purpose of this acción de inconstitucionalidad is to determine if the challenged Transitory Provision VI is contrary to Articles 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189, and 190 of the Political Constitution, ILO Conventions 102, 118, 128, and 157, as well as the democratic principles, solidarity, legal certainty, good faith, legitimate expectations (confianza legítima), transparency, relative inviolability of assets, non-confiscation, and respect for acquired rights and consolidated legal situations. To begin our analysis, we must first indicate that, in accordance with Article 73 of the Political Constitution, the administration and governance of social insurance corresponds to the Costa Rican Social Security Fund. Despite this, in our context, various special pension regimes, substitutive of the general one, have been created by legislative means, whose existence has been repeatedly endorsed by this Constitutional Chamber, for example, in its judgment number 846-92 at 1:30 p.m. on March 27, 1992, in which it held that the existence of special retirement or pension regimes is not contrary to the Constitution, provided that the State's contribution as such is equal for all regimes, including those of private enterprise; and that the State's contribution as an employer, in the various regimes, is not greater than that imposed on other employers, including private employers, nor, in any case, less than that of all public servants or workers. Based on the foregoing, this Attorney General’s Office has indicated that the Legislative Assembly has not only the possibility but the duty to adopt the necessary measures to guarantee the sustainability of the various special pension regimes substitutive of the general one, by approving the necessary laws to achieve that objective. In this line, we have maintained that the administration of any social security regime requires flexibility to adequately direct the limited resources available and that this flexibility is affected when the legislator—or whoever has competence to make changes to the rules governing the matter—is inhibited from modifying both the initial conditions and ongoing benefits. Consequently, it is not possible to admit that the rules establishing the conditions of a specific regime be petrified, as this could even lead to the collapse of a country's social security system, which would harm not only persons who have already attained the status of pensioners but also those who have justified expectations of obtaining social security economic benefits in the future (when any of the protected contingencies arise). In this line, see opinion C-147-2003 of May 26, 2003, reiterated in C-181-2006 of May 15, 2006, in OJ-021-2007 of March 9, 2007, and in OJ-082-2015 of August 3, 2015. Now, having made the foregoing general considerations, it is important to highlight that Transitory Provision VI of Law No. 9544 is challenged insofar as it regulates that judicial officials who meet the requirements to acquire the right to a pension, as established in the text of Title IX of Law No. 7333 of May 5, 1993, within the eighteen months following the enactment of that law, may retire under the provisions indicated in said text. Thus, the plaintiffs consider that they are harmed by going from being close to retirement to now having a decade or more of work pending, all due to the automatic application of a rule they consider unconstitutional and unsupported by a technical criterion. On this point, we must indicate that Article 34 of the Political Constitution establishes that no law shall have retroactive effect to the detriment of any person or their acquired patrimonial rights or consolidated legal situations. In the case of a pension or retirement, the right to enjoy it is acquired when all the requirements provided in the applicable regulations are met, including requirements such as age, years of service, among others. Before these requirements are met, there exists only a mere expectation of a right, which is not even comparable to a consolidated legal situation. Despite this, this Constitutional Chamber has validated that, to protect the eventual beneficiary of a specific special retirement or pension regime from sudden changes that could aggravate the requirements to obtain recognition of the benefit, if the legislator deems it appropriate and decides to regulate it through transitory law, a period of 18 months is sufficient so that the modification of the specific conditions does not affect the administered party who meets the requirements within that period. Thus, by its judgment No. 846-92 at 1:30 p.m. on March 27, 1992, referring to the then bill to create the General Pension Regime Charged to the National Budget, this Chamber held—among other things—that: "—in its transitory articles— it recognizes the preservation of the retirement status of public servants who had met the requirements to enjoy the benefit, and also extends it to those who belong or have belonged to the excluded regimes to acquire it, within a period of eighteen months, which appears reasonably sufficient to guarantee any eventual good-faith rights." Accordingly, this Chamber considered that the right was guaranteed not only for persons who, upon the law taking effect, had met the requirements to retire or receive a pension under the legislation intended to be modified, but it was extended to those who were at a close age that would allow them to do so (18 months after the reform), provided that the factual assumptions established by those rules had been met, despite their repeal. (See also judgment No. 5476-93 at 6:03 p.m. on October 27, 1993, from this same Chamber). The foregoing proves that, in our context, only the "acquired right" to retirement is recognized at the constitutional level when all the required requirements have been met, while the misnamed "right of membership"—which is nothing more than a mere expectation—is reduced exclusively to those who, within a few months after a reform (at least 18 months), come to meet those requirements necessary to receive the specific benefit under the amended regulations. And this latter point is only the case when the legislator itself, through the express introduction of transitory provisions, has so provided. Beyond that, such a right of membership is a mere expectation that is extinguished with the reform or repeal introduced by the new regulations that are enacted. In this context, it must be noted that, although constitutional jurisprudence has recognized that, in the case of contributory pension regimes, contribution creates a “right of membership” (derecho de pertenencia), this does not make the rules of the system unmodifiable. On this specific aspect, it cannot be overlooked that, as this Chamber has stated, “(…) Membership in a specific pension or retirement regime is acquired from the moment contributions to said regime begin, but not the concrete right to retirement, which is acquired when the interested party meets all the prerequisites established by law. (...)” (Resolutions 2018-19030 of November 14, 2018, and 2021-011957 at 5:00 p.m. on May 25, 2021). In this case, Transitory Provision VI of Law No. 9544—even though it is optional for the legislator (so it could not exist without implying any constitutional violation)—allows us to affirm that the changes in the regime were not untimely, sudden, nor did they drastically vary the retirement conditions of the plaintiffs, so we do not share the reasons for unconstitutionality alleged in this action. Especially since, as the jurisprudence of this very Chamber has well defined, "(…) there is no right of the person to retire under specific conditions, as these can be varied when necessary to guarantee the existence of a specific pension and retirement regime, since if this were not so, conditions could be created that make the system financially unsustainable, which, finally, would lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the lack of funds preventing payment to the interested party of their retirement amount. (...)” (Resolution 08712-2022 at 9:10 a.m. on April 20, 2022). CONCLUSION: Based on the foregoing, we suggest that the Constitutional Chamber dismiss this action, since Transitory Provision VI of Law No. 9544 does not violate the conventional or constitutional provisions or the principles alleged in this Action. Nor does it violate any fundamental right of the plaintiffs.

13.- PATRICIA SOLANO CASTRO, in her capacity as Acting President of the Supreme Court of Justice and of the Judicial Branch, submits her report, in summary: Preliminary considerations.- The Administrative Board of the Judicial Branch Pension and Retirement Fund is a body of maximum deconcentration (desconcentración máxima) with instrumental legal personality, by virtue of which it is the competence of that board to also refer to the implications of the questioned Transitory Provision VI. Furthermore, the response of this Presidency is based on the position adopted by the Supreme Court of Justice regarding the impact of the then bill on the organization and functioning of the Judicial Branch and on the understanding that it impacts judicial employees, judicial retirees, and judicial pensioners in a serious, disproportionate, and unreasonable manner, and above all, those who exercise the judicature. On Law 9544 called “Reform of the Judicial Branch Retirement and Pension Regime, Contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its Reforms”: a). Background of consultations made by the Legislative Branch: 1). The Legislative Assembly, via official communication number CE208-BIS-02-2016 of September fourteenth, two thousand sixteen, consulted on the text of Bill No. 19.922, called “Law for the Comprehensive Reform of the Various Pension Regimes and Related Regulations”; the report was rendered in Full Court session number 29-16, held on September twenty-sixth, two thousand sixteen, article XXVIII, and was communicated to the Legislative Assembly via official communication number SP-288-16, from the General Secretariat of the Court, of September twenty-eighth, two thousand sixteen, with the express indication that the consulted Bill affects the organization and functioning of the Judicial Branch. 2). Subsequently, the Legislative Assembly, in official communication number AL-20035-OFI-0029-2017 of April seventeenth, two thousand seventeen, consulted on the substitute text of the cited Bill, approved in ordinary session number 15 of March twenty-ninth, two thousand seventeen. The report was acknowledged in Full Court session number 9-17, held on April twenty-fourth, two thousand seventeen, article XXIX, in which it was agreed to make it known to the Special Commission Expediente No. 19.922 of the Legislative Assembly, with the express indication that the Court issued a negative opinion and opposes the consulted bill, because it affects the organization and functioning of the Judicial Branch; the agreement was communicated to the Legislative Assembly via official communication from the General Secretariat of the Court, number SP-118-17 of April twenty-sixth, two thousand seventeen. 3). Finally, via official communication number AL-20035-OFI-0043-2017 of July thirty-first, two thousand seventeen, the Legislative Body sent a consultation on the Affirmative Majority Opinion of July twenty-seventh, two thousand seventeen, regarding the text of the cited bill. The report was acknowledged in Full Court session number 26-17, held on August seventh, two thousand seventeen, article XXX, and the agreement was communicated via official communication from the General Secretariat of the Supreme Court of Justice number SP-253-17 of August tenth, two thousand seventeen, and on that occasion, the express indication was also made to the Legislative Assembly that “The Court issues a negative opinion and opposes the consulted bill, because it affects the organization, structure, and functioning of the Judicial Branch.” b). Background regarding the application of Law No. 9544: The Superior Council of the Judicial Branch, in session number 33-18, held on April twenty-fourth, two thousand eighteen, article XXXVI, in view of the approval in the second debate of the project to Reform the Judicial Branch Retirement and Pension Regime by the Legislative Assembly, agreed to form a working group to determine the scope and consequences for the Judicial Branch Retirement and Pension Fund. On Tuesday, May twenty-second, two thousand eighteen, Law No. 9544 called “Reform of the Judicial Branch Retirement and Pension Regime, Contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its Reforms,” was published in the Official Gazette La Gaceta, issue 89, which took effect as of that publication. On the occasion of the entry into force of the cited Law, the Superior Council of the Judicial Branch, in session number 46-18, held on May twenty-second, two thousand eighteen, article VI, made the following agreement: “ARTICLE VI DOCUMENT NO. 5803-18 Because Law No. 9544 was published in La Gaceta No. 89 of today, May 22, 2018, which is a Reform of the Judicial Branch Retirement and Pension Regime, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its Reforms, in accordance with the attributions and responsibilities imposed on this Council by Transitory Provision I of said regulations, it is agreed: 1.) To request the Human Resources, Information Technology Directorates, and the Financial Accounting Department to coordinate what is necessary so that as of this date, deductions for the worker contribution (13%) and the commission for administrative expenses (5 per thousand) are applied to the salaries earned by judicial employees, as well as to the retirement pensions and other pensions paid by the Judicial Branch Retirement and Pension Fund. Likewise, the special, solidarity-based, and redistributive contribution shall be deducted from retired and pensioned persons, as dictated by article 236 bis of this law. Should any technical inconvenience arise for this, it must be reported to this Council, along with alternatives to resolve it. 2.) The Department of Press and Organizational Communication shall take note to disseminate this agreement. The Executive Directorate shall take note for appropriate purposes. This agreement is declared final.” - (Emphasis not in original). Also, in session number 52-18, held on June 6, 2018, article XXXI, official letters No. 2014-DTI-2018/2471-DE-2018/313-DGH-2018/295-FC-2018 of May 28, 2018, from the Director of Information Technology, the Executive Director, the Director of Human Resources, and the head of the Financial Accounting Department were acknowledged. The Department of Press and Communication of the Judicial Branch, via email on Thursday, July 7, 2018, at the request of the Human Resources Directorate, communicated this to all judicial employees, associations, and other entities. c). On the impact on Judicial Branch salaries, retirements, and pensions with the entry into force of Law No. 9544, published in La Gaceta, issue 89, of Tuesday, May 22, 2018: The Judicial Branch Retirement and Pension Fund is a constitutionally created fund designed to protect those who work or have worked for the Judicial Branch against the risks of disability, old age, and death. By legal imperative - Article 236 of the Organic Law of the Judicial Branch - according to the reform of the Judicial Branch Retirement and Pension Regime, by Law No. 9544, published in La Gaceta, issue 89, of Tuesday, May 22, 2018, the contributions allocated to pay for Judicial Branch retirements and pensions are distributed as follows: “Article 236- The Judicial Branch Retirement and Pension Fund shall have the following income: 1) A worker contribution of thirteen percent (13%) of the salaries earned by judicial officials, as well as of the retirement pensions and other pensions covered by the Fund, a percentage that will be withheld from the corresponding periodic payment. 2) An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the wages and salaries of its officials. 3) A contribution from the State that shall be a percentage on wages and salaries equal to that established for the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund (CCSS). 4) The returns and other benefits that the Fund produces or may eventually generate or obtain. In no case may the sum of the mandatory contribution and the special, solidarity-based, and redistributive contribution and, in general, the totality of the deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension. The resources obtained from the mandatory contribution established in this law shall enter the Judicial Branch Retirement and Pension Fund.” (Emphasis not in original). Also, Article 236 bis of the cited legal body establishes a special, solidarity-based, and redistributive contribution from pensioners and retirees according to the following table: “a) On the excess of the cap established in Article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess. b) On the excess of the previous margin and up to a further twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess of the previous margin and up to a further twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess of the previous margin and up to a further twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess of the previous margin, they shall contribute fifty-five percent (55%). In no case may the sum of the special, solidarity-based, and redistributive contribution and the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension. The resources obtained from the special, solidarity-based, and redistributive contribution established in this law shall enter the Judicial Branch Retirement and Pension Fund.” For its part, Article 239, regarding the creation of the Administrative Board of the cited Fund and its financing, states the following in relevant part: “It shall be financed with a commission for administrative expenses that shall arise from deducting five per thousand from the salaries earned by judicial officials, as well as from the retirement pensions and other pensions covered by the Fund. These resources shall pay the per diem allowances of the members of the Administrative Board, the salaries of its staff, and, in general, its administrative expenses. Idle resources shall be invested in accordance with the provisions of Article 237 of this law. (Emphasis not in original). Consequently, the Superior Council of the Judicial Branch, in session number 46-18, held on May twenty-second, two thousand eighteen, article VI, agreed that due to the entry into force of Law No. 9544, which reformed the Judicial Branch Retirement and Pension Regime, as of May 22, 2018, deductions would be applied for the worker contribution (13%) and the commission for administrative expenses (5 per thousand) on the salaries earned by judicial employees, as well as on the retirement pensions and other pensions paid by the Judicial Branch Retirement and Pension Fund, and similarly the special, solidarity-based, and redistributive contribution would be applied to retired and pensioned persons, as dictated by Article 236 bis.

However, as mentioned in the report submitted to the honorable Constitutional Chamber in relation to Unconstitutionality Action number 18-007819-0007-CO, where the constitutionality of the aforementioned norm was discussed, it is necessary to take into account that judicial employees, at the moment of availing themselves of their retirement, continue contributing to the Judicial Branch Retirement and Pension Fund (worker contribution of thirteen percent (13%) according to Article 236), unlike other retirement and pension regimes; therefore, their retirement amount would be diminished, and in addition to this, other deductions are added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Article 239), which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial employees, as well as of the retirements and pensions payable by the fund, which could become confiscatory (Article 40 of the Constitution) or violate the principle of non-retroactivity of the law (Article 34 of our Magna Carta) given the existence of acquired and consolidated patrimonial rights under a prior law. Thus, the report approved by the Full Court in session number 26-17, of August 7, 2017, article XXX, stated the following: "This Court reiterates it has been and will be respectful of the technical studies issued to seek the sustainability of the Fund; however, it cannot be ignored that we are in the presence of fundamental rights, and that is why the reform also merits a study adhering to actuarial technique but also with a human rights perspective. In this sense, it should be noted that Recommendation No. 43 of the ILO, 'Recommendation concerning Invalidity, Old-Age and Survivors' Benefits,' in point 13), subsections a) and b) states that: '(a) To guarantee workers a worry-free old age, the pension should cover essential needs. It is therefore advisable that the pension guaranteed to any pensioner who has completed a determined qualifying period be fixed with due regard to the cost of living. (b) In schemes with contributions proportional to salaries, insured persons who have had the contributions corresponding to the average duration of active working life credited to their account should obtain a pension that corresponds to their social situation during the period of professional activity. For this purpose, the pension guaranteed to insured persons who have accredited thirty effective years of contributions should not be less than half of the salary insured since entry into the insurance or during a determined period immediately preceding the settlement of the pension (Our emphasis). It is clear, then, that both Convention No. 102 and Recommendation No. 43 of the International Labour Organization are consistent in establishing that retirement and pension must satisfy the essential needs of persons in their old age, so the amount must be set considering the "cost of living and social situation during the period of professional activity." That is, the standard of living that the working person had during their active professional life must be respected. The need to make reforms to the Retirement and Pension Fund is not unknown, in order to seek sustainability, but these must be clothed in suitability and reasonableness, as indicated by the Constitutional Chamber in vote No. 2010-1625 of 9:30 a.m. on January 27, 2010, when declaring unconstitutional the cap on pensions established in Article 234 of the Organic Law of the Judicial Branch. The foregoing is consistent with what was stated by the Inter-American Commission on Human Rights when, analyzing the admissibility of the case 'Admissibility and Merits Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras v. Peru'[1], it outlined that the mentioned Article 26 is not exclusive of the possibility for a State to impose certain restrictions on the exercise of the rights incorporated in that norm, provided a joint analysis of the individual impact on the right (in this case, to retirement and pension) has been made in relation to the collective implications of the measure." In addition to the foregoing, Article 225 of the norm establishes a retirement cap that may not exceed ten times nor be less than one-third of the base salary of the lowest-paid position in the Judicial Branch, so the norm did not foresee that the imposed cap should be applied after the legal deductions and contributions that retired persons continue to make for the sustainability of the Judicial Branch retirement fund are made, including among them the contributions and the commission for administrative expenses. For this reason, regarding that article, it was concluded that the imposition of a retirement cap is not sufficient solely for attempting to place a limit on the highest retirements, but rather it must be suitable and proportional and must be due to a technical and legal explanation that justifies the reduction of the benefit; this must be sufficient in retirements arising from contributions that are three or four times greater than the rest of the contributing persons, otherwise the cap would again become unconstitutional, and there is a risk that such a requirement will again be found lacking. To avoid that, the report proposed the addition of the phrase "after legal deductions and income tax," in order to comply with conventional norms and applicable constitutional analysis, but that was omitted in Law 9544. Finally, in Transitory Provision VI, challenged here, a range of 18 months was set for judicial employees who meet the requirements to acquire retirement and can avail themselves of their retirement right under the provisions established in the reform. However, it is not recorded in agreements of the Full Court or the Superior Council that the Executive or Legislative Branches carried out the technical studies to define that range, which could be contradictory to what was indicated by the Constitutional Chamber in reiterated votes, among others, judgment number 2017-11714, issued at twelve o'clock on July twenty-six, two thousand seventeen, which indicated as a fundamental requirement to be able to make variations in retirement and pension regimes that these must have technical criteria on the impact of those legal modifications; otherwise, numeral 73 of our Political Constitution could be violated. On the other hand, it is necessary to mention that, as has been indicated in reiterated Amparo Appeals and Unconstitutionality Actions filed by judicial employees against Law number 9544, the institution's personnel have suffered the application of a very severe transitory provision never before applied to any group in retirement matters, which has caused a disincentive to continue working in the institution; with this, there has been a constant brain drain, as several resignations have been received from judicial employees who preferred to continue their careers in other fields, given the constant changes in both retirement and salary conditions due to the reforms applied in recent years. They have also complained that there are persons with twenty or more years of service who have contributed for so many years to the Judicial Branch Retirement and Pension Fund, who already had a future life project once they availed themselves of the retirement right. However, they suffered a drastic change due to the reform of the challenged Transitory Provision, which has affected them significantly, and they have even required medical intervention given the impact of this reform on their lives and the lives of their families. They consider that their right should have been safeguarded with a reasonable, fair transitory provision supported by technical and objective criteria. On this, there is no doubt that the institution has also suffered the consequences of this and other reforms that were approved in recent years, where the Judicial Branch has pronounced at all times that they do affect the organization and functioning, as recorded in reiterated agreements; therefore, it is necessary to review this and other norms, also from the position of the impact they have had on the attention of the competences constitutionally established for this Branch of the Republic, including not only the judiciary but also the auxiliary bodies of the administration of Justice such as the Public Prosecution Service (Fiscalía), the Judicial Investigation Department (OIJ), and the Public Defense, where competent and suitable persons are required so that the service is of quality and the constitutional mandate of prompt and complete justice can be fulfilled. d). Criteria of the Full Court regarding the consultations made by the Legislative Assembly: It is necessary to mention that the Full Court, in the cited sessions, issued a negative opinion on the consultations made by the Legislative Assembly, indicating that they did affect the functioning and organization of the Judicial Branch, as stated in the agreement of session number 26-17, held on August 7, 2017, article XXX. In addition to the foregoing, it is important to refer to the new Administrative Board of the Judicial Branch Retirement and Pension Fund, which is created starting from Article 239 of the recently approved reform, as a body of the Judicial Branch with complete functional, technical, and administrative independence, and assigns to it a series of functions that previously corresponded to the Superior Council of the Judicial Branch, as administrator of the Judicial Branch Retirement and Pension Fund, according to subsections 12, 13, 14, and 15 of Article 81 of the Organic Law of the Judicial Branch, repealed by Article 2 of Law 9544. With the foregoing, some functions of the Superior Council of the Judicial Branch are modified, and an internal unit of the institution is created, which, although it holds instrumental legal personality, maintains an organic relationship with the Judicial Branch, that is, it continues to be subordinated to it in all aspects not specific to the function that was entrusted to it in a deconcentrated manner, as well as the aspects derived from its instrumental legal personality. It is timely to highlight that Law 9544 presents many vaguenesses that must be supplied via regulation, some currently approved by the Full Court, and which must not exceed that Law, with the risk of departing from the will of the legislator. This problem was also pointed out during the processing of legislative file 19.922 that gave rise to Law 9544. The foregoing is due to the fact that there is a contradiction or clash of norms in relation to the regulation on the payment of per diems to the persons who make up the Administrative Board, where according to Article 239, paragraph 5, the commission for administrative expenses (5 x 1000) shall be used to pay the per diems of the members of the Administrative Board, the salaries of its personnel, and its administrative expenses; but Article 240, paragraph 4, simultaneously provides that "the members of the Administrative Board shall not earn any per diem." For its part, the Constitutional Chamber itself, in vote number 2008-5179, of eleven o'clock on April four, two thousand eight, regarding the impact on the functioning and organization of the Judicial Branch, made a broad analysis related to the aforementioned Article 167 of the Constitution. In addition, and of special importance, it is worth reiterating that the procedure for the approval of Law 9544 is that established in Article 167 of our Political Constitution, which refers to the mandatory consultation that the Legislative Assembly must make to the Supreme Court of Justice when the bill refers to the organization or functioning of the Judicial Branch, and additionally, to depart from its criterion, "the vote of two-thirds of the total membership of the Assembly shall be required"; with this, the legislator guaranteed the "democratic principle" whose function is that bills analyzed under these conditions have sufficient "opportunity for reflection and debate," as the Constitutional Chamber has indicated (vote 3671-2006). However, as resolved by Justices Luis Fernando Salazar Alvarado and Roberto Garita Navarro, in the dissenting vote to resolution number 2022-8712, of nine ten on April twenty, two thousand twenty-two, Law number 9544 presents the "essential procedural defect consisting of the lack of consultation with the Judicial Branch on the text approved by Parliament by absolute and not qualified majority, which affects it in its entirety (Article 167 of the Political Constitution), for affecting its organization, structure, functioning, and independence, for which reason they consider it unnecessary to proceed to analyze other procedural and substantive defects raised by the plaintiffs..."; so that, as the cited law presents the mentioned constitutional procedural defect, the entirety of the norm, including the challenged transitory provision, would be unconstitutional. Finally, the Judicial Branch Retirement and Pension Fund has the same characteristics as a social security fund (Articles 73 and 177 of the Constitution), and its nature has been analyzed by this Chamber in vote number 2014-20474, of fifteen forty-five on December eighteen, two thousand fourteen. It cannot be left aside that the creation and nature of the Judicial Branch Retirement and Pension Fund responds to criteria of stability, independence, preparation, and suitability, as established in Article 192 of the Political Constitution, with the aim of promoting the permanence of trained and qualified personnel in the institution, but the decrease in retirement benefits, the modifications regarding retirement age, the challenged Transitory Provision VI, and other reforms represent a disincentive for the entry of valuable professional persons, who, attending to the economic result of a future valuation, would prefer to pursue their professional career in another work environment. With this, the judicial, prosecutorial, Public Defense career, and the staff in general, who have more burdens on their salary – four times more than in other regimes – would receive a lesser benefit. On the other hand, the renewal of the staff who manage to remain is affected, and the Judicial Branch would have elderly officials who continued working solely because of the decrease their income would suffer in the event of retiring. By virtue of this, the judicial population is at a crossroads, where although it is true there is a desire to opt for that right and the motivation to retire to rest, they find themselves placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses or those acquired prior to the pension, and the natural ones for reasons inherent to age. However, this process also has its restrictions; from a legal standpoint, the Organic Law of the Judicial Branch prohibits retired persons from opting for another job, and socially it is a reality that after the age of forty, there are factual limitations regarding labor reintegration. The regulation of the Judicial Branch Retirement and Pension Fund should not be valued only from an economic perspective, because we are facing fundamental rights – inalienable – associated with every working person, who during their working years contributed a percentage higher than the general one to a regime with the expectation of having a pension at a given moment in their life that allows them to satisfy their needs and enjoy, together with their environment, their retirement years peacefully and with quality of life. The imposition of these legal modifications affects vulnerable population groups – such as older adults – harming the weakest party, precisely the one requiring greater protection from the State. The foregoing, moreover, implies a retroactive application of the law, an aspect prohibited by Article 34 of the Political Constitution. It cannot be ignored that it is at this stage where people generally require greater medical attention, special care, among others, considering that during their working life, some to a lesser or greater extent, according to the income received, contributed to the regime with the expectation of having the resources foreseen to face these processes; thus, many of these people had future life projects once they estimated the moment at which they could retire, which changed drastically with the approved reforms and the challenged transitory provision. A significant social impact is caused, as people in their retirement lose, unexpectedly, a significant part of their income, but they retain a status of pre-established expenses, which becomes a repercussion not only economic but also on their health, being contrary to the objective foreseen for a pension system, which is to have sufficient income during life after work, a scenario within which it is important to remember that on many occasions, the retired person continues to have under their care and maintenance other older adults or minors.

14.- RODRIGO ARIAS SANCHEZ, in his capacity as President of the Legislative Assembly for the 2022-2023 legislature, submits his report, in summary: Law 9544 of May 22, 2018, is the result of the processing of legislative file No. 19922, which was subject to a special legislative procedure, by provision of the Legislative Plenary, in application of current regulatory norms. This project was assigned to a Special Commission that issued its report; after its processing in First Debate, it was subject to a facultative consultation before the Constitutional Chamber; in Resolution No. 2018 -005758 of fifteen forty on April twelve, two thousand eighteen, that consultation was resolved. That resolution indicated that the bill did not present procedural or substantive defects. The bill began with number 19992 and was presented on April 5, 2016. In Ordinary Session No. 37 of June 20, 2016, of the Legislative Plenary, a motion via Article 208 bis of the Regulations of the Legislative Assembly was approved. That motion established the special procedure applied to this bill, and in the same motion, a Special Commission No. 20035 was created, which would be in charge of processing the project. The base text of the bill was consulted with the Judicial Branch via official letter CE208 BIS 02-20166 of September 14, 2016, and the Court responded via Official Letter No. SP-288-16 dated September 28, 2016 (see folios 284 to 316) of the file of Law 9544). In the Committee processing of the project, several procedural and substantive motions were approved. A substitute text motion was approved in ordinary session No. 15 of March 9, 2017; the approved substitute text was consulted with the Judicial Branch via official letter AL 20035.OFI.0029-2017 of April 17, 2017; the Supreme Court responded via official letter SP-118-17 of April 26, 2017 (see folios 1829 to 1851). In processing the project, the Special Commission consulted and granted a hearing to representatives of various institutions, such as the School of Economic Sciences of the University of Costa Rica, the Superintendency of Pensions, and the Judicial Branch. In the legislative initiative, a substitute text motion was approved in session No. 23 on July 27, 2017; subsequently, in that same session, the project was discussed on the merits and obtained approval, and it was then Issued as an Affirmative Majority Report in session No. 23 on July 27, 2017; the report was consulted with the Judicial Branch via official letter AL 20035-OFI-0043-2017 dated July 31, 2017, and the Supreme Court of Justice responded via official letter SP-253-17 of August 10, 2017. The project passed to the Plenary on August 1, 2017. In the Plenary, substantive motions were processed and sent to the reporting Committee; the Committee presented a report with several approved motions on September 20, 2017; subsequently, on two occasions, reiteration motions were processed, and some motions were approved: in the extraordinary session of the Legislative Plenary No. 13 of October 25, 2017, and in extraordinary session No. 14 of October 30, 2017. The project was approved in First Debate on October 30, 2017. The final wording text is dated November 1, 2017. The project was subject to a facultative consultation on November 1, 2017, and the Constitutional Chamber, by resolution 2018-00578 of April 12, 2018, indicated that it found no substantive or procedural defects. Likewise, the Chamber indicates that the project does not affect the organization and functioning of the Judicial Branch. Then, the project was approved in Second Debate on April 19, 2018, and became Law 9544 of May 22, 2018. As the Chamber itself indicated, in the processing of the cited law, a broad procedure was established for the presentation of motions, and although it effectively provided some particularities regarding the number of motions, defense time, and the moment at which they could be raised, the truth is that this did not necessarily lead to an injury to the principles and rights. Likewise, as the Constitutional Chamber itself indicated, it should be noted that from the study of the legislative file, both in the Committee and in the Plenary, the Deputies had the opportunity to broadly discuss different aspects relating to the legislative file. Publications of the project: The base text was published in the Official Gazette, La Gaceta 126, Supplement No. 110 on April 27, 2017; publication of the substitute text approved in session No. 15 of March 29, 2017. On August 4, 2017, the Publication of the Affirmative Majority Report was made; on August 7, 2017, the Publication of the Minority Report was made. On November 9, 2017, the final wording text approved in First Debate on November 1, 2017, was published. The Chamber found no violation of the principle of publicity in the processing of the file of Law 9544. As can be seen, the interlocutory resolution rejects on the merits the action in relation to the alleged violation of Articles 9, 33, and 167, the principles of publicity, equality, proportionality, and reasonableness and progressivity, as well as Article 208 bis of the Regulations of the Legislative Assembly and Article 26 of the American Convention on Human Rights. These allegations of unconstitutionality must indeed be rejected as they are a reiteration of identical actions that were rejected, based on Article 9 of the Law of Constitutional Jurisdiction, and especially since the Chamber finds no reasons to vary its criterion or reasons of public interest that justify reconsidering the question. The Chamber already resolved, by resolution No. 2018-005758 of fifteen forty on April twelve, two thousand eighteen, whether or not Law 9544 contradicts Articles 9, 33, and 167 of the Political Constitution and regarding Article 208 bis of the Regulations of the Legislative Assembly; it did so when resolving the facultative consultation, in prior control of bill No. 19922 that became Law 9544. Likewise, in subsequent constitutional control, when resolving several accumulated unconstitutionality actions referring to the alleged violation by Law 9544 of Articles 9, 33, and 167 of the Political Constitution, and regarding Article 208 bis of the Regulations of the Legislative Assembly, through a very extensive analysis in Resolution No. 2021011957 of seventeen zero minutes on May twenty-five, two thousand twenty-one, the Constitutional Chamber also rejects the allegations in relation to the violation of Articles 9, 33, and 167 of the Political Constitution, principles of publicity, equality, proportionality, and reasonableness and progressivity, and regarding Article 208 bis of the Regulations of the Legislative Assembly and Article 26 of the American Convention on Human Rights. The Chamber found no violation of principles of publicity, nor impact on the independence of the Judicial Branch, in the processing of the file of Law 9544. REGARDING THE QUESTIONS TO WHICH THE CHAMBER DID GRANT COURSE: The plaintiffs, in their brief, do not specify the reasons why they consider that Law 9544, and specifically its Transitory Provision VI, violate Articles 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189, and 190 of the Constitution. The Legislative Assembly considers the assertion made by the plaintiffs, that Law 9544 violates Articles 11, 18, and 27 of the Political Constitution, to be absolutely unfounded. Having analyzed the legislative file that gave rise to Law 9544, it was verified that in the process of its formation and in its content, the legislator respected at all times the provisions of the constitutional norms of Articles 11, 18, and 27. Similarly, it is reported that there is no indication that in the formulation of Law 9544 or in its content, the provisions of Article 28 of the Constitution have been or are affected. Regarding Article 34 of the Constitution, precisely an aspect in which the Law took special care and does not present effects to the detriment of any person. It respects acquired patrimonial rights or consolidated legal situations, aspects that were extensively analyzed in the resolutions cited where the Constitutional Chamber studied that law. The High Constitutional Court, after extensive analysis, explains the difference between acquired rights and consolidated legal situations, as well as the prohibition of laws having retroactive effects to the detriment of citizens, to conclude that it found no defect in Law 9544. Similarly, what was indicated by the plaintiffs is rejected regarding that Law 9544 and the Transitory Provision VI it provides affect any right to justice or affect the right to private property, or affect the family; therefore, what is alleged regarding Articles 40, 41, 45, 51, and 65 is rejected. Nor is it admissible what is alleged regarding that Articles 73 and 74 of the Constitution are affected; precisely the Constitutional Chamber, in the cited resolutions, made an extensive exposition on the topic of retirement and pension rights and indicated the competences and limits that the legislator has regarding legal modifications, indicating that reforms can only operate if they are reasonable, under technical criteria, and if the reforms precisely seek the realization of the regimes and respect the block of constitutionality. The Assembly, in the processing and formulation of this law, always respected the principles of reasonableness, rationality, and proportionality, and made its decisions based on broad discussion, with technical reports and participation of the involved sectors. Regarding that Law 9544 and its Transitory Provision VI violate Articles 152, 154, and 177, this is also not admissible; the Chamber, when resolving the facultative consultation and the unconstitutionality actions with the cited votes, indicated that the project does not affect the organization and functioning of the Judicial Branch. It is not admissible to consider that the provisions of the Law affect the autonomy and independence of the Judicial Branch. It is absolutely not admissible what the plaintiffs indicate regarding the law affecting Articles 188, 189, and 190 of the Constitution. On the alleged violation of the Conventions of the International Labour Organization, ILO. The plaintiffs indicate that Law 9544, specifically its Transitory Provision VI, contradicts several conventions of the International Labour Organization, ILO; some of these conventions are not formally incorporated into the Costa Rican legal system; however, it must be taken into account that the Constitutional Chamber, in its judgment 7498-00, has defined that there is an immediate and direct validity and applicability of international treaties on human rights in the country, without the need for prior approval. The Constitutional Chamber, in the mentioned resolutions, indicated that no violation of ILO Convention No. 102 regarding pension rights occurred. Similarly, Convention 118 is not affected, because equality of treatment is not affected in any way; any differentiation occurs on reasoned bases justified by technical studies; no type of discrimination occurs, so what is alleged regarding a violation of this convention is not admissible. Likewise, regarding Convention 157, the Chamber in the cited resolutions indicated that there is no impact on Convention 157 regarding the system of conservation of acquired rights. As indicated further on, the Constitutional Chamber, when resolving the facultative consultation, found no impact in Law 9544 on acquired rights and consolidated legal situations. Specifically, the issues reviewed by the Constitutional Chamber in the processing of this law through the facultative consultation concerned the changes in the requirements to obtain the right to a pension and the right to retirement, and the Chamber found no defect whatsoever.

What the plaintiffs assert regarding Law 9544 and its Transitory Provision VI having violated Article 9 of the International Covenant on Economic, Social and Cultural Rights is categorically rejected. As for what is indicated in Article 14 of the International Covenant on Civil and Political Rights, from a detailed reading of the content of that Article 14 compared with the processing or the content of Law 9945, no type of impact can be inferred, and therefore this allegation is rejected. What is indicated regarding the principles of transparency and legal certainty (seguridad jurídica), good faith (buena fe), legitimate expectations (confianza legítima), relative intangibility of assets (intangibilidad relativa del patrimonio), non-confiscation (no confiscatoriedad), and respect for acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas) being affected is not admissible. It is rejected that the principle of legal certainty (seguridad jurídica) is affected; neither in the processing of the law nor in the content of the law can it be indicated that any manifestation of this principle was affected. As this Chamber itself indicated, in the processing of Law 9544, a broad procedure for the presentation of motions was established which, although it effectively provided for some particularities regarding the number of motions, time for defense, and the moment at which they could be raised, the fact is that this did not necessarily lead to an injury to the principles and rights. Likewise, the alleged impact on the right to private property is rejected. With the enactment of Law 9544, there is no violation of the right to private property, nor is there an application of confiscatory or regressive measures. The right of older adults to be treated with special protection in the enjoyment, exercise, and exercise of their rights, particularly their right to social security in its manifestation of retirement or pension, is not affected. Nor is there a violation of the right to enjoy a dignified life and a dignified life project. It must be borne in mind that regarding the technical studies, the Constitutional Chamber dismissed the existence of any defect. There is no violation of legal certainty (seguridad jurídica) in its aspect of retroactivity of the law over consolidated legal situations (situaciones jurídicas consolidadas) and acquired patrimonial rights. In the legislative sphere and in accordance with constitutional jurisprudence, it has been recognized and interpreted as constitutionally valid that, in pension matters, there is no acquired right (derecho adquirido) or consolidated legal situations (situaciones jurídicas consolidadas) that can be preserved over time to the detriment of the other potential pensioners of the different regimes. This would violate non-discrimination and the Principle of Legality that must prevail in the different pension systems. Regarding the term consolidated legal situation (situación jurídica consolidada), it has been understood that, although no one has a "right to the immutability of the legal system," the constitutional precept means that, if the conditioning event has occurred, a legal reform that changes or eliminates the rule cannot have the effect of preventing the conditioned effect that was expected under the old rule from arising. PETITION In accordance with the report rendered, it is requested that the action of unconstitutionality be rejected.

15.- By resolution at 3:06 p.m. on September 27, 2022, a warning was given so that within a period of three days, and under penalty of rejecting their joinder requests in case of non-compliance. The petitioners: ALEJANDRO RECHNITZER MORA, ALFREDO JAVIER ARIAS CALDERON, CEFERINO MUÑOZ GONZALEZ, CRISIAM DIONISIA WONG VEGA, DORA MARTINA DEL MILAGRO TRABADO ALPIZAR, ELIAS APU VARGAS, ENRIQUE NAPOLEON ULATE CHACON, ENRIQUETA ROJAS AGUILAR, GINNETTE CAJINA SOLIS, HECTOR MANGLIO SANCHEZ UREÑA, HUBER ANTONIO SOLIS ARAYA, JOHN ALEXANDER QUESADA OLIVARES, JOSE LUIS DE JESUS BENAVIDES UMAÑA, KID DOUGLAS ROMERO LOPEZ, LEDY PATRICIA MIRANDA MATARRITA, LIGIA VANESSA VIQUEZ GOMEZ, MAIKOL ANTONIO SOTO UGALDE, MARIA FELICIA ZOCH BADILLA, MARLYN CASTRO ALVARADO, MARY CRUZ CUBILLO GARCIA, MAYRA CAMPOS ZUÑIGA, MIGUEL ANGEL MACHADO BARQUERO, OLGA MARTA MESEN ARROYO, REYSETH MARIA PERAZA MORALES, RITA TATIANA RODRIGUEZ ARAYA, ROBERTO MONTERO GARCIA, SHIRLEY JAUBERT SOLIS, TERESITA MARIA BOLAÑOS ROJAS, WILBER GERARDO MORENO MENDOZA, WILKKO ADRED RETANA ALVAREZ, YURY ZUÑIGA QUESADA, ALICIA MELENDEZ LEIVA, DIEGO ARMANDO SOLANO AZOFEIFA in his capacity as special judicial attorney-in-fact for ANA ISABEL OROZCO ÁLVAREZ, JOSÉ ARNOLDO GONZÁLEZ CASTRO in his capacity as special judicial attorney-in-fact for HELLEM JUTTNER RETANA and HELLEN NATALIA MIRANDA SIBAJA and, MARIA VICTORIA SALAS RUIZ in her capacity as General Secretary of the Sindicato de la Judicatura (SINDIJUD), must add and cancel the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the joinder brief in accordance with Article 4 of Law No. 3245 of December 3, 1963. The petitioners: ALEXANDRA DEL CARMEN SOLANO GAMBOA, ANA BEATRIZ LOPEZ ALPIZAR, CINDY PATRICIA VEGA MUÑOZ, DORA EMILIA DE LOS ANGELES CHACON SANCHEZ, ERIC RODOLFO MADRIZ IROLA, GISELLE ARGENTINA COREA LOPEZ, GUISELLE AMPARO ALVARADO SANCHEZ, INES MARIA RIVERA POVEDA, JENIFER MAGALI STEPHENSON STERLING, JOSE ALCIONI GERARDO VASQUEZ RETANA, KATTIA NAZIRA VARGAS ORELLANA, LEONARDO FABIO CHACON RIVERA LUIS RODRIGUEZ CRUZ, LUIS EDUARDO RODRIGUEZ QUIROS, MARIA DE LOS ANGELES MARIN BONILLA, RONALD ABARCA SOLANO, RONALD DE LOS ANGELES CRUZ ÁLVAREZ, SONIA LORENA RAMIREZ THORPE, VANESSA VILLALOBOS MONTERO, ANA BEATRIZ LOPEZ ALPIZAR, JUAN CARLOS DE JESUS SEBIANI SERRANO, judicial and extrajudicial representative of the ASOCIACIÓN NACIONAL DE PROFESIONALES DEL PODER JUDICIAL (ANPROJUD) and SANTIAGO GONZALEZ MENA, must comply with the requirement of authenticating the joinder brief by an Attorney, including adding and canceling the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the brief in which they request active joinder. In the event that any of the petitioners is an attorney, they must expressly so indicate with the respective membership number, in which case they must only provide the stamp of the aforementioned Colegio. Attorney Karla Patricia Jiménez Mora, membership number 20681 in her capacity as authenticating attorney, as well as the petitioners: ALEXANDRA MARBETH UMAÑA OBANDO, ALVARO GARITA BUSTOS, ANA CECILIA DE TRINIDAD MESEN, ANA CRISTINA CERDAS VALVERDE, ANA CRISTINA MORA VALVERDE, ANA HAZEL MURILLO ZELEDON, ANA YENORY BELLANERO ACEVEDO, ANABELLE MENDEZ QUESADA, ARLETTE BRENES RUIZ, ARMANDO ENRIQUE ELIZONDO ALMEIDA, ASTRID MAYELA DEL CARMEN BRENES CASTILLO, CARLOS ALBERTO GOMEZ VILLAGRA, CARLOS CARTÍN VILLALTA, CARLOS MANUEL GERARDO BRENES MONGE, CARMEN MARIA DE JESUS VILLALOBOS RODRIGUEZ, CINDY MARIA LEDEZMA GODINEZ, CRISTOBAL ALBERTO GUERRERO GONZALEZ, EDGAR ALONSO MADRIGAL RAMIREZ, EDUARDO ALONSO BRICEÑO PRENDAS, EFRAIN ANTONIO MOREIRA CAJINA, ERIC GIOVANNI JACAMO JIMENEZ, FANNY MARCELA SOTO DELGADO, FRANCISCO ALEJANDRO CURLING MARTINEZ, FRANZ ADOLFO PANIAGUA MEJIA, FREDDY GUILLERMO RAM BLANCO MORA, GABRIELA EUGENIA NAVARRO MATA, GABRIELA MARIA FERNANDEZ MONGE, GERALD YENKIS CAMPOS OBANDO, GERARDINA ELENA GUERRERO GONZALEZ, GERARDO ALBERTO MONTERO JIMENEZ, GIOVANNI HENRY CHACON VALVERDE, GISSELLE PATRICIA BONILLA CORDERO, HAYDIS MARIA CUBERO RAMIREZ, HECTOR OSVALDO ELIZONDO MARIN, HENNER REIVIN SALAZAR NAVARRO, HUGO JAVIER VARGAS QUIROS, JORGE ALBERTO BARQUERO UMAÑA, JORGE ARTURO TABASH FORBES, JOSE AIDER GUTIERREZ GOMEZ, JOSE ORLANDO FERNANDEZ CORDOBA, KATTIA YANORY MUÑOZ ZAMORA, LILLIANA PATRICIA AZOFEIFA AZOFEIFA, LUIS ALBERTO CAMPOS MOLINA, LUZ MARINA JIMENEZ VARELA, MAINOR ALBERTO MORALES MORERA, MARIA CECILIA CORDERO MARTINEZ, MARIA DE LOS ANGELES MIRANDA MATARRITA, MARIA DEL ROSARIO DOMINGUEZ ESTRADA, MARIA JOSE CASTRO RODRIGUEZ, MARIANELA PERALTA ELIZONDO, MARIANELLA BARQUERO UMAÑA, MARLENE DIAZ NAVAS, MARTIN JAVIER PEREZ RODRIGUEZ, MARVIN SOLORZANO SOLIS, MILANIA MOLINA VILLALOBOS, MONICA DEL SOCORRO MONGE OBANDO, PAOLA ANDREA DELGADO ROBLES, PEDRO JOSE FALLAS HIDALGO, RAYMOND LEONARDO TOSSO TORRES, ROCIO DEL CARMEN MOREIRA SANCHEZ, RODRIGO ESTEBAN VARGAS SALAZAR, ROGER REYES ESPINOZA, RONALD CASTILLO BARRIA, ROSAURA GARCIA AGUILAR, RUBEN ROBERTO DE JESUS MORALES BRENES, RUTH VILLALOBOS CHINCHILLA, SANDRA DE LOS ANGELES CAMPOS OBANDO, SILVIA LORENA DE LA TRINIDAD SEVILLA GUENDEL, SUSANA MARIA PORRAS CASCANTE, VANESSA EUGENIA CID GOMEZ, VERONICA MARINA CALDERON MORALES, VICTOR MANUEL ORTEGA JIMENEZ,VINICIO ALBERTO CHAVARRIA QUIROS, WILKER CARLOS SALAZAR ELIZONDO, YADELI MARIA JAEN CASTELLON, YAMILETH RAMIREZ RODRIGUEZ, JENNY GEORGINA FALLAS UREÑA, CARLOS EDUARDO DURAN MENA, DINO DE JESUS LEZCANO GOMEZ, GUILLERMO ANTONIO MEJIAS VILLALOBOS, HELLEN DE LOS ANGELES CARVAJAL CHAVES, MONICA MARCELA MORA VILCHEZ, CARLOS EUGENIO JESUS LEWIS MONTERO, must: justify and substantiate the legitimate interest (interés legítimo) they indicate they have in this matter, given that they omitted any indication in this regard. Likewise, Karla Patricia Jiménez Mora is warned, as authenticating attorney and responsible for providing the stamp corresponding to her authentication, to clarify and identify in a clear, orderly, and express manner to whom the 10 whole stamps of the Colegio de Abogados y Abogadas de Costa Rica correspond, with numbers 465330126, 465330134, 465330142, 465330150, 465330169, 465330177, 465330185, 465330193, 465330207, 465330215, which were provided repeatedly for two or more joinder briefs, and to add and cancel the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the other joinder briefs. It is warned that, in accordance with the cited law, one stamp must be paid for each authenticated signature. In addition to the foregoing, in the case of CARLOS EDUARDO DURAN MENA, GUILLERMO ANTONIO MEJIAS VILLALOBOS, HELLEN DE LOS ANGELES CARVAJAL CHAVES, MONICA MARCELA MORA VILCHEZ, they must provide a brief duly signed and authenticated, because they omitted to do so or because the digital signature could not be verified; and DINO DE JESUS LEZCANO GOMEZ and CARLOS EUGENIO JESUS LEWIS MONTERO must provide a complete brief, duly signed and authenticated with the respective stamp of the Colegio de Abogados y Abogadas de Costa Rica, given that the brief provided to the case file is incomplete and illegible. The petitioner: ADRIANA DE LA TRINIDAD OROCU CHAVARRIA, must prove her status as legal representative of the Asociación Costarricense de la Judicatura (ACOJUD), the type of power of attorney she holds, and the term for which it is in force, for which she must provide the current legal capacity certification of said association. Likewise, she must add and cancel the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the joinder brief, in accordance with Article 4 of Law No. 3245 of December 3, 1963. The petitioners: ADRIANA ISABEL CASTRO RIVERA, GERALD ADOLFO HUERTAS ORTEGA, GERARDO ALONSO SALAS MONTERO, JACQUELINE CHAVES MEJIAS 23-8-2022, JOSE ANGEL JIMENEZ TORRENTES, KARLA ALEXANDRA MADRIZ MARTINEZ, MARIA DE LA CRUZ ARROYO BRAVO, ROBERTO ANTONIO CERDAS QUIROS and JOSE RAMON DE LA TRINIDAD HIDALGO HIDALGO; must justify and substantiate the legitimate interest (interés legítimo) they indicate they have in this matter, given that they omitted any indication in this regard. Likewise, they must add and cancel the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the joinder brief, for each authenticated signature, in accordance with Article 4 of Law No. 3245 of December 3, 1963. The petitioner NIXIA ZAIDA MORA VARGAS must prove her status as legal representative of the Asociación de Jubilados y Pensionados del Poder Judicial (ASOJUPEN) and of the Asociación Nacional de Empleados Judiciales (ANEJUD), the type of power of attorney she holds, and the term for which it is in force, for which she must provide the respective current legal capacity certifications of those associations. Likewise, she must justify and substantiate the legitimate interest (interés legítimo) that ASOJUPEN has in this case. Finally, she must add and cancel the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the joinder brief. The petitioner: REBECA PATRICIA HIDALGO DUARTE, must prove her status as legal representative of the Asociación Nacional de Empleados Judiciales (ANEJUD), the type of power of attorney she holds, and the term for which it is in force, for which she must provide the respective current legal capacity certifications of those associations, or clarify if she appears personally, in which case she must justify what legitimate interest (interés legítimo) assists her. The petitioner: KAROL MONGE MOLINA, in her capacity as special judicial attorney-in-fact for ALLEN LUBANSKI MORA GAMBOA, CARLOTA EDUVIGES ARAUZ GARCIA, CATALINA ROCIO CONEJO VALVERDE, ETHEL ROSARIO CHINCHILLA SANCHEZ, GREDY JAVIER DE LA TRINIDAD HERRERA MORALES, INGRID ETHEL BUITRAGO SANCHEZ, JUAN CARLOS RIVERA RODRIGUEZ, LUIS FERNANDO CHAVES HERNANDEZ, LUIS GUILLERMO FALLAS GONZALEZ, LUIS RAMON DE LA TRINIDAD GAMBOA ROJAS, OSVALDO RODRIGUEZ FLORES, ROLANDO ARTURO OBANDO VARGAS, TONY ALEJANDRO ACUÑA PANIAGUA, YAMILETTE COTO GRANADOS, PAULO FERNANDO HERNANDEZ MURILLO and ALVARO GUERRERO MORA, must add and cancel the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the joinder brief, in accordance with Article 4 of Law No. 3245 of December 3, 1963. Likewise, she must provide the legal stamps for each of the powers of attorney she provided, that is, a fiscal stamp for one hundred twenty-five colones, an Archivo Nacional stamp for twenty colones, and the stamp of the Colegio de Abogados in the amount of two hundred seventy-five colones. In the case of the grantors CARLOTA EDUVIGES ARAUZ GARCIA, YAMILETTE COTO GRANADOS, and JUAN CARLOS RIVERA RODRIGUEZ, the power of attorney is not duly signed, given that the signatures could not be verified; the power of attorney for INGRID ETHEL BUITRAGO SANCHEZ is digitally signed only by Karol Monge, so the signature of the principal and the authenticating attorney is missing, so she must provide the powers of attorney duly signed and with the respective stamps. Finally, she must prove her status as legal representative of PAULO FERNANDO HERNANDEZ MURILLO and ALVARO GUERRERO MORA for this proceeding, the type of power of attorney she holds, and the term for which it is in force, for which she must provide the respective powers of attorney and certifications that so prove it, duly signed and with the legal stamps. The petitioner: RICHARD WILLIAM HOCKE GONZALEZ, must justify and substantiate the legitimate interest (interés legítimo) they indicate they have in this matter, given that he omitted any indication in this regard. Likewise, he must submit a duly signed brief and comply with the requirement of authenticating the joinder brief by an Attorney, including adding and canceling the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the brief in which they request active joinder. The petitioners: TATIANA RODRIGUEZ RODRÍGUEZ, ANGELA PATRICIA GUZMAN BALLESTERO, LUIS GUILLERMO DE JESUS OBANDO ARAYA, MARIA GABRIELA BUSTAMANTE SEGURA, MARIBEL DE LOS ANGELES BURGOS MATA, MARIO ALBERTO ALVARADO AVILA, must justify and substantiate the legitimate interest (interés legítimo) they indicate they have in this matter, given that they omitted any indication in this regard. The petitioners: ERICK JOSE ZAMORA CHAVES, LAURA PATRICIA MEZA PEÑA, LIZZETH GERARDINA CRUZ TORRES, MARIA MILENA VEGA CERVANTES, THELMO MAURICIO DE JESUS FLORES LEON, must justify and substantiate the legitimate interest (interés legítimo) they indicate they have in this matter, given that they omitted any indication in this regard. Likewise, they must comply with the requirement of authenticating the joinder brief by an Attorney, including adding and canceling the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the brief in which they request active joinder. The petitioner: JIMMY ALEXANDER ROBLES HERNANDEZ, must justify and substantiate the legitimate interest (interés legítimo) he indicates he has in this matter, given that he omitted any indication in this regard. Likewise, he must submit a duly signed brief, as the digital signature could not be verified due to an error, as well as add and cancel the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the brief in which they request active joinder. The petitioner: MARVIN ROBERTO LEON SALAZAR, must justify and substantiate the legitimate interest (interés legítimo) they indicate they have in this matter, given that they omitted any indication in this regard. Likewise, he must submit a duly signed brief and comply with the requirement of authenticating the joinder brief by an Attorney, including adding and canceling the stamp of the Colegio de Abogados y Abogadas de Costa Rica in the amount of two hundred seventy-five colones, corresponding to the authentication of the brief in which they request active joinder.

16.- According to a record dated October 11, 2022, the coadjuvants who did not file any brief or document to comply with the warning are indicated: VARGAS, HÉCTOR MANGLIO SÁNCHEZ UREÑA, JOSÉ LUIS DE JESÚS BENAVIDES UMAÑA, MARY CRUZ CUBILLO GARCÍA, OLGA MARTA MESÉN ARROYO, RITA TATIANA RODRÍGUEZ ARAYA, TERESITA MARÍA BOLAÑOS ROJAS, ALICIA MELÉNDEZ LEIVA, ANA BEATRIZ LÓPEZ ALPÍZAR, DORA EMILIA DE LOS ÁNGELES CHACÓN SÁNCHEZ, GISELLE ARGENTINA COREA LÓPEZ, INES MARÍA RIVERA POVEDA, JENIFER MAGALI STEPHENSON STERLING, JOSÉ ALCIONI GERARDO VÁSQUEZ RETANA, RONALD DE LOS ÁNGELES CRUZ ÁLVAREZ, SONIA LORENA RAMÍREZ THORPE, VANESSA VILLALOBOS MONTERO, SANTIAGO GONZÁLEZ MENA, ALVARO GARITA BUSTOS, ANA CRISTINA CERDAS VALVERDE, ANA CRISTINA MORA VALVERDE, ANABELLE MÉNDEZ QUESADA, ARMANDO ENRIQUE ELIZONDO ALMEIDA, ASTRID MAYELA DEL CARMEN BRENES CASTILLO, CARLOS CARTÍN VILLALTA, CARMEN MARÍA DE JESÚS VILLALOBOS RODRÍGUEZ, CINDY MARÍA LEDEZMA GODINEZ, CRISTÓBAL ALBERTO GUERRERO GONZÁLEZ, EFRAÍN ANTONIO MOREIRA CAJINA, ERIC GIOVANNI JACAMO JIMENEZ, FREDDY GUILLERMO RAM BLANCO MORA, GABRIELA EUGENIA NAVARRO MATA, GABRIELA MARÍA FERNÁNDEZ MONGE, GERARDO ALBERTO MONTERO JIMÉNEZ, GIOVANNI HENRY CHACÓN VALVERDE, JORGE ARTURO TABASH FORBES, JOSÉ ORLANDO FERNÁNDEZ CÓRDOBA, LILLIANA PATRICIA AZOFEIFA AZOFEIFA, LUIS ALBERTO CAMPOS MOLINA, MARÍA DEL ROSARIO DOMINGUEZ ESTRADA, MÓNICA DEL SOCORRO MONGE OBANDO, PEDRO JOSÉ FALLAS HIDALGO, ROCÍO DEL CARMEN MOREIRA SÁNCHEZ, RUBÉN ROBERTO DE JESÚS MORALES BRENES, VINICIO ALBERTO CHAVARRÍA QUIRÓS, YADELI MARÍA JAEN CASTELLÓN, ADRIANA DE LA TRINIDAD OROCÚ CHAVARRÍA, in her capacity as legal representative of the Asociación Costarricense de la Judicatura (ACOJUD), ADRIANA ISABEL CASTRO RIVERA, GERALD ADOLFO HUERTAS ORTEGA, GERARDO ALONSO SALAS MONTERO, NIXIA ZAIDA MORA VARGAS, in her capacity as legal representative of the Asociación de Jubilados y Pensionados del Poder Judicial (ASOJUPEN) and of the Asociación Nacional de Empleados Judiciales (ANEJUD), REBECA PATRICIA HIDALGO DUARTE, in her capacity as legal representative of the Asociación Nacional de Empleados Judiciales (ANEJUD). PAULO FERNANDO HERNÁNDEZ MURILLO, TATIANA RODRÍGUEZ RODRÍGUEZ MARIBEL DE LOS ÁNGELES BURGOS MATA.

17.- By resolution at 4:31 p.m. on November 02, 2022: 1) The following were admitted as coadjuvants: VANESSA MARÍA CASTRO HERRERA, ALEJANDRO RECHNITZER MORA, ALEXANDRA DEL CARMEN SOLANO GAMBOA, ALEXANDRA MARBETH UMAÑA OBANDO, ALFREDO JAVIER ARIAS CALDERÓN, ANA CECILIA DE TRINIDAD MESEN, ANA HAZEL MURILLO ZELEDON, DIEGO ARMANDO SOLANO AZOFEIFA attorney-in-fact for ANA ISABEL OROZCO ÁLVAREZ, ANA YENORY BELLANERO ACEVEDO, ANGELA PATRICIA GUZMAN BALLESTERO, ARLETTE BRENES RUIZ, CARLOS ALBERTO GÓMEZ VILLAGRA, CARLOS EDUARDO DURAN MENA, CARLOS MANUEL GERARDO BRENES MONGE, CEFERINO MUÑOZ GONZÁLEZ, CINDY PATRICIA VEGA MUÑOZ, CRISIAM DIONISIA WONG VEGA, DINO DE JESÚS LEZCANO GÓMEZ, EDGAR ALONSO MADRIGAL RAMÍREZ, EDUARDO ALONSO BRICEÑO PRENDAS, ENRIQUE NAPOLEÓN ULATE CHACÓN, ENRIQUETA ROJAS AGUILAR, ERIC RODOLFO MADRIZ IROLA, ERICK JOSÉ ZAMORA CHAVES, FANNY MARCELA SOTO DELGADO, FRANCISCO ALEJANDRO CURLING MARTÍNEZ, FRANZ ADOLFO PANIAGUA MEJÍA, GERALD YENKIS CAMPOS OBANDO, GERARDINA ELENA GUERRERO GONZÁLEZ, GINNETTE CAJINA SOLÍS, GISSELLE PATRICIA BONILLA CORDERO, GUILLERMO ANTONIO MEJÍAS VILLALOBOS, HAYDIS MARÍA CUBERO RAMÍREZ, HÉCTOR OSVALDO ELIZONDO MARIN, JOSÉ ARNOLDO GONZÁLEZ CASTRO special judicial attorney-in-fact for HELLEM JUTTNER RETANA and HELLEN NATALIA MIRANDA SIBAJA; HELLEN DE LOS ÁNGELES CARVAJAL CHAVES, HENNER GREIVIN SALAZAR NAVARRO, HUBER ANTONIO SOLÍS ARAYA, HUGO JAVIER VARGAS QUIRÓS, JENNY GEORGINA FALLAS UREÑA, JIMMY ALEXANDER ROBLES HERNÁNDEZ, JOHN ALEXANDER QUESADA OLIVARES, JORGE ALBERTO BARQUERO UMAÑA, JOSÉ AIDER GUTIÉRREZ GÓMEZ, JOSÉ RAMON DE LA TRINIDAD HIDALGO HIDALGO, JUAN CARLOS DE JESÚS SEBIANI SERRANO judicial and extrajudicial representative of the ASOCIACIÓN NACIONAL DE PROFESIONALES DEL PODER JUDICIAL (ANPROJUD); KAROL MONGE MOLINA IN HER CAPACITY AS SPECIAL JUDICIAL ATTORNEY-IN-FACT FOR ALLEN LUBANSKI MORA GAMBOA, ALVARO DEL CARMEN GUERRERO MORA, CARLOTA EDUVIGES ARAUZ GARCÍA, CATALINA ROCÍO CONEJO VALVERDE, ETHEL ROSARIO CHINCHILLA SÁNCHEZ, GREDY JAVIER DE LA TRINIDAD HERRERA MORALES, INGRID ETHEL BUITRAGO SÁNCHEZ, JUAN CARLOS RIVERA RODRÍGUEZ, LUIS FERNANDO CHAVES HERNÁNDEZ, LUIS GUILLERMO FALLAS GONZÁLEZ, LUIS RAMON DE LA TRINIDAD GAMBOA ROJAS, OSVALDO RODRÍGUEZ FLORES, ROLANDO ARTURO OBANDO VARGAS, TONY ALEJANDRO ACUÑA PANIAGUA, YAMILETTE COTO GRANADOS, KATTIA NAZIRA VARGAS ORELLANA, KATTIA YANORY MUÑOZ ZAMORA, KID DOUGLAS ROMERO LÓPEZ, LAURA PATRICIA MEZA PEÑA, LEDY PATRICIA MIRANDA MATARRITA, LEONARDO FABIO CHACÓN RIVERA, LIGIA VANESSA VÍQUEZ GÓMEZ, LIZZETH GERARDINA CRUZ TORRES, LUIS RODRÍGUEZ CRUZ, LUIS EDUARDO RODRÍGUEZ QUIRÓS, LUIS GUILLERMO DE JESÚS OBANDO ARAYA, MAIKOL ANTONIO SOTO UGALDE, MARÍA CECILIA CORDERO MARTÍNEZ, MARÍA DE LA CRUZ ARROYO BRAVO, MARÍA DE LOS ÁNGELES MARIN BONILLA, MARÍA DE LOS ÁNGELES MIRANDA MATARRITA, MARÍA FELICIA ZOCH BADILLA, MARÍA GABRIELA BUSTAMANTE SEGURA, MARÍA MILENA VEGA CERVANTES, MARÍA VICTORIA SALAS RUIZ GENERAL SECRETARY OF THE SINDICATO DE LA JUDICATURA (SINDIJUD); MARIANELA PERALTA ELIZONDO, MARIANELLA BARQUERO UMAÑA, MARIO ALBERTO ALVARADO ÁVILA, MARLENE DÍAZ NAVAS, MARLYN CASTRO ALVARADO, MARTIN JAVIER PÉREZ RODRÍGUEZ, MARVIN SOLÓRZANO SOLÍS, MARVIN ROBERTO LEÓN SALAZAR, MAYRA CAMPOS ZÚÑIGA, MIGUEL ÁNGEL MACHADO BARQUERO, MILANIA MOLINA VILLALOBOS, MÓNICA MARCELA MORA VILCHEZ, PAOLA ANDREA DELGADO ROBLES, REYSETH MARÍA PERAZA MORALES, ROBERTO ANTONIO CERDAS QUIRÓS, ROBERTO MONTERO GARCÍA, RODRIGO ESTEBAN VARGAS SALAZAR, RÓGER REYES ESPINOZA, RONALD ABARCA SOLANO, RONALD CASTILLO BARRIA, ROSAURA GARCÍA AGUILAR, SANDRA DE LOS ÁNGELES CAMPOS OBANDO, SHIRLEY JAUBERT SOLÍS, SILVIA LORENA DE LA TRINIDAD SEVILLA GUENDEL, SUSANA MARÍA PORRAS CASCANTE, THELMO MAURICIO DE JESÚS FLORES LEÓN, VANESSA EUGENIA CID GÓMEZ, VERÓNICA MARINA CALDERÓN MORALES, VÍCTOR MANUEL ORTEGA JIMÉNEZ, WILBER GERARDO MORENO MENDOZA, WILKER CARLOS SALAZAR ELIZONDO, WILKKO ADRED RETANA ÁLVAREZ, YAMILETH RAMÍREZ RODRÍGUEZ and YURY ZÚÑIGA QUESADA. 2) The joinder petitions filed by CARLOS EDUARDO ACUÑA JIMÉNEZ, ADRIANA TENORIO JARA MARCO VINICIO JIMÉNEZ BONILLA, and DONY EVARISTO PÉREZ GUEVARA, who appeared on August 25, August 30, September 27, and September 30, all of 2022, are rejected as being outside the fifteen-day period following the first publication of the notice, and therefore are untimely. 3) The hearings granted to the Procuradora General de la República, the President of the Asamblea Legislativa, and the President of the Corte Suprema de Justicia are considered to have been answered.

18.- By resolution at 12:14 p.m. on January 19, 2023, the Presidency of the Constitutional Chamber declared Magistrate Fernando Cruz Castro enabled to hear this matter and set aside the appointment of the substitute magistrate ordered by resolution at 3:33 p.m. on February 11, 2020.

19.- By resolution n°2023-2328 at 09:15 a.m. on February 01, 2023, it was ordered to consolidate with this action the one being processed under case file n°22-014613-0007-CO. In this regard, the arguments indicated therein are summarized as follows: the plaintiffs request that the unconstitutionality of Transitory Provision VI of Law No. 9544 of April 24, 2018, published in La Gaceta No. 89 of May 22, 2018, concerning the "REFORM OF THE RETIREMENT AND PENSION REGIME OF THE JUDICIAL BRANCH CONTAINED IN LAW 7333, ORGANIC LAW OF THE JUDICIAL BRANCH OF MAY 5, 1993 AND ITS REFORMS," be declared, insofar as it establishes: "TRANSITORY PROVISION VI- Judicial employees who meet the requirements to acquire the right to a pension as established in the text of Title IX of Law No. 7333, of May 5, 1993, within eighteen months following the enactment of the law, may retire under the provisions established in the aforementioned text." The plaintiffs affirm that the provision is challenged for establishing a single transitory period of 18 months, in an arbitrary and whimsical manner, excluding them, despite being a population that only lacked 5 years or less to be eligible for retirement, without having clear and objective technical studies that established the necessity, suitability, and proportionality of that exclusion to achieve the goals of the reform, which are the financial sustainability of the pension and retirement regime. Despite the fact that the legislature had other options and texts with staggered transitory norms were even included (pages 2443 and subsequent of the legislative file, as well as the affirmative majority opinion on pages 2453 to 2485), it finally opted for what was most burdensome to their rights, without there being rigorous technical studies that made it so required. They consider that the challenged Transitory Provision VI violates Articles 11, 18, 27, 28, 34, 40, 41, 45, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189, and 190 of the Political Constitution, as well as the constitutional principles of democracy, solidarity, legal certainty (seguridad jurídica), good faith (buena fe), legitimate expectations (confianza legítima), transparency, intangibility of assets (intangibilidad del patrimonio), non-confiscation (no confiscatoriedad), and respect for acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas). They also consider Conventions 102, 118, 128, and 157 of the International Labour Organization and Article 9 of the International Covenant on Economic, Social and Cultural Rights to be infringed. They assert that, as a starting point, it must be noted that the right to retirement has been recognized as a fundamental right of every person, deriving both from norms contained in the Political Constitution itself and from international human rights instruments. They cite vote No. 2018-19030 of this Chamber. They indicate that constitutional jurisprudence has recognized the fundamental right to retirement, derived from the content of Articles 50, 56, 73, and 74 of the Political Constitution, as well as from international law instruments applicable in Costa Rica, such as Articles 25, 28, 29, and 30 of the Social Security (Minimum Standards) Convention, No. 102, of the International Labour Organization (hereinafter ILO), 16 of the American Declaration of the Rights and Duties of Man, 22 and 25 of the Universal Declaration of Human Rights, 31 of the International American Charter of Social Guarantees, and 9 of the International Covenant on Economic, Social and Cultural Rights. Of course, like any fundamental right, the right to retirement is certainly subject to limitations or restrictions, which must be established by formal law, after a broad proportionality analysis of the measure (legitimacy, necessity, suitability, and proportionality in the strict sense) and provided that the essential content of the enjoyment and exercise of the right is not emptied. From this it follows that it cannot be affirmed that a person has the right to retire under certain specific conditions, given that it is clear that these can be varied, and in that sense, there is no right to the immutability of the legal system. However, legislative changes that restrict or limit more favorable assumptions or requirements for accessing a right require that an imperative need, a legitimate purpose, suitability, and proportionality exist. In this case, Law No. 9544 cited sought to provide a solution to a problem of financial sustainability of the Judicial Branch Retirement and Pension Fund, which was recognized in technical studies that the legislators had the opportunity to assess and quantify. With Law No.

Law No. 9544 cited (whose Transitory Provision VI is challenged in this action) introduced various changes to the conditions and requirements for accessing retirement by employees and officials of the Judicial Branch, the most relevant being the following: 1) the retirement age was increased from 62 years to 65 years; 2) the number of years of service was increased from 30 to 35; 3) the calculation of the retirement amount was modified from the best 24 final salaries to 82% of the average of the last 20 years of monthly salaries earned during working life, updated according to the consumer price index (IPC) defined by the National Institute of Statistics and Censuses (INEC); and 4) the conditions for early retirement were modified. They add that, before the entry into force of the reform made through Law No. 9544, it was possible to retire early, with a proportional amount, either upon completing 30 years of service, or upon reaching 60 years of age, in one way or another, that is, by fulfilling one requirement or the other. The plaintiffs indicate that they were close to being able to access the right to retirement, since they had worked 25 years or more, such that, upon completing 30 years of work, they would have been able to retire early, receiving a proportional retirement amount, depending on each one’s age. However, by arbitrarily excluding them from the aforementioned Transitory Provision VI, given that the 18 months contemplated do not stem from an objective, scientific, or thorough study, but rather were based solely on the fact that the Constitutional Chamber had so provided in several rulings, without that jurisprudence having been analyzed to verify whether the same factual scenario, or at least a similar one, existed as that which the Chamber took into account to set that range. While the jurisprudence of the Constitutional Chamber is binding, this is so when it is intended to be applied to identical or at least similar scenarios, but in this specific case, that is not so. Moreover, the legislature had inputs that allowed it to design a staggered transitory rule, which would cause less harm to those who were close to obtaining their right to retirement, and this was done in the Permanent Committee on Economic Affairs, where the Affirmative Majority Opinion was approved on July 27, 2017 (folios 2453 to 2485 of legislative file 19922). They consider that, by not including them in Transitory Provision VI of the challenged Law, without a technical-scientific, objective, clear, and quantifiable analysis, the constitutional principle of legitimate expectations is violated, given that there was an abrupt and significant change in the rules of the game, thus violating their good faith and the legal certainty that protected them within an employment contract with specific retirement conditions, for 25 years or more. They cite rulings of this Chamber numbers 2010-010171, 8000-16, 8689-19, 6198-20, and 2910-18, concerning the constitutional principle of legitimate expectations. They argue that from such rulings it can be inferred that, in accordance with the cited principle of legitimate expectations —proper to democratic regimes and indissolubly linked to the principles of legal certainty, equity, and good faith— the Legislative Branch can indeed modify the legal order, but in a case like this, where what it carries out is a reform to a pension and retirement system of a Branch of the State, in which rules are enacted that impose greater restrictions on access to the enjoyment of the right to retirement, it is required, in order not to harm said principle, that there exists a constitutionally legitimate purpose and that the changes be carefully staggered so as not to cause serious disruptions to the expectations that the beneficiaries of the Fund have, that is, that such changes should have been introduced gradually. In this sense, changes or reforms not only require a legitimate purpose, such as the financial sustainability of the Pension and Retirement Regime, but also that the principle of proportionality in the broad sense be respected; that is, that the rules be necessary, suitable, and proportional in the strict sense, so that the impacts are the minimum indispensable and absolutely necessary to safeguard the legitimate purpose. The principle of legitimate expectations protects the administered party from having their expectations in a given factual situation or legal regulation unexpectedly modified and from having more burdensome requirements than those already in place applied without reasonable justification. Legal certainty and the principle of legitimate expectations protect the certain expectation that a legal or material situation addressed in a certain way in the past will not be treated in an extremely unequal manner in another period; if changes are made for legitimate purposes, sufficient transitory measures must be established so that individuals can adjust their conduct or, in this case, their life plan, and these measures must be proportional to the public interest at stake, with this principle of legitimate expectations operating as a true limit on the legislature. In support of that principle and because there were no technical or scientific reasons that necessarily required an 18-month transitory provision, the Affirmative Majority Opinion of the Permanent Committee on Economic Affairs of July 27, 2017, drafted a transitory provision establishing a staggered application of the reform, making it possible for not only those workers who were 18 months away from retirement to qualify for the pension, but a whole range of workers with fewer years of service, proportionally to time and age (folios 2444 to 2451 of the legislative file), including those who —like them— had 25 years or more of working or contributing to the Judicial Branch Fund. However, that staggered application was eliminated, and only an 18-month transitory provision was left, which, in any case, had already been considered by the Chamber’s jurisprudence as a period contemplated as “acquired rights” to retirement and not merely an expectation. Regarding the principles of legal certainty, transparency, good faith, the democratic system, and solidarity, they point out that, in any democratic system of law, the principle of legal certainty is of great importance, implying “knowing what to expect” as a basic rule of coexistence and respect for the legal order. Legal certainty has been defined as the confidence that citizens have in the observance of and respect for situations derived from the application of valid and current norms, such that no disruptions to this system can occur that dilute their rights. It is one of the fundamental principles of any democratic constitutional order, due to the need that citizens always know what to expect in their relations with the State and with other private parties. Legal certainty rests on the concept of predictability, that is, that everyone knows in advance the legal consequences of their own behaviors. It is the balanced sum of the principles of certainty, legality, hierarchy, and normative publicity, non-retroactivity of unfavorable provisions, and prohibition of arbitrariness. For its part, the principle of solidarity, which governs social security in our country and specifically the Judicial Branch retirement system (founded on the provisions of Articles 1, 50, 73, and 74 of the Political Constitution), is also violated insofar as it is unreasonable to grant discriminatory and unequal treatment to a category of workers who have contributed a significant portion of their salary to sustain a Fund for 25 years or more, giving them the same treatment as a person who has, for example, one or five years of working in the institution. For those who have 25 years or more of contributing and working under a specific employment contract, the abrupt and severe changes that occurred logically cause them a greater impact, in aspects such as retirement age, years of work, and the calculation of the benefit to be received periodically, being in this way even harmful to their assets and even confiscatory, since their expectations were maintained over a longer period of time and, from one moment to the next, they saw their conditions worsened, among these, the decrease in the amount of retirement to be received and the extension of the term that, depending on the age at which they began working in the institution or the years recognized in other institutions, can be 8 years or more. The situation for those who are close to retirement is extremely burdensome because they have already developed a life project, from a family, economic, aspirational, or goals perspective, based on those legal rules, and, suddenly, abruptly and arbitrarily, they saw the conditions modified with severe impacts to their sphere of interests, patrimonial, physical, psychological, emotional, and even motivational. They add that ILO Convention 102 contemplates and develops the basis of the right to retirement by providing in Articles 25 and following that every member for which the convention is in force shall guarantee to protected persons the granting of old-age benefits. In the same sense, Convention 128, Articles 19 and following. The plaintiffs indicate that it is true that, in their case, they had not yet completed 30 years of service at the time of the law’s entry into force, nor did they have the required age to retire, but they did have an expectation of a right or one in the process of acquisition, having contributed more than 25 years to the regime, under a principle of good faith and legitimate expectations. Article 118 of the ILO Convention states in its Article 7 that member states must endeavor to participate in a system for the conservation of acquired rights and rights in the process of acquisition. In the same sense, Convention 157, Articles 6 and following. Therefore, the starting point is not only the protection of the retirement right that arises when the factual conditions established by the norms are met, but also the recognition and protection of rights in the process of acquisition, which, according to their proximity to the moment of attaining the right, require protection from the State, to the extent that it is guaranteed that no abrupt or unexpected changes are made, unless absolutely indispensable to achieve some purpose of imperative necessity. This derives from a harmonious, pro homine interpretation of the cited international norms. In the case presented, the challenged norm is contrary to the norms set forth, which constitute a parameter of constitutionality, as they are international human rights instruments; insofar as the questioned transitory provision was enacted without safeguarding the rights in the process of acquisition in a staggered and proportionate manner, specifically, of those who had 25 years or more of contributing to the Judicial Branch Pension and Retirement Regime. In that sense, alternatives existed that could have harmed less severely those who had contributed for so long, yet the legislature opted to include only an 18-month transitory period, without there being technical studies that made this necessary to meet the goals of the Fund's economic sustainability, a legislative decision that is clearly arbitrary. They assert that, upon contrasting the challenged norm with their situation as employees of the Judicial Branch, who, at the time of the Reform to the Retirement and Pension Regime, had worked 25 years or more for this Branch of the State, as well as with the content of the referred norms and principles, it is evident that this is a norm contrary to Constitutional Law. They point out that all the plaintiffs built a life project according to the working conditions they had within the institution and, specifically, to the rules for accessing and enjoying the right to retirement, which, under the provisions of the cited Law No. 7333, could be enjoyed when certain circumstances occurred, that is, upon completing 30 years of work or upon reaching 60 years of age (early retirement), with either scenario, even though their retirement amount would not be set at 100%, but rather at a proportional percentage that would allow them to retire and have a decent income ensuring their well-being and that of their family. These were the scenarios that generated for them an expectation of a right or, as the ILO and the Constitutional Court of Colombia have termed it, “rights in the process of acquisition” (T-631-2002 and T-235-2002). In accordance with the principle of legitimate expectations that must prevail in a Democratic State of Law, where legal certainty, transparency, and good faith are protected, those conditions could only be modified for reasons of public interest or constitutionally acceptable causes. Article 28 of the Political Constitution establishes that fundamental rights may be restricted only through a law, provided this is strictly necessary to protect public order, morality, or the rights of third parties. In this case, their life project was altered drastically, abruptly, and not progressively or in a staggered manner, even though they had placed their legitimate expectations and good faith in the employer (State) and in the norms governing the employment contract, and had contributed for 25 years or more with a significant portion of their salary to the capitalization Fund. They allege that, in this case, technical studies did exist —specifically, actuarial ones— that determined that the Judicial Branch Pension and Retirement Fund had sustainability problems. Hence, the Supreme Court of Justice signed an agreement with the Institute of Research in Economic Sciences of the University of Costa Rica for actuarial studies to be carried out. This was Agreement R-CONV-005-2016 between the Judicial Branch and the University of Costa Rica, in which several interdisciplinary teams participated, including one from the Judicial Branch. The Executive Director of the Judicial Branch (folio 1322 and following of volume 6 of legislative file 19922) stated that since the last actuarial study by Melinsky, the actuarial deficit situation had gone from 2.48 million to “a scenario of around 5 billion,” which said official attributes to the lack of decision-making. In the appearance of Dr. Max Soto Jiménez of the Institute of Legal Research of the University of Costa Rica (IICE) and part of his team, they pointed out to the Legislative Committee that they found an actuarial deficit 9.7 times the amount of the accumulated reserves and 36% present value of the entire liability of the regime. This same assertion is made in the IICE 3 report. In the appearance of Dr. José Antonio Peña of the IICE, he also referred to the seriousness of the Fund’s situation and the need to take measures (volume 10, folios 2274 and 2275). It is recorded in the reports presented by the Permanent Committee on Economic Affairs and presented in different hearings granted, that there were different alternatives for providing financial sustainability to the Fund, and several possible scenarios were studied. Furthermore, at folio 2443 of the legislative file, it can be seen how there was a draft of a staggered transitory norm, which was also included in the Committee’s Affirmative Majority Opinion of July 27, 2017; however, without reasonable justification, the legislature omitted to opt for any less burdensome, proportionate, or staggered technical proposal for the workers who were close to their retirement date, which would equally satisfy the interest of balancing the Pension and Retirement Fund as a legitimate objective of the reform; instead, it adopted the 18-month thesis, a period that has been used by the Chamber for different scenarios, in which no other possible alternatives existed or were claimed, nor were technical studies carried out in that regard. They allege that the Chamber, in those cases, had to construct that 18-month parameter because there was no other. Examples of this are the following judgments: In Judgment 846-92 of 1:30 p.m. on March 27, 1992, what the Chamber resolves is a facultative legislative consultation regarding the “Bill for the Creation of the General Pension Regime with Charge to the National Budget, Other Special Regimes, and Reform of Law Number 7092 of April 21, 1988, and its reforms, Income Tax Law.” In said ruling, the Chamber is specifically consulted about what happens if, in contravention of ILO Convention 102, it is deemed that workers who do not yet have the age or the contribution period possess an expectation of a right and not an acquired right, in the event that legislation is passed modifying those requirements for accessing retirement. To which the Chamber responds that this issue is of no interest because the bill under consultation recognizes the conservation of the retirement situation of public servants who had met the requirements to enjoy the benefit and “furthermore extends it to those belonging to or having belonged to excluded regimes to acquire it, within a period of eighteen months, which seems reasonably sufficient to guarantee any rights in good faith.” This is an assessment by the Chamber in which no specific aspects were evaluated, such as what variations occur, what the effects are, nor is any reference made to a proportionality analysis or technical study. Simply, the magistrates thought that, with the entry into force of said law, eighteen months were sufficient to guarantee it, with no other element of judgment than that it seemed prudent. In Judgment 6491-98 of 9:45 a.m. on September 10, 1998, an unconstitutionality action is resolved against Articles 224 and 225 of the Organic Law of the Judicial Branch and its Transitory Provision XIII, Law 7333 of May 5, 1993. A distinction is made between belonging to the regime and the right to retirement itself, which is when the legal requirements are met regardless of whether it has been claimed or not, adding that this right to retirement has been extended to eighteen months prior to fulfilling the requirements to acquire the right, since these are persons very close to the retirement date, and it indicates in relation to these persons that “they not only have an expectation, but adopt irreversible measures to prepare for their change of status.” In this regard, Judgment 1633-93 of 2:43 p.m. on April 13, 1993, is cited, where allusion is made to the fact that the Chamber has considered that when a repealing legal reform operates, the acquired rights of those who already met the requirements to retire must be respected, as well as those of those who would meet the requirements eighteen months after the repeal, which “the Chamber has accepted as reasonable in previous rulings.” Once again, this is not based on objective, quantifiable reasons stemming from proportionality aspects, but on a prudential period. In Judgment 3551-14 of 9:05 a.m. on March 14, 2014, the Chamber resolved an amparo appeal filed against the CCSS for a change in the conditions to access retirement. Said judgment in turn cited ruling 1633-93 of 2:33 p.m. on April 13, 1993 (which cites rulings 1147-90 and 2136-91) and which indicates that in cases of repeal of the regime, the rights of all persons who had retired, of those who met the requirements even if they had not formally requested it, must be preserved, and adds that furthermore “even eighteen months after the repeal of the law, a period that the Chamber has accepted as reasonable in previous rulings.” Consequently, applying that parameter, the amparo was granted on the grounds that it was not proven that, in the calculation of the pension projection in the name of the protected person, the prudential period of eighteen months prior to the reform had been taken into account, where acquired rights are already recognized because they are “persons very close to the retirement date.” In Judgment 12606-14 of 9:05 a.m. on August 1, 2014, an amparo appeal against the CCSS was also resolved, citing the same arguments to affirm that, in the event of regulatory changes in the requirements, the eighteen-month period must be considered to define acquired rights in pension matters. In Judgment 1214-15, an amparo appeal against the CCSS was heard, citing various precedents in which it is also affirmed that when there are changes in the conditions or requirements, or repeals, acquired rights must be respected, including persons who meet the requirements even eighteen months after the reform. In Judgment 2655-15 of 2:30 p.m. on February 24, 2015, an amparo against the CCSS is resolved that refers to the indicated jurisprudence and states that “it is recognized that such regimes are regulated by law, which can be modified or repealed by virtue of another law, and to claim that the conditions can never be modified would imply creating a limitation on each existing pension and retirement regime, which has constitutional rank regarding its creation in general, but not regarding the specifications in particular. (In this same sense, see pronouncements number 1341-93, of 10:30 a.m. on March 29, 1993, and 3063-95 of 3:30 p.m. on June 13, 1995). This concept has been subsequently broadened as a result of legislative decisions and those of this Court, in which a prudential period —eighteen months— prior to fulfilling the requirements to acquire the right was recognized, since it concerns a person very close to the retirement date, who not only has an expectation but adopts irreversible measures to prepare for their change of status.” It is resolved by adhering to what was resolved in the previously cited judgment. They allege that, consequently, the Chamber has established the 18-month period in scenarios where no other parameters are recorded, since, when a repeal or reform of a retirement regime occurs, workers who meet the requirements to retire must be protected, even if they have not requested it, and, additionally, those who are only 18 months from retiring, a period already considered an acquired right. In these jurisprudential scenarios, it is verified that no other parameter or technical studies exist that establish different results. In fact, the legislature in other reforms to pension laws has opted for longer periods when regulating the transitory provision or the validity of the repealed norm, as was well set forth in unconstitutionality action number 19-024589-0007-CO, where the following laws are cited: Law number 8536 approved on July 27, 2006, which adds to Article 2 of Law number 7531; Law number 7946, approved on November 18, 1999; Law number 8721, approved on March 18, 2009; Law number 8777, approved on October 7, 2009, among others. The 18 months constitute a minimum guaranteed jurisprudentially, where acquired rights are recognized, without this deriving from any constitutional, conventional, or legal norm or principle. It is a prudential period, like many others that constitutional jurisprudence has established in the absence of other elements. However, in this case, the legislators had access to actuarial studies that presented different scenarios in response to the modification of certain variables, and in several of the texts that the Committee discussed and approved in the Affirmative Majority Opinion of July 27, 2017, it included a staggered transitory text (folios 2453 to 2485 of the cited legislative file); despite this, the legislature, when modifying the pension and retirement regime, did not perform the proportionality test in the broad sense to examine what the appropriate, necessary, suitable, and proportional transitory period was, one that would harm rights or expectations as little as possible without endangering the Fund's sustainability, which is the legitimate purpose of the reform. In cases where a fundamental right is restricted or limited, the burden of proof does not lie with the person harmed by the restriction or limitation, but with the Administration, in this case, the legislating State. The evidentiary elements to demonstrate that the measures or legal reforms in this scenario are not disproportionate must be provided by the State. It must also be clear that the changes produced in the legislation were not slight, for their magnitude is of such relevance that at this moment, many persons who were just days away from being able to opt for retirement must now work, for example, 8 or 10 more years, depending on their age range and their date of entry into the institution or total years of service. These variations, which are no small matter, especially at ages where one no longer has the same energy, physical, mental, emotional state, where it is no longer possible to find similar sources, because one is no longer competitive in the labor market, and because at the time the worker had chosen to have a career within the Administration of Justice, nurtured by a legitimate expectation that the fundamental rules of the employment contract would not be abruptly modified to their detriment. Note that it was not demonstrated that the 18-month period was relevant for actuarial solvency purposes. The Superintendent of Pensions referred to 18 months only because he said the Constitutional Chamber had so resolved, without providing any element of judgment to establish that said jurisprudence was applicable to this reform (folio 1711 of the legislative file), and, similarly, the Attorney General's Office indicated that an 18-month transitory provision should be approved because the Constitutional Chamber had so resolved, without conducting any analysis of whether that jurisprudence was applicable or not to the factual scenario, or if it was different. Nor did it conduct a proportionality examination. It is observed that in one of the appearances of the technicians or experts who prepared the study, Dr. Max Jiménez, he only states: “logically, a transitory period longer than 18 months negatively affects the actuarial solvency of the fund” (folio 2945 of the legislative file), but without giving the reasons why, without conducting an in-depth study of the different possibilities for transitory periods, so as to cause a lesser harm to a certain population of workers with closer expectations and greater impact. Starting from volume 9, folio 2230, the legislative file contains different scenarios of adjustments that the researchers from the Institute for Research in Economic Sciences of the University of Costa Rica estimated could be made in different aspects of retirement to achieve the stability of the pension regime. Product 6 of the project “Actuarial Study of the Judicial Branch Retirement and Pension Fund” is presented as the final report: “Compilation and Final Report: Conclusions and Recommendations,” dated July 19, 2017. Said report consists of 8 chapters and includes information on the environment, the Judicial Branch Fund, the participating populations, legal aspects of the regime, etc. They refer to the current framework, the substitute text, the Corte Plena text, and the alternative frameworks presented by themselves. Regarding the first three (current framework, substitute text, and Corte Plena text), they analyzed that none pass an actuarial solvency test. At folio 2242, a comparative table is added establishing four possible frameworks or scenarios: the IICE 1, IICE 2, IICE 3, and IICE 4 frameworks. In each scenario, the promised requirements and benefits are analyzed. They insist that although the Chamber in various rulings has established the 18-month period as the period that must be respected when a retirement regime is repealed or modified, this has been so because in those scenarios no technical studies were conducted where other periods could be evaluated in relation to the impact on the regime’s sustainability. In contrast, in this case, the burden of proof rather fell on the legislature, in the sense of determining that those 18 months were necessary, unique, and indispensable, so that the public servants who had little time left to retire would be affected in the least burdensome way, that is, so that the impact for that stage of the population would be the least. Thus, it is not for them to prove that those 18 months are not reasonable or proportionate, but rather the opposite: the burden of proof to demonstrate that the reform and the approved transitory provision was the least harmful lies with the legislature, when enacting norms that restrict or curtail requirements or conditions for enjoying the right.

They reiterate that the changes produced by the reform are substantial changes, which mean that persons who were very close to retiring, as they were nearing 30 years of service, must now work up to 10 more years to reach the minimum age of 65, whereas under the repealed legislation they had the possibility of retiring, not with 100% of the amount, but with a proportional amount, depending on each person's age and the contributions remaining to be paid in order to retire with 100%. This is because the previous regulations established the possibility of early retirement, much more favorable than the current one. Certainly, the impact on workers with more than 25 years of working for the institution had to be taken into account not only within the actuarial study, which was not done, but the general impact on the workers should also have been examined, including physical and psychological wear and tear, among other factors, which were not fully considered. It was not proven through technical studies during the processing of legislative file 19922 that there was a danger or considerable impact on the Fund's finances if the population that had 25 years or more of working and contributing were allowed to retire under the previous rules. It is not even observed in the legislative file that an assessment was made of how many persons were in this situation. See that in the minutes of ordinary session number 20 of July 19, 2017 (folios 2265 to 2267 of the legislative file), Dr. Max Jiménez Soto, who was part of the team that prepared the actuarial studies of the Institute for Research in Economic Sciences of the University of Costa Rica, stated, in response to an intervention by Deputy Sandra Piszk, who pointed out that: "our objective is that this amendment enters into force, just as other pension reforms have entered into force at 18 months, as established by the Constitutional Chamber," the following: "Indeed, the first products, that of the current regime, that of the unions, and that of the Court, included transitional provisions that contemplated different groups that would retire in accordance with the current regime, or a gradualness that would apply them to the new regime. The estimates included that, in fact, the IICE, as Mr. Ronald explained, basically, that of the Court without the transitional provision for which, then, it more or less measures what the effect of the transitional provision was on solvency." They assert that he then makes an assessment without any support whatsoever and without providing concrete figures: "Logically, the more postponement, the more it affects solvency. The final frameworks recommended here, 3 and 4, contemplate exclusively what you have indicated regarding eighteen months." At folio 2267, the intervention of Dr. Ronald Cartín Carranza can be seen, who states: "Basically the frameworks, specifically from IICE, were passed on to try to model as closely as possible to eighteen months. In reality, to be honest, at the modeling level it is going to be two years. That is, for those with twenty-eight years of seniority and above, the mathematical model assumed that a transitional provision would be respected for them, that is, it was not measured in a completely precise manner but that, due to the very modeling of life probabilities, there are reasons for something, not for every half-year and there are reasonings. If one is a theoretician, one can dedicate half a year to that, but let's say, to answer you, it was estimated as closely as possible and the simulation assumed that all those with more than twenty-eight years of seniority, their right to maintain their pension under the current regime would indeed be respected. That is what you see there when it says 'participation with years of service, greater than or equal to twenty-eight.' At the level of passing it to regulation, what I would recommend—and we recommended—is to vote it at eighteen months, what the Constitutional Chamber ruled." As can be seen, despite being those who carried out the actuarial study, they did not delve into the technical reasons for the transitory rule, but rather practically followed a model that, according to them, must adjust to what was ordered by the Constitutional Chamber, in terms of it having to be 18 months; despite the fact that, in reality, the Chamber has not established said period as a rule, but has formulated it when no other parameter exists. In fact, the Commission, in the Affirmative Majority Opinion approved in the session of July 27, 2017 (folios 2443 to 2451), designed a staggered transitory rule, which better adjusted to the protection of rights in the process of acquisition or expectations of rights. The Constitutional Chamber itself has considered that, due to the proximity of time to retire, all workers cannot be given the same treatment; for this reason, it has set 18 months in cases where no other parameters or technical studies existed in that regard, including this category within the recognition of acquired rights. In judgment 5758-18 of the Constitutional Chamber, it was considered that, although the right to retirement is not unrestricted and therefore can be subject to certain limitations, such variations are permitted provided they are established by formal law, are reasonable, and do not affect its essential content. In repeated pronouncements, the Chamber has indicated that the principles of reasonableness and proportionality constitute a parameter of constitutionality for acts subject to public law (laws, regulations, and administrative acts in general). Following German doctrine, the Constitutional Chamber has considered that the basic components of proportionality are legitimacy, suitability, necessity, and proportionality in the strict sense. They cite judgments no. 3933-1998 of 09:50 hrs. of June 12, 1998, and 8858-98 of 16:33 hrs. of December 15, 1998. Consequently, when it comes to the restriction of certain fundamental rights, the principle of proportionality imposes the duty that said limitation must be justified by a sufficiently weighty reason to legitimize its contradiction with the general principle of equality. An act limiting rights is reasonable when it meets a triple condition: it must be necessary, suitable, and proportional. The necessity of a measure directly refers to the existence of a factual basis that makes it essential to protect some good or set of goods of the community—or of a specific group—through the adoption of a differentiating measure. That is, if said action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable and, therefore, constitutionally valid. Suitability, for its part, involves a judgment regarding whether the type of restriction adopted fulfills or not the purpose of satisfying the detected need. The suitability of the measure would indicate to us that other mechanisms may exist that better solve the existing need, being able, in some of these, to fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality in the strict sense refers us to a necessary comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, so that the limitation is not markedly greater in magnitude than the benefit intended to be obtained for the benefit of the community. Of the last two elements, it could be said that the first is based on a qualitative judgment, while the second starts from a quantitative comparison of the two objects analyzed. To carry out the examination of proportionality in the broad sense, or reasonableness, of the regressive measure of the right to retirement, it must first be established whether the reforms made to the Pension and Retirement Regime of the Judicial Branch had a legitimate purpose. Based on the actuarial studies, reports, and appearances contained in the legislative file, it is clear that the regime was indeed experiencing sustainability problems and, in that sense, the reform did have a legitimate purpose. With regard specifically to the term of the transitional provision, an aspect to which this action is limited, they consider that it is not proportional, necessary, or suitable, because the legislator had sufficient technical and scientific inputs to devise a staggered, reasonable transition that would not affect their retirement rights with such intensity, as this is a group of workers who, at the time of the reform, had 25 years or more of working and contributing to the regime under the prevailing rules. They request that this action be granted and that the challenged rule be partially annulled, insofar as it excludes judicial servants who, at the time the reform entered into force, had 60 months or less remaining to retire, and that they be allowed to access their right, under the conditions established by Law No. 7333 before the reform. For purposes of supporting their standing, the petitioners state that they file this action based on Article 75, first paragraph, of the Law of Constitutional Jurisdiction. They cite, as base matters, the amparo appeals processed in the following case files: 22-013966-0007-CO (María Ester Brenes Villalobos), 22-013963-0007-CO (Carmen Violeta Cerdas Cisneros), 22-013961-0007-CO (Álvaro Jesús Valverde Rojas), 22-013981-0007-CO (Blanca Luz Jiménez Chaves), 22-013982-0007-CO (Hermes de los Ángeles Zamora Atencio), 22-013980-0007-CO (Mario Alberto Sáenz Rojas), 22-013973-0007-CO (Luis Rodolfo Chaves Cordero), 22-013978-0007-CO (Paula Esmeralda Guido Howell), 22-013969-0007-CO (Robert Camacho Villalobos), 22-013977-0007-CO (Cristia María Carballo Solano), 22-013971-0007-CO (Rolando Alberto Brenes Mora), 22-013970-0007-CO (María Auxiliadora Madrigal León), 22-013960-0007-CO (German Brenes Montero) and 22-013959-0007-CO (Juan Carlos Cubillo Miranda). They indicate that in those matters, the unconstitutionality of the questioned rule was invoked as a reasonable means of protecting the right or interest they consider harmed.

20.- By means of a brief filed on February 22, 2023, the General Secretary of the Judiciary Union requests the oral hearing prescribed as mandatory for unconstitutionality actions under Article 10 of the Law of Constitutional Jurisdiction.

21.- By means of a resolution at 10:39 hours on May 26, 2023, the Instructing Magistrate requests the following evidence to better resolve: To the Director of the Institute for Research in Economic Sciences of the University of Costa Rica, an expansion of the “Actuarial Study of the Judicial Branch Retirement and Pension Fund” (Products IICE 1 through 6) carried out in 2016, in which a technical actuarial opinion is issued on the following: 1) In the best scenario to include the greatest number of judicial officials and in a scenario where the financial sustainability or actuarial solvency of the Judicial Branch Retirement and Pension Fund would also not be affected, what could have been the maximum term established in Transitory Provision VI of the LAW REFORMING THE JUDICIAL BRANCH RETIREMENT AND PENSION REGIME, NO. 9544. The foregoing, in a projection of how said Fund was at the time the law was issued and in a projection of how the Fund is today. 2) A projection on the financial sustainability of the Judicial Branch Retirement and Pension Fund if Transitory Provision VI had established the same scenario that was established in Transitory Provision II (for officials of the Supreme Electoral Tribunal), for all Judicial Branch officials. That is, a projection on the financial sustainability of the Judicial Branch Retirement and Pension Fund if the Transitory Provision established for judicial officials had indicated that all Judicial Branch officials who had contributed to the Judicial Branch Retirement and Pension Fund (belonging to the Fund), prior to the approval of Law No. 9544, could avail themselves of the pension regime under the conditions that operated before the approval of Law No. 9544. 3) Determine the number of Judicial Branch officials included in Transitory Provision VI. Determine the number of persons who were excluded from said Transitory Provision and the time remaining for them to enjoy the pension right. That is, the number of all judicial officials who, at the time Law No. 9544 was approved, had already begun contributing to the Judicial Branch Pension Regime and the years remaining for them to begin enjoying the pension right. 4) Specifically, for the year 2018 at the time Law No. 9544 was approved, identify how many persons who were not included in Transitory Provision VI of said law could have been included, without the Judicial Branch Retirement and Pension Fund becoming underfunded or affected in its financial sustainability or actuarial solvency. 5) Considering the sustainability of the Fund with a one-hundred-year projection and applying the same criteria used with persons who were not affected by the entry into force of Law No. 9544, indicate: if persons who have less than twenty-eight years, five months, and twenty-nine days of continuing to work in the Judicial Branch, at the time the challenged transitory provision entered into force, may opt for retirement under the same conditions as those who have twenty-eight years, six months, and more of working for the institution. 6) An estimate, for the year 2018 at the time Law No. 9544 was approved and for the present, on the financial sustainability or actuarial solvency of the Judicial Branch Retirement and Pension Fund, if a Transitory Provision were included for: a. Judicial officials with 25 years or more of contributing, for judicial officials with 20 years or more of contributing, and for officials with 15 years or more of contributing; b. Judicial officials with a contribution to the pension regime of 80% or more, for judicial officials with a contribution of 70% or more, for judicial officials with a contribution of 60% or more, and for judicial officials with a contribution of 50% or more.

22.- By means of a resolution at 10:45 hours on May 26, 2023, the Instructing Magistrate requests the following evidence to better resolve: A) In view of the report of the President of the Legislative Assembly where he indicates: “precisely the Constitutional Chamber in the cited resolutions made an extensive exposition on the topic of retirement and pension rights, and indicated the powers and limits that the legislator has regarding legal modifications, indicating that reforms can only operate if they are reasonable, under technical criteria, and if the reforms precisely seek the realization of the regimes and respecting the block of constitutionality. The Assembly, in the processing and formulation of this law, always respected the principles of reasonableness, rationality, proportionality, and made its decisions on the basis of a broad discussion, with technical reports and participation of the involved sectors.” He is requested: To indicate and provide to this Chamber, specifically, the technical criterion on which the Legislative Assembly based itself to establish the 18-month period indicated in Transitory Provision VI of the LAW REFORMING THE JUDICIAL BRANCH RETIREMENT AND PENSION REGIME, NO. 9544, where the reasonableness of that period is demonstrated. B) In view of the fact that the petitioners mention the statement of the President of the Administrative Board of the Judicial Branch Retirement and Pension Fund, in the Full Court, session No. 08-2021, of February 22, 2021, Article XVIII, who stated that the Fund was in a position to assume retirements under the conditions prior to the reform, for persons who at the time Transitory Provision VI entered into force had 20 years or more of service in the Judicial Branch, the President of the Administrative Board of the Judicial Branch Retirement and Pension Fund is requested: 1) To address the allegations of this action, stating what he considers in that regard. 2) To indicate if it is correct that, at present, the Fund is capable, without endangering its financial solvency, of assuming the retirements under the conditions prior to the reform, of persons who at the time Transitory Provision VI entered into force had 20 years or more of service in the Judicial Branch. C) In view of the statement of the Presidency of the Judicial Branch, where it is indicated that: “… the institution's personnel have suffered the application of a very severe transitory provision never before applied to any group in retirement matters, which has caused a disincentive to continue working in the institution, resulting in a constant brain drain since several resignations have been received from judicial servants who preferred to continue their careers in other fields, given the constant changes in both retirement and salary conditions, due to the reforms that have been applied in recent years.” And furthermore where it indicates: “suffered a drastic change due to the reform of the challenged Transitory Provision, which has affected them significantly and they have even required medical intervention given the impact of this reform on their lives and on the lives of their family members.” He is requested: 1) To present updated data to date on the number of resignations that have been submitted, after the approval of the law challenged in this action, No. 9544, and if it has been possible to determine that said resignations are substantially higher than curves from previous years, and the reasons on which such resignations have been based. 2) To indicate the impact that such resignations have had on the Institution, in terms of the cost of having to undertake new hirings and training of new personnel. 3) To present updated data to date on the number of judicial officials who have had to consult the company doctor in the different specialties, due to health effects stemming from the stress and anxiety caused by the changes in the rules related to the pension regime.

23.- Regarding the foregoing evidence requested, JUAN ANDRES ROBALINO HERRERA, in his capacity as Director of the Institute for Research in Economic Sciences of the University of Costa Rica, reports in summary that: It is not materially feasible to issue a technically supported opinion in a rigorous manner that responds to the six points mentioned because he does not have the human and financial resources to carry out said task, which would require effort and financial resources of a magnitude similar to that of the original study.

24.- Regarding the foregoing evidence requested, JUAN CARLOS SEGURA SOLIS, in his capacity as President of the Administrative Board of the Judicial Branch Retirement and Pension Fund, reports in summary: 1) The allegations motivating the unconstitutionality action before us are duly founded and in accordance with the law. It should be noted that Article 167 of the Political Constitution was violated, regarding the procedure for the approval of the bill that gave rise to Law No. 9544. Thus, the petitioners are correct in pointing out the existence of nullity defects in the bill that gave rise to Law No. 9544 and, therefore, Transitory Provision VI would likewise be unconstitutional, based on Article 167 of the Political Constitution, in relation to Conventions 102, 118, 128, and 157 of the International Labour Organization, in accordance with Article 26 of the American Convention on Human Rights. What is established by the International Labour Organization in the Social Security (Minimum Standards) Convention, 1952 (No. 102), Article 29, subsection a), which establishes the right of belonging of the petitioners to belong to the retirement regime, was enshrined from the moment they entered into a statutory relationship with the Judicial Branch, in which their own principles are established that from the outset must be respected in accordance with the aforementioned convention. Thus, Transitory Provision VI violates the acquired rights and consolidated situations of the plaintiffs, without there being a legal basis for such effect. The 18 months of Transitory Provision VI is a period created by the legislator in a whimsical manner, without a reasonable criterion having been made known to the Constitutional Chamber or the general public, where the technical or actuarial arguments of sufficient weight to adopt the indicated period were assessed. 2) The work report of former president Carlos Montero for the 2020 period was based on an open population scenario (actuarial assessment where affiliates continue to be received), whereas now the regulations indicate that it must be with a closed population (actuarial assessment where no more affiliates are received). It should be recalled that the Judicial Branch retirement and pension regime was historically assessed under the open population methodology until the 2018 reform. The closed population methodology is much stricter when estimating its results. The IVM regime administered by the CCSS continues to date to be assessed solely by the open population methodology, while the Judicial Branch Retirement and Pension Fund regime is not permitted to do so under current regulations. JUNAFO, on various occasions, has defended the position that the basic regimes of the first pillar of the Costa Rican National Pension System should be measured under a single methodology, the scenario with an open population presumably being the one that best adapts to the inherent characteristics of any basic regime. Under the OPEN population methodology, the 2020 results yielded an actuarial surplus situation of 0.20 billion colones and a solvency level of 105.53%, which allowed some margin for action. In reference to the financial solvency of the Fund today, in accordance with the foregoing and based on the regulations in force, which oblige us to consider the closed population scenario, any extension of the transitory provision promoted by this unconstitutionality action would cause a variation in the actuarial deficit of the Judicial Branch Retirement and Pension Regime. For this purpose, the mathematical actuary prepared a technical report analyzing different scenarios that could arise if the action were granted, so the referenced report is attached below. First scenario: Pursuant to Article 230 of Law 7333, the right to maintain the conditions of said regulation is vested in those who already had 10 years of belonging to the regime in force at that time, before the reform brought about by Law 9544. This scenario would incorporate 6,445 workers under the conditions prior to the reform. In this scenario, the deficit increases by 736,559.87 million colones, which represents an increase of 109%. Second scenario: Pursuant to the right of belonging, which at some point was endorsed by the Constitutional Chamber, it is established that, in protection of rights in the process of acquisition, the possibility of retiring under the conditions of Law 7333 is respected for those who had 20 years of work at the time Law 9544 entered into force (this supported by Convention 102 of the International Labour Organization). This scenario would incorporate 2,514 workers under the conditions prior to the reform. In this scenario, the deficit increases by 306,350 million colones, which represents an increase of 45%. Third scenario: In protection of the principle of equality (Constitutional Article 33), the same treatment is provided to judicial employees as was given with Law number 9388, which is a regulatory reform to the Special Pension Regimes charged to the budget to contain pension spending, where, in that retirement system, the right of workers who were within 5 years of being able to retire was respected to do so under the conditions prevailing in the previous legislation (See Transitory Provision III of said law). This scenario would incorporate 1,028 workers under the conditions prior to the reform. In this scenario, the deficit increases by 171,657.50 million colones, which represents an increase of 25%. It is suggested to analyze beyond the actuarial solvency of the regime, to do so not only from the viewpoint of the impact that assuming the retirements with the conditions prior to the reform would entail, but it is deemed necessary to take into consideration other elements such as what was stated by the International Labour Organization in the Social Security (Minimum Standards) Convention, 1952 (No. 102), Article 29, subsection 1, as well as the rights acquired by judicial servants, social peace, expectations and life plans of judicial officials, as well as working conditions at the time of hiring, as well as the physical and mental wear and tear experienced by the officials, among other factors. Likewise, it should be noted that the modification to the retirement conditions established in Title IX of the LOPJ has had an impact on the attraction, retention, and motivation of the human resources currently working in this Branch of the Republic, reducing the competitiveness of the Judicial Branch as an employer compared to other alternatives or employment options in the market, the effects of which, when added to those caused by the Law for Strengthening Public Finances and the Public Employment Law, could make it more difficult to recruit those persons who wish to join the Judicial Branch, thereby affecting public service and the administration of justice.

25.- Regarding the foregoing evidence requested, RODRIGO ARIAS SANCHEZ, in his capacity as President of the Legislative Assembly, reports in summary: Law Number 9544 was the product of a broad debate, which extended continuously for almost two years between 2016 and 2017. From the processing of the initial text of file 19.922, Law for the comprehensive reform of various pension regimes and related regulations; which began its study on April 5, 2016, and was published in Alcance 110 of La Gaceta No. 126 of June 30, 2016, the mandatory and optional consultations corresponding to the bill were carried out on several occasions. Initially, the bill was heard by the Social Affairs Commission; subsequently, it was assigned to the Special Commission identified with number 20035, and several motions with substitute texts were processed on dates September 13, 2016, March 29, and July 27, 2017; furthermore, it had several opinions: An Affirmative Majority Opinion by Special Commission 20.035 of July 31, 2017, and an Affirmative Minority Opinion of September 20, 2017; subsequently, it went to the Plenary and motions were sent via Article 137 to the reporting Commission, and the First Report on Article 137 motions was received from the Special Commission, File 20.035, on September 26, 2017. As indicated and as recorded in the Law's file, consisting of a total of 18 volumes, the bill was extensively consulted with various public institutions and organizations directly or indirectly involved with the subject matter relating to the Bill. It should be noted as background that in the base text of Bill No. 19.922 “Comprehensive Reform of Various Pension Regimes and Related Regulations” that gave rise to Law 9544, it only referred to one transitory provision, which was Transitory Provision XIII of the Organic Law of the Judicial Branch, No. 7333, of May 5, 1993, for which a reform was proposed as follows: “Transitory Provision XIII.- The reforms to this law shall not be applicable to those judicial servants who, at the time these reforms enter into force, have twenty years or more of working in the Judicial Branch, who shall have the right to retire, in accordance with the provisions previously established prior to this reform, provided they meet all the requirements established in the previous legal regime. With respect to the other persons who, upon the entry into force of this law, hold permanent positions in the Judicial Branch, they shall be granted the benefit of differentiated calculation at the time they meet the requirements to avail themselves of retirement, considering the time served and the contributions made to the Retirement Fund before this reform, applying the following parameters: 1.- For those with between 0 and 10 years of service, the retirement shall be calculated based on the average of the last ninety-six salaries (8 years). 2.- For those with more than 10 and up to 15 years of service, the retirement shall be calculated based on the average of the last seventy-two salaries (6 years).” 3.- For those who have more than 15 and up to less than 20 years of service, the retirement pension shall be calculated based on the average of the last forty-eight salaries (4 years).” The special Commission tasked with reviewing and issuing an opinion on the bill “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo N° 19.922” (This Commission is identified with Expediente N°20035), after having received the responses from the consulted institutions and having approved two substitute texts, on July twenty-seventh, 2017, this Commission approved a majority affirmative opinion (Dictamen afirmativo de mayoría). In this opinion, the reform initially proposed to Transitory Provision XIII is set aside; and six transitory provisions are proposed, among them Transitory Provision VI, whose wording was as follows: “TRANSITORY PROVISION VI. - Judicial employees who meet the requirements to acquire the right to a pension as established by the text of Title IX of Law N°7333 of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions established in the aforementioned text. Once the eighteen months have passed, judicial employees may avail themselves of a transitory ordinary retirement, which shall be governed by the following table: (…) Once the eighteen months have passed, judicial employees may avail themselves of a transitory early retirement, which shall be governed by the following provisions: 1. For purposes of early retirement without having the years of service, the required age from the previous table shall be taken, according to the age or years of service as of the effective date of the law. The calculation of this retirement shall be made by multiplying the pension obtained according to the age or years of service corresponding to the effective date of the law from the previous table, by the number of years served, and the product shall be divided by the years of service required according to the age or years of service corresponding to the effective date of the law; the result shall be the amount of the early retirement. 2. For purposes of early retirement without having the age, the required years of service from the previous table shall be taken, according to the age or years of service as of the effective date of the law. For purposes of the minimum age, it shall be governed by the following table: (…) The calculation of this retirement shall be made by multiplying the pension obtained according to the age or years of service corresponding to the effective date of the law from the penultimate table, by the age; and the product shall be divided by the required age according to the age or years of service corresponding to the effective date of the law; the result shall be the amount of the early retirement. These pensions shall be subject to the cap provided in article 225 of the law.” As can be seen in the opinion (Dictamen), the 18-month period was already included in the Transitory Provision. In reality, the 18-month period was already in the substitute texts previously approved by the Commission, which were, like the base text, consulted by the Commission with various institutions, including the Judicial Branch (Poder Judicial), which, in official communication dated April 26, 2017, the President of the Supreme Court of Justice, Zarella Villanueva Monge, through Official Communication SP – 118 – 17, forwarded the Agreement adopted by the Full Court (Corte Plena) on this new text, in session Nº 09 – 17 of April 24, 2017, through which it renders a negative opinion. In said agreement, the Commission is told that they oppose the text submitted because: “The main objections to the substitute text are the following: “… 12.- Regarding the Transitory Provision regulating early retirement, they consider that the period of eighteen months following the publication of the Law has no technical basis.” On June 21, 2017, through Official Communication OJ – 075 – 2017, the Office of the Attorney General of the Republic (Procuraduría General de la República) issued a Legal Opinion regarding the second substitute text for this Bill and, regarding Transitory Provision VI and the 18-month period, stated: “Regarding Transitory Provision VI, which regulates the option of early retirement for those officials who meet the requirements and who submit it within the period of eighteen months following the law's entry into force; they consider that it does not violate the principle of non-retroactivity nor is it untimely.” Subsequently, via the approval of substantive motions, the new text approved in the First Debate, and later approved in the Second Debate, of Transitory Provision VI states: “TRANSITORY PROVISION VI- Judicial employees who meet the requirements to acquire the right to a pension as established by the text of title IX of Law N.° 7333, of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions established in the aforementioned text.” In the specific case of Transitory Provision VI of Law 9544, the legislator established an 18-month period, a period which, as noted by the Office of the Attorney General of the Republic, does not violate acquired rights nor is it untimely; rather, it responds precisely to facilitating and allowing the transition between the previous law and the new law, especially after the extensive analysis carried out by the legislator according to the discussion of the bill documented in the minutes, documents received from the consulted institutions and organizations, and hearings held, and considering the impact and the need for application of the new regulation; it is considered that the 18-month period is reasonable since it is neither an excessively short nor an excessively long period. The setting of this period responds to the authority that the Legislative Assembly has in the exercise of its function of passing laws in a formal and material sense, where it enjoys broad freedom of configuration to develop the constitutional program established by the Constituent Power. The margin of maneuver regarding the regulated matter has also been termed legislative discretion, understood as the possibility that this body has, when faced with a specific need of the social body, to choose the normative solution or rule of law it deems most fair, adequate, and suitable to satisfy it, within the range or plurality of political options freely offered by the electorate through the system of legislative representation. It is clear that this power is not unrestricted, but must observe constitutional precepts, values, and principles. It is considered that in the case consulted, the Assembly took into consideration that it was not an arbitrary, capricious, or untimely period, but rather a reasonable period that allows the administration and the recipients to make the necessary adjustments to begin the effective and efficient application and enforcement of the law; therefore, at all times, the Legislative Assembly was concerned with respecting constitutional precepts, values, and principles.

26.- Regarding the previous evidence requested, ORLANDO AGUIRRE GOMEZ, in his capacity as President of the Supreme Court of Justice and the Judicial Branch, reports, in summary: Causality in occupational health, influence of health on work performance, and need to promote safe and healthy work environments: Taking as a basis the Causal Model in Occupational Health, which identifies a set of levels and factors that affect the health conditions of workers, it allows them to explain more clearly why the decisions to reform Law 9544 and the entry into force of regulatory laws that have impacted labor relations have had an impact on the health of judicial personnel, as described in the following summary table. Under this analysis model, it is evident that the decisions made at the Macro and Meso levels will have an impact on the micro level, since the three levels of causal influence coexist and are related within the same system, and will therefore always condition the occupational health of workers. The health status of workers has a direct influence on their work performance and therefore, also on the overall results of the organization in terms of service, efficiency, and productivity. By extending the permanence of workers in their jobs and seeing their expectations varied by increasing the age to ranges above 55 years, this had implications both for health, due to the physical and emotional wear and tear on this population, and for the psychological imbalance produced by the change in working conditions, which considerably increase the time in years of service. During the formulation process of the aforementioned institutional policy, it became clear that the changes to the working and employment conditions of judicial personnel, as a result of the recently approved laws (Law 9635 Strengthening of Public Finances, Law N.º 10159 Public Employment Framework Law, Law 9544 Reform of the Judicial Branch Retirement and Pension Regime, the Reform of the Pension Regime;) have caused insecurity and demotivation due to the deterioration of working conditions and a flight of human talent. Number of resignations and reasons for which they were submitted: The number of resignations that have occurred from 2018 to date totals 750, the following table shows the number per year and by sex based on the Human Resources Directorate (Dirección de Gestión Humana) database as of May 8, 2023. Although it is true that the data provided is preliminary, the responses obtained already show the existing link between the resignations of the people consulted and the reform under analysis. Expanding the data remains pending once the consultation process underway is completed. Given that the total number of people who were affected by the Law Reforming the Judicial Branch Retirement and Pension Regime is 1292, which represents 9.68% of judicial personnel. Cost estimation for new hires and training of new personnel: The impact of the resignations that have occurred in the Judicial Branch in terms of costs associated with the hiring and training of new personnel is indisputable. Another study by the consulting firm Gallup found that estimated employee turnover costs can range from 100% to 300% of the worker's annual salary, generating significant costs for organizations. This data can also demonstrate the cost to the Judicial Branch of the departure of these types of professionals, which is described in each of the tables presented above. In a report by the consulting firm Deloitte, which provides information related to the topic under analysis, they indicate that when an employee leaves the company, the company loses two to three times the person's annual salary in terms of intellectual capital, customer relationships, productivity, and experience, in addition to the costs involved in a new hire. In light of the above, it is understandable how, at a business level, talent flight is considered one of the most relevant problems in human management, as it represents a valuable loss in terms of capabilities and with a significant monetary cost. The issue is better understood when all the associated costs it entails are detailed, such as, for example, recruitment and selection processes, since when a judicial official resigns, the institution must invest resources to search for and recruit new candidates. On a microscale, for each person who resigns, the operational cost generated for the management involves searching for candidates and requesting references, and on a macroscale, the institution incurs expenses in advertising vacancies, applying tests to verify suitability for the position, and completing recruitment process activities, which adds costs rapidly, especially because the institution needs to fill multiple job positions. It must be considered that costs increase in light of current corruption and criminality, as this makes the recruitment and selection processes for personnel aspiring to enter the Judicial Branch more onerous by incorporating stages of background investigation and verification of ethical and moral suitability, as well as compliance with competency profiles, stages in which expert professionals from the fields of social work and psychology participate. In addition, the selection process must be added, involving time and resources to review resumes, conduct interviews, evaluate candidates, and make hiring decisions. Internal judicial officials may also be involved in the personnel selection process, also participating in internal competitions, meaning they must dedicate time to these tasks instead of performing their regular responsibilities. Once the new personnel is hired, the institution must invest in their training and orientation. This involves providing information about the organization's policies and procedures, as well as training the person in the skills necessary to perform their job effectively. These costs include training materials, the time of the supervising management and staff assigned for orientation, and costs associated with the induction and training process, such as coordination with the Information and Communications Technology Directorate (Dirección de Tecnología de la Información y Comunicaciones), the Human Resources Directorate, and the Security Department. During the hiring and training process, productivity is likely to be affected. More senior workers have to take on additional tasks to cover the responsibilities of the vacant position, increasing their workload and potentially affecting their performance. Furthermore, new employees may require time to adapt and reach their full performance, due to the learning curve that must be achieved, which can also affect overall productivity. It is understandable that public and private organizations, institutions, and companies implement effective staff retention strategies to minimize costs, maintain stability and continuity at work, leverage accumulated knowledge and experience, improve productivity and performance, and promote a solid organizational culture, also influencing a stable and attractive work environment, which in turn benefits both the workers and the organization in general. Implications of the reform on occupational health from the Human Resources Directorate: It is unavoidable that the change in retirement conditions has had a negative impact on the physical and emotional health of a worker who was already planning their retirement and was prepared to do so. The additional stress and the physical and mental demands of prolonged work can increase the risk of chronic diseases and mental health problems. Furthermore, increasing the retirement age may mean that a person has less time to enjoy their retirement and engage in leisure and self-care activities, which can also have a negative impact on their health and well-being. Below, a series of aspects are detailed that prove and reaffirm the physical and emotional impact that the application of the Law Reforming the Judicial Branch Retirement and Pension Regime has generated in personnel, in addition to the application in less than five years of the Public Finance Strengthening Law and the Public Employment Law, processes that have significantly impacted and weakened the administration of justice, the work environment, and specifically all workers. As observed in the summary table, during the years close to the reform, a spike in anxiety diagnoses is observed; likewise, the increase in diagnoses related to depression that emerge after the reform under analysis was implemented should be noted. Regarding the statistics from the Psychosocial Care Unit (Unidad de Atención Psicosocial) of the Health Services, which provides individual care to the judicial population in the specialties of psychology and social work, table N°15 details the consultations received per year from 2015 to the present. An important increase is observed in the data presented, specifically in the reason for "Life Project" after the reform under analysis, as a reflection of people's need to reorganize their future plans, which is attributable to the impact on retirement expectations. In addition, it is highlighted that since 2021, reasons for consultation related to the implemented regulatory reforms have become visible. In general terms, as reported by the professionals of the Health Services, within the care provided to judicial employees and what they have indicated at some point during medical or psychological care, it has been seen that the consultants state that they had their expectation of retiring upon completing 30 years of service or at age 55, which implied for them having developed a life project based on those options. Once the retirement was modified, those expectations changed radically, leading to a restructuring of that life project and the emotional impact that this generates. In relation to this issue, workers have expressed feelings of frustration, demotivation, discomfort, sadness, apathy, hopelessness, anguish, among others. In addition, cases of anxiety, depression, work-related stress, burned-out worker syndrome, among others, are treated. It is reiterated that the change in the conditions for being able to retire and the lengthening of the labor retirement process cause significant effects on emotional health. The fact of having to work for a prolonged period can generate additional stress and anxiety in the person and negatively affect the person's quality of life; they have less time available to enjoy recreational activities, rest adequately, and spend time with family and friends, which influences overall life satisfaction and emotional well-being.

27.- By resolution at 10:18 a.m. on July 31, 2023, the investigating magistrate (magistrado instructor) requested, as evidence for better resolution, from the Director of the Department of Mathematics and Actuarial Sciences of the Universidad de Costa Rica, to issue a technical actuarial opinion on the following: Taking as background the “Actuarial Study of the Judicial Branch Retirement and Pension Fund” (Productos IICE 1 to 6) carried out in 2016, by the Institute for Research in Economic Sciences (Investigaciones en Ciencias Económicas) of the Universidad de Costa Rica; and taking into account what is established in Transitory Provision VI of Law n°9544, “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contained in Law n° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993 and its reforms” (“Judicial employees who meet the requirements to acquire the right to a pension as established by the text of title IX of Law N.º 7333, of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions established in the aforementioned text.”), to issue an opinion on the following: 1.) In the best reasonable scenario to include the greatest number of judicial officials and in a scenario where, additionally, the financial sustainability or actuarial solvency of the Judicial Branch Retirement and Pension Fund would not be affected, what could have been the maximum period established in Transitory Provision VI of the LAW REFORMING THE JUDICIAL BRANCH RETIREMENT AND PENSION REGIME, NO. 9544 to safeguard the rights of judicial employees who could retire with the requirements established in title IX of Law N.º 7333, of May 5, 1993. The foregoing, based on a projection of how said Fund was at the time the law was issued and on a projection of how the Fund is currently. The foregoing, based on an open population scenario and on a closed population scenario. 2.) Specifically, for the year 2018 at the time of approving Law n°9544, identify how many people could have been included in the indicated Transitory Provision VI, without the Judicial Branch Retirement and Pension Fund becoming underfunded or affected in its financial sustainability or actuarial solvency.

28.- By resolution at 10:23 a.m. on July 31, 2023, the investigating magistrate requested, as evidence for better resolution, from the Director of the School of Mathematics of the Universidad Nacional, to issue a technical actuarial opinion on the following: Taking as background the “Actuarial Study of the Judicial Branch Retirement and Pension Fund” (Productos IICE 1 to 6) carried out in 2016, by the Institute for Research in Economic Sciences of the Universidad de Costa Rica; and taking into account what is established in Transitory Provision VI of Law n°9544, “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contained in Law n° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993 and its reforms” (“Judicial employees who meet the requirements to acquire the right to a pension as established by the text of title IX of Law N.º 7333, of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions established in the aforementioned text.”), to issue an opinion on the following: 1.) In the best reasonable scenario to include the greatest number of judicial officials and in a scenario where, additionally, the financial sustainability or actuarial solvency of the Judicial Branch Retirement and Pension Fund would not be affected, what could have been the maximum period established in Transitory Provision VI of the LAW REFORMING THE JUDICIAL BRANCH RETIREMENT AND PENSION REGIME, NO. 9544 to safeguard the rights of judicial employees who could retire with the requirements established in title IX of Law N.º 7333, of May 5, 1993. The foregoing, based on a projection of how said Fund was at the time the law was issued and on a projection of how the Fund is currently. The foregoing, based on an open population scenario and on a closed population scenario. 2.) Specifically, for the year 2018 at the time of approving Law n°9544, identify how many people could have been included in the indicated Transitory Provision VI, without the Judicial Branch Retirement and Pension Fund becoming underfunded or affected in its financial sustainability or actuarial solvency.

29.- Regarding the previous evidence, JESENNIA CHAVARRÍA VÁSQUEZ, in her capacity as Director of the School of Mathematics, reports that said school does not currently have specialists or research projects that are or have conducted actuarial studies of the Judicial Branch Retirement and Pension Fund. Therefore, they are unable to issue an opinion or statement responding to the request.

30.- By resolution of the Presidency, at 1:32 p.m. on August 16, 2023, and in accordance with the provisions of articles 10 and 85 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), for the holding of the oral hearing, the time of NINE O'CLOCK on OCTOBER FIFTH, TWO THOUSAND TWENTY-THREE is set in the Hearing Room (Sala de Vistas) located in the Auditorium of the Judicial Investigation Agency (Organismo de Investigación Judicial). Due to the nature of this procedural act, the parties are informed of certain rules on attendance (see correction of material error by resolution at 11:40 a.m. on August 25, 2023 and resolution of change of venue at 11:09 a.m. on September 1, 2023). The following were summoned to this hearing: the representative of the plaintiff party; the representative of the Office of the Attorney General of the Republic, the representative of the Legislative Assembly, the representative of the Supreme Court of Justice, and the representative of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial). In addition, regarding the evidence requested: the representative of the Institute for Research in Economic Sciences of the Universidad de Costa Rica, the representative of the Department of Mathematics and Actuarial Sciences of the Universidad de Costa Rica, the representative of the School of Mathematics of the Universidad Nacional. Finally, the active coadjuvants: A representative of the individual coadjuvants, the representative of the National Association of Judicial Branch Professionals (Asociación Nacional de Profesionales del Poder Judicial, ANPROJUD) and the representative of the Judiciary Union (Sindicato de la Judicatura, SINDIJUD).

31.- Regarding the previous evidence, JAVIER TREJOS ZELAYA, in his capacity as Director of the School of Mathematics of the Universidad de Costa Rica, reports that a copy of the Minutes of the Ad Hoc Commission EMat-50-2023 is submitted with the corresponding opinion, where it is indicated in summary that the commission reaches the following conclusions: 1. The results of the IICE study of the Universidad de Costa Rica present the possible actuarial effects of various proposals, with information up to December 2015. However, the reform in Law 9544 was not evaluated in any of these analyses. The actuarial study that effectively considers the impact of the reform was carried out by PiPCA in July 2019. 2. The aforementioned study demonstrates that the implemented reform had a positive impact on the solvency indicator (see Table 9.6 of the study). However, the Fund still presents an actuarial deficit even in this improved condition. Therefore, any modification to the transition period could increase the actuarial liability, which in turn would decrease the actuarial solvency indicator and, consequently, would put the actuarial situation of the Fund at risk. 3. On the other hand, the study reveals (see Table 9.5) that the liability corresponding to pensions in course of payment far exceeds the available reserve. Consequently, even under Law 9544, the Fund would adjust to the execution of article 12 of the SUPEN Actuarial Regulations. Any increase in this provision due to an extension of the transition period would worsen this situation. 4. Furthermore, a decrease in the coverage of vested benefits (derechos devengados) is observed (see Table 9.3), despite the implementation of the reform. Consequently, any increase in the liability would have a negative impact on this coverage. 5. Notwithstanding the foregoing, it is not possible to estimate the increase in the actuarial liability that would result from a modification to the transition period due to the lack of the corresponding actuarial model, as well as the necessary databases and computational implementation. Even if these resources were available, carrying out such an analysis would require a significant investment of time (approximately 6 months) and human resources (at least one professional in Actuarial Sciences), resources that the School of Mathematics of the UCR does not have at this time.

32.- By resolution of the investigating Magistrate, at 11:50 a.m. on August 25, 2023, the President of the Administrative Board of the Judicial Branch Retirement and Pension Fund is requested, regarding the evidence requested, to EXPAND upon the following information provided: Specify concretely, what is the longest period that could be established in the challenged Transitory Provision VI, for the purpose of including the greatest number of people who can retire under the regime prior to the reform, without endangering the current financial solvency of the Judicial Branch Pension Fund. The methodology in force at the time of the reform, i.e., open population, may be used for this purpose, and also compared with the current methodology of closed population. The foregoing within ten days following the notification of that pronouncement (see resolution at 4:05 p.m. on September 6, 2023).

33.- Regarding the previous evidence requested, JUAN CARLOS SEGURA SOLIS, in his capacity as President of the Administrative Board of the Judicial Branch Retirement and Pension Fund, reports, in summary: 1) For a better analysis, it is appropriate to clarify some technical concepts about the regime of the Judicial Branch Retirement and Pension Fund: Open population: Assumes that the actuarial valuation of the pension regime continues to receive affiliated persons, making it necessary to estimate the entry of future affiliates. Closed population: Assumes that the actuarial valuation of the pension regime no longer receives more affiliated persons, the involved population being known as of a certain date. Vested benefits (Beneficios devengados): Estimation of the amount of the benefits of current pensioners and affiliates attributable to the present period and previous ones, whose determination is made through the projected unit credit method, according to which each accumulation period is considered to generate an additional unit of right to the benefits, each unit being measured separately to form the final obligation.

In this regard, it is worth noting that if the closed-population methodology were used to measure the actuarial health of the FJPPJ regime, stricter conditions would arise than those obtained through the use of the open-population methodology, which was historically used prior to the reform to analyze this regime and which is still used to analyze the IVM regime. 2) To indicate specifically what is the maximum period that could be established in the challenged Transitorio VI, in order to include the greatest number of people who can retire under the pre-reform regime, without endangering the current financial solvency of the Judicial Branch Pension Fund. To address the inquiry made by the esteemed Constitutional Chamber, the execution of an additional actuarial scenario was required, contracted to MBA. Raúl Hernández González, a mathematical actuary who performed the mandatory analysis of the regime for the period ended in 2022, a study that is attached. The following table presents a summary of what was determined in each of the runs performed. The results shown include the number of additional people who can benefit, as well as the total increase in the deficit. The respective balance is included in the annexes:

Currently the solvency ratio is less than one, therefore, any improvement in benefits would cause the solvency to decrease further. Regarding the table and information above, it should be clarified that the figures are expressed in billions of colones, for which reason, for the last scenario of a 10-year period and 2,759 people, it should be read as three hundred twenty-four thousand eleven million colones, equivalent to approximately six hundred three million dollars in increased deficit compared to the open scenario with a 1% growth rate that was used as a base under said actuarial valuation methodology. It must be clear that any increase in time in Transitorio VI would cause an increase in the expenditures and/or obligations to which this regime is subjected, for which reason all scenarios show a worsening in the corresponding indicators; the claim of this action subject to constitutional analysis would cause an increase in the deficit of the Judicial Branch Retirement and Pension Fund Regime –FJPPJ, relative increases between 13.31% and 87.65% of said deficit. Similarly, when evaluating the solvency ratio indicator, this indicator relatively worsens between 1.57% and 9.40%; both indicators coincide in their tendency toward the worsening of the financial health of the regime, should any extension be approved. However, in addition to the above, the esteemed Constitutional Chamber must assess whether or not these worsening in these indicators are significant compared to the rights pursued by the petitioners. Thus, the totality of the scenarios analyzed by said professional show significant increases in the regime's deficit, causing a deterioration in its financial health conditions and long-term actuarial stability, for which reason it is not considered possible to increase the period of Transitorio VI without there being an impact on the regime. In the opinion of the undersigned, it is respectfully suggested to analyze beyond the actuarial solvency of the regime, to do so not only from the point of view of the impact that assuming retirements under the conditions prior to the reform would imply, but rather it is deemed necessary to take into consideration other elements such as what was stated by the International Labour Organization in the Social Security (Minimum Standards) Convention, 1952 (No. 102), Article 29, paragraph 1, as well as the acquired rights of judicial employees, social peace, expectations and life plans of judicial officials, as well as working conditions at the time of hiring, the physical and mental wear and tear that the officials have experienced, among other factors. According to the actuarial report provided, the regulations applicable to the FJPPJ regime, as well as the pro-fund principle established by the Organic Law of the Judicial Branch in its Article 226, it is estimated that any extension to Transitorio VI would pose a latent danger to the sustainability of the Judicial Branch Retirement and Pension Fund regime, from its financial and actuarial perspective. However, it is equally considered that in the analysis of this unconstitutionality action, other non-financial elements must be assessed for its resolution, such as the principles of acquired rights, reasonableness in the adjustment, life plans, among others.

34.- According to the certification of the Secretary of the Constitutional Chamber, starting at 09:00 hours on October 5, 2023, the convened hearing was held. The Court was composed of the magistrates Fernando Castillo Víquez (president), Fernando Cruz Castro (investigating magistrate), Luis Fernando Salazar Alvarado, Jorge Araya García, José Roberto Garita Navarro, Ana María Picado Brenes, and Alejandro Delgado Faith.

35.- The prescriptions of law have been complied with in the proceedings.

Drafted by Magistrate Castillo Víquez; and,

Considering:

I.- Preliminarily.- Regarding the Magistrates qualified to hear this action.- During the processing of the case file, different grounds for disqualification arose that were raised by both the permanent magistrates and the substitute magistrates, as they are mostly officials or retirees of the Judicial Branch. All these procedures were duly processed and resolved by the Presidency of the Constitutional Chamber, as provided by law. Now then, as has been resolved, the situation is that in the proceedings processed before this Chamber related to the pension and retirement regime of the Judicial Branch, both the regular magistrates and the substitute magistrates, for various reasons, could not hear these matters, which would result in the impossibility of integrating a Chamber with seven magistrates for its resolution. However, this Chamber is constitutionally obligated to resolve the matters submitted to its knowledge, without circumstances such as those now presented - lack of the regular and substitute magistrates necessary to integrate the Chamber - enervating that obligation or relieving this Court of its fulfillment. Therefore, as provided in Article 14 of the Law of Constitutional Jurisdiction and numeral 29, subsection 2), of the Organic Law of the Judicial Branch – "When the ground covers both regular and substitute members, the case must be heard by the regular members, notwithstanding the ground and without disciplinary liability regarding them" – it falls to the regular magistrates to hear these matters by legal imperative, without disciplinary liability reaching them for this. The foregoing constitutes, then, a ground of normative justification that releases from all liability, including criminal, the magistrates who hear a matter in which the substitute magistrates, necessary to integrate the Court, have some ground for disqualification or impediment to hear the same matter. Thus, the regular Magistrates Castillo Víquez, Cruz Castro, Salazar Alvarado, and Araya García are deemed qualified. In the case of Magistrate Garro Vargas, her disqualification was admitted for other reasons, and Magistrate Alejandro Delgado Faith was appointed by lot. In the case of Magistrate Rueda Leal, his disqualification was admitted for the reasons stated, and Magistrate Aracelly Pacheco Salazar was appointed by lot. In the case of the newly appointed Magistrate Hess Herrera, her disqualification was admitted for the reasons stated, and Magistrate Ana María Picado Brenes was appointed by lot.

II.- Object of the challenge.- The petitioners challenge Transitorio VI of Law No. 9544, which is the “Reform of the Judicial Branch Retirement and Pension Regime, contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its amendments,” which provides as follows:

“Transitorio VI.- Judicial employees who meet the requirements to acquire the right to a pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions established in the aforementioned text.” The petitioners allege that said norm contains several unconstitutional defects, both procedural and substantive. In this regard, given that by resolution number 2022-008712 of 09:10 hours on April 20, 2022, this Chamber proceeded to reject on the merits several of said allegations, the following recital indicates which allegations this Constitutional Jurisdiction must now rule on.

III.- Regarding the rejection on the merits of several allegations of unconstitutionality made through resolution 2022-008712, and the allegations to be examined in this action.- This Chamber, within this same case file, issued resolution number 2022-008712 of 09:10 hours on April 20, 2022, where it proceeded to reject several allegations on the merits. The foregoing because it had already ruled on them in resolution number 2021-011957 of 17:00 hours on May 25, 2021. In order to narrow down the allegations on which this Chamber admitted this action, what has already been resolved is indicated below.

A. REJECTION ON THE MERITS OF THE ALLEGATIONS This Chamber, by resolution number 2022-008712 of 09:10 hours on April 20, 2022, gives course to this action and, at the same time, rejects on the merits, stating the following: “The action is rejected on the merits in relation to the violation of Articles 9, 33, and 167, principles of publicity, equality, proportionality and reasonableness and progressivity, as well as Article 208 bis of the Regulations of the Legislative Assembly and Article 26 of the American Convention on Human Rights.” Thus, of all the allegations observed in the filing brief, the following have already been resolved:

Violation of Article 167 of the Constitution and Article 208 bis of the Legislative Assembly Regulation, due to lack of consultation of the modified text with the Judicial Branch and lack of publication. Violation of Article 167 of the Constitution and Article 208 bis of the Legislative Assembly Regulation, for being approved without a qualified majority. Violation of the principle of judicial independence, Articles 9, 154, 167, and 177 of the Constitution, due to the creation of the Fund Administrative Board. Violation of Article 26 of the American Convention on Human Rights and the principle of progressivity. Violation of the right to a dignified, proportional, and reasonable pension. Violation of the principle of equality.

It can be observed that the basis for the rejection was that these allegations were already resolved in a prior unconstitutionality action, which resolved the challenge of the entirety of Law No. 9544 in general, through judgment No. 2021-11957. The rejection on the merits was therefore based on the following considerations already expressed by this Chamber in that ruling.

1.) Violation of Article 167 of the Constitution and Article 208 bis of the Legislative Assembly Regulation, due to lack of consultation of the modified text with the Judicial Branch and lack of publication:

In the opinion of the petitioners, the text finally approved in the first debate underwent modifications, and despite this, it was not consulted again with the Judicial Branch, nor was it published. They consider that all of this violates Article 167 of the Constitution and the principle of publicity (see what is indicated in rulings No. 2018-5758 and No. 2005-398, No. 2012-4621, No. 2017-19636). They indicate that the matter of the Judicial Branch Retirement and Pension Fund is part of the institutional organization and functioning; therefore, it should have been mandatorily consulted. Regarding publication, that same defect was indicated in judgment No. 2018-5758, which resolved the optional legislative consultation, stating that it constituted an essential defect of the legislative procedure for omitting the publication of the substitute text. Given that the figure of remedy or validation cannot be used (by virtue of publishing the text after it was approved in the first debate) because it is an abbreviated procedure, this Chamber so indicated in judgment No. 2012-4621 (“when the Legislative Assembly … creates a special procedure, the application and observance of it must be absolutely rigorous and strict.”). They add that the unpublished and approved text varied essential aspects such as retirement age, years of service, employee contributions, the transitional space, among others; hence the imperative need to comply with the requirement of publicity.

In this regard, this Chamber indicated in resolution No. 2022-008712 (referring to what was resolved in resolution No. 2021-011957) in summary the following:

On the use of Article 208 bis (now 234 bis) of the Regulations of the Legislative Assembly:

It was indicated that, based on Article 208 bis (now 234 bis) of the Regulations of the Legislative Assembly, the deputies approved a special procedure for the bill of legislative file No. 19,992. A special procedure that requires the approval of an order motion, approved by two-thirds of the votes of all members of the Legislative Assembly, only for bills whose approval requires an absolute majority, provided that the democratic principle is respected. The indicated order motion for this bill was approved in ordinary session No. 37 of the Plenary of the Legislative Assembly on June 30, 2016, approved by 39 deputies in favor and 10 against. After the examination made by the Chamber in resolution No. 2018-005758, which considered the bill when it was reviewed by this Chamber via an optional consultation of constitutionality, it was indicated: “that the Chamber considers that there is no new reason or argument specifically regarding those points that would imply a modification of the already expressed criterion and, therefore, consequently, regarding those specific points, the procedure provided in Article 208 bis of the Regulations of the Legislative Assembly (now 234 bis) conforms to the Law of the Constitution.” Furthermore, as the allegation of violation of this norm of the Regulations of the Legislative Assembly is related to publication, since the approved motion so indicated (“…h) If during the consideration of the file in its committee proceedings, a substitute text motion is approved or when the committee agrees to changes that substantially modify the bill, the Committee Presidency will request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity and consideration of the bill will be suspended…”), it refers to what is indicated in the following point on publication.

Regarding the lack of publication of the text approved in the Special Committee on September 13, 2016:

It was indicated that, although this Chamber verified that the new text approved by the Special Committee on September 13, 2016, was indeed not published, when it stated: “This Special Committee is installed on the following September 13th, and on that same date, in its ordinary session No. 1, motion No. 2 (3-01 CE) from several deputies was considered to formalize what had already been decided the previous June 30th, that is, to take as the basis of discussion the substitute text that was in file No. 19,651 as had been ordered in the Plenary when it was approved to give the file procedure via Article 208 bis of the regulations; a motion that was approved unanimously by the members of the Special Committee (see folio 1957 of legislative file No. 19,922). As is clear from the legislative file, and as stated by some petitioners, this new text approved by the Special Committee on September 13, 2016, was indeed not published, and this Chamber recorded this in advisory opinion number 2018-005758 at 15:40 hours on April 12, 2018, when considering the Optional Legislative Consultation filed in relation to this bill.” Despite this, the Chamber considered that publicity is not an end in itself and, therefore, the lack of publication at a specific procedural moment does not always constitute a vitiating defect of the legislative procedure. Due to this, and because subsequently that text was abandoned for another text and was not the one finally approved, it was resolved that: “In the judgment of the majority of this Court, the defect invoked does not have the merit to be subsumed within the essential or substantial defects, nor even into a relative one, given that it has not violated substantial procedures of the parliamentary procedure; it is rather a defect of little importance.” Regarding the extemporaneous publication of the modified text approved in the first debate:

The Chamber indicated that in the specific case of file 19,992, it was not a lack of publication, but a late or extemporaneous publication. This because it was verified that the text of the Affirmative Majority Report accepted by the Special Committee on July 27, 2017, which corresponded to the fourth text, was approved in the First Debate in extraordinary session No. 014 of the legislative Plenary on October 30, 2017 (see folio 4000 of Volume 17). Said text contained certain modifications (due to the approval of substantive motions and reiteration motions). Thus, the publication occurred after it was approved in the first debate, in Digital Gazette No. 212, Alcance No. 268 of November 9, 2017 (see folio 4368 of Volume 18 of the legislative file). However, this Chamber considered that this did not violate the principle of publicity in consideration of the following: “It must be reiterated, first, that in this case the mentioned publication was indeed made, but a presumed late or extemporaneous publication of such text in question is challenged. It should therefore be remembered that this Chamber has admitted that the lack of publication at a specific procedural moment does not always constitute a vitiating defect of the legislative procedure. (…) In which case, the Chamber considers that in the specific case, the alleged late or extemporaneous publication of the substitute text has not caused a true obstruction to popular participation or seriously affected the transparency of the parliamentary procedure.” Regarding the allegation of lack of consultation with the Judicial Branch:

Neither did the Chamber find any procedural defect regarding the allegation of lack of consultation with the Judicial Branch of the text approved in the first debate, for it was indicated that the Supreme Court was formally consulted on the content of the bill processed in legislative file No. 19,922 on 3 occasions and was able to issue its opinion on those 3 opportunities (official communication CE208-BI-02-2016 of September 14, 2016, see folios 169 and 172 of Volume 1; official communication AL-20035-OFI-0029-2017 of April 17, 2017, see folio 1757 of Volume 8; and official communication AL-20035-OFI-0043-2017 of July 31, 2017, see folio 2625 of Volume 11). Thus, the Chamber considered that a fourth consultation with the Judicial Branch was not necessary, especially taking into account what is indicated in the following point, namely, that the bill in question did not need to be consulted with the Judicial Branch because it is typically administrative matter, such as the administration of the Pension Fund, which is not subsumable under the constitutional requirement for modifications to the organization and functioning of the Supreme Court of Justice that concern its typical, exclusive function, that is, the jurisdictional function and those essential administrative functions that support its primary function.

2.-) Violation of Article 167 of the Constitution and Article 208 bis of the Legislative Assembly Regulation, for being approved without a qualified majority.

The petitioners indicate that, as provided in Article 167 of the Constitution, to be able to depart from the opinion of the Judicial Branch, the Legislative Assembly required a qualified majority. However, the challenged law was approved with 31 votes in favor. They add that on the three occasions when the Court was consulted, it was emphatic in indicating its negative position, which therefore obliged the Legislative Assembly to approve the law with a qualified majority. Furthermore, it was a violation of the Regulation because Article 208 bis of the Assembly Regulation establishes that the only projects subject to an abbreviated procedure are those that require a simple majority, a scenario that does not occur in this case. They argue that the first debate in extraordinary session No. 14 of October 30, 2017, was approved with 31 votes and the second debate in ordinary session No. 163 of April 19, 2018, was approved with 34 votes in favor. Thus, neither met the required 38 votes.

In this regard, this Chamber indicated in resolution No. 2022-008712 (referring to what was resolved in resolution No. 2021-011957) that the bill did not need to be consulted with the Court, and therefore, the application of Article 167 of the Constitution was not applicable, nor the majority established therein:

“In the advisory opinion No. 2018-005758 of 15:40 hours on April 12, 2018, we expressed the following:…

However, in view of what was previously stated, this Court considers that the subject matter of legislative file number 19,922 is not within the assumptions set forth in Article 167 of the Political Constitution and, therefore, there was no obligation to conduct a consultation with the Supreme Court of Justice.

… whose functions are typically administrative, that is, the administration of the cited Fund, which is not subsumable under the constitutional requirement for modifications to the organization and functioning of the Supreme Court of Justice that concern its typical, exclusive function, that is, the jurisdictional function and those essential administrative functions that support its primary function.” (…) For the majority of this Court, there are no reasons that justify varying the criterion already expressed in said advisory opinion, in the sense that the subject matter of legislative file No. 19,922, and which was finally approved as Law No. 9544, does not fall within the assumptions set forth or contemplated by Article 167 of the Political Constitution and, therefore, neither did the constitutional obligation exist to conduct a consultation with the Supreme Court of Justice, nor – as a corollary – did the obligation exist for the cited bill to be approved by two-thirds of the total members of the Legislative Assembly, given the negative opinion of the Supreme Court of Justice on the bill. Ergo, it is also appropriate to dismiss the unconstitutionality action regarding this point.” Thus, it concludes that, although it is correct that the bill in question was approved by 31 votes in the first debate and 34 votes in the second debate, the 38 votes mandated by Article 167 of the Constitution were not required, because the subject matter of the bill is administrative and does not refer to the organization and/or functioning of the Judicial Branch.

3.-) Regarding the allegation of violation of judicial independence due to the creation of the Judicial Branch Retirement and Pension Board:

The petitioners indicate that the creation of a structure within the Judicial Branch but independent of it in every sense, which modifies the powers and functions of both the Full Court and the Superior Council, constitutes an intrusion on the independence and separation of Powers established in Articles 9 and 154 of the Political Constitution.

In this regard, this Chamber indicated in resolution No. 2022-008712 (referring to what was resolved in resolution No. 2021-011957) that: “the majority of this Court concludes that there is no impact on those extremes in the terms of Article 167 of the constitution. The fact that an Administrative Board of the Judicial Branch Retirement and Pension Fund is created per se does not entail the creation of a body that substantially varies the administrative functions of the Judicial Branch; the same occurs with the elimination of those functions that the Supreme Court of Justice and the Superior Council had in relation to the matter, hence it was not under the assumption of numeral 167 of the Fundamental Charter. That is, essential administrative competencies connected with the jurisdictional function were not being removed.” Thus, it concludes by indicating that the legislator's initiative to make changes to the Judicial Branch pension regime does not signify a hollowing out of the essential content of judicial independence; therefore: “According to the foregoing considerations, a qualified majority was not required for its approval, and given that the bill of legislative file No. 19,922 was approved in the First Debate with 31 deputies in favor and 7 against (folio 4173 Volume 17 of the legislative file), while in the Second Debate it was approved with 34 deputies in favor and 9 against (folios 4437, 4608, and 4637 Volume 18 of the legislative file), it is not considered that the alleged defect to the principle of judicial independence exists.” 4.-) Regarding the allegation of violation of Article 26 of the American Convention on Human Rights and the principle of progressivity.- The petitioners indicate that among social rights is the right to work and with it to a retirement. This right corresponds to a social security right that has been ratified not only by different international instruments but by national legal norms, and that once certain conditions are held, these cannot be varied to the detriment of the human rights of those who hold the right or the consolidated legal situation. They argue that this transitional provision becomes a restrictive norm, not progressive, of their human rights, because the enormous number of years they have belonged to and contributed to the regime was not respected, and whose benefit should have been safeguarded with a reasonable, fair transitional provision, supported by technical and objective criteria. Regarding the application of Article 26 of the American Convention on Human Rights, see ruling No. 1995-3932.

In this regard, this Chamber indicated in resolution No. 2022-008712 (referring to what was resolved in resolution No. 2021-011957) that: “there are no elements of judgment that allow affirming that the period established in Transitorio VI of Law 9544 is unreasonable or disproportionate with respect to the purpose intended by the provision, and rather, the legislative decision is justified in light of the changes made. Likewise, there is no infringement of conventional law to declare and therefore the action must be dismissed in this aspect.” From which it is understood that, if the Chamber has elements of judgment to assess the reasonableness and proportionality of the period established in Transitorio VI, it could also be considered violative of the principle of progressivity of human rights. Therefore, this aspect will be examined on the merits later in this resolution.

5.-) Regarding the allegations of violation of the right to a dignified, proportional, and reasonable pension:

The petitioners indicate that Transitorio VI is a disproportionate and unreasonable measure, as the harm imposed on them by going from a few months to more than ten years is too great. They indicate that a life project was contemplated, given the working conditions that were offered to them, within which was the enjoyment of a dignified retirement through the Judicial Branch Retirement and Pension Fund, upon reasonable completion of years of service and age, according to which they could retire with a dignified income, after having dedicated a whole productive life to the service of the community and the Judicial Branch. They insist that the membership in and eventual enjoyment of a retirement charged to the Judicial Branch Retirement and Pension Fund forms part of the employment contract and the working conditions that were established for the petitioners at the time, which have been maintained during twenty, twenty-five, and twenty-eight years of service, and it is contrary to constitutional law and human rights for them to undergo such a drastic modification as that established by Transitorio VI of Law 9544, which is contrary to the right to work and to retirement established in Article 73 of the Political Constitution. This Chamber, in its judgment number 5758-2018, indicated that variations to the pension right were permitted provided they are established through a formal law, are reasonable, and do not affect its essential content.

In this regard, this Chamber indicated in resolution No. 2022-008712 (referring to what was resolved in resolution No. 2021-011957) that retirement constitutes the economic benefit obtained after working and contributing to a specific regime for a determined period, and whose purpose is to guarantee a dignified life for the person after their stage as a worker ends.

Declaring that a constitutional and fundamental right to retirement does exist, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with articles 33 and 73 of the Constitution; and additionally, in articles 25, 28, 29 and 30 of the Social Security (Minimum Standards) Convention, No. 102 of the ILO; article 16 of the American Convention on the Rights and Duties of Man; articles 22 and 25 of the Universal Declaration of Human Rights; article 31 of the International American Charter of Social Guarantees; article 5 of the Equality of Treatment (Social Security) Convention, number 118 of the I.L.O.; article 9 of the International Covenant on Economic, Social and Cultural Rights, international scope, which in accordance with Constitutional article 7, is integrated into our legal system. The Constitutional Chamber also indicated that, since the right to a pension is not an absolute right, the State has the power to regulate, order, and limit the scope of such right. In this sense, it was concluded that the State, through its competent authorities, may adjust the specific conditions for exercising the retirement right enjoyed by workers, not only through the establishment of requirements to be met for its effective enjoyment, but also through the precise modification of the characteristics of that enjoyment, in order to balance the sustainability of said regime and respecting the requirement that changes be established by a formal law, be reasonable, and not affect its essential content. Thus, the Chamber concludes that: “upon verifying that the variation of requirements ordered by … Transitory Provision VI of the bill have the ultimate goal of guaranteeing the retirement right of judicial employees, the Chamber discards the alleged defect.” From which it is understood that, should the Chamber have evidentiary elements to assess the reasonableness of the term established in Transitory Provision VI, that could also be considered a violation of the right to a dignified, proportional, and reasonable pension. So then, this aspect will be examined on the merits later in this resolution.

6.-) Regarding the allegations of violation of the principle of equality:

The petitioners indicate that other retirement reforms and the persons who have been subject to them have had a staggered transitory provision that has allowed them to adjust their living conditions and retirement expectations, a situation that was not permitted in the Judicial Branch. They add that judicial employees have gone from having an expectation of a prompt retirement, within a few years, to facing more than a decade of work, only to later receive a retirement pension that does not amount to even fifty percent of their salary and for which they have contributed a substantial sum of their monthly salary income for over 20 years. For this reason, they consider it to be completely discriminatory and in violation of the fundamental rights stipulated in our Political Constitution to directly affect a population so vulnerable and with scarce employment sources in our country. No retirement group that has undergone reforms has endured a transitory provision as tight as the one my represented parties are experiencing. Without any objective reason justifying a difference in treatment between the petitioners and those who work in the Supreme Elections Tribunal, it is to these latter individuals that an unrestricted right to recognition of their retirement conditions was declared, even when in the presence of repealed legislation, regardless of the time it took them to meet those requirements (see Transitory Provision II of Law n°9544).

In this regard, this Chamber indicated in resolution n°2022-008712 (referencing what was resolved in resolution n°2021-011957) that: “a declaration of unconstitutionality in this case requires the provision of evidentiary elements capable of demonstrating the lack of proportionality and reasonableness of using the 18-month term established by constitutional jurisprudence from the effective date of the reform, for the extension of the coverage scope of the previous pension regime.” From which it is understood that, should the Chamber have evidentiary elements to assess the reasonableness and proportionality of the term established in Transitory Provision VI, that could also be considered a violation of the principle of equality. Therefore, this aspect will be examined on the merits later in this resolution.

• B)REGARDING THE ALLEGATIONS ADMITTED IN THIS ACTION As indicated by the resolution that gave course to this action, it was admitted for the analysis of the remaining arguments indicated by the petitioners, namely:

“Course is given to the present unconstitutionality action against Transitory Provision VI of the Law for the Reform of the Retirement and Pension Regime of the Judicial Branch, No. 9544, for the alleged violation of articles 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 and 190 of the Political Constitution, Conventions 102, 118, 128 and 157 of the ILO, and the principles of democracy, solidarity, legal certainty, good faith, legitimate trust, transparency, relative intangibility of assets, non-confiscation, and respect for acquired rights and consolidated legal situations, articles 14 of the International Covenant on Civil and Political Rights and 9 of the International Covenant on Economic, Social and Cultural Rights.” Additionally, due to what was stated in previous points, it must be understood that this Chamber has admitted this action, regarding the term established in the challenged Transitory Provision VI, provided that the necessary evidentiary elements or elements of judgment are available for this Chamber to conduct its assessment regarding the possible violation of the principles of reasonableness and proportionality, the principle of progressivity, the principle of equality, and the right to enjoy a dignified, reasonable, and proportional pension.

In summary, this action and the consolidated action were admitted for the examination of the allegations grouped in the following points:

1.-) Violation of the principles of reasonableness and proportionality due to a lack of technical criteria in the term established in the challenged Transitory Provision VI, and thereby violation of the principle of progressivity, the principle of equality, and the right to enjoy a dignified, reasonable, and proportional pension: The petitioners consider that there is no legal basis whatsoever to support the eighteen-month term granted as the Transitory Provision for the application of the new reform, a term that is irrational and capricious, because there is no legal foundation or technical criterion to support it. They indicate that, from the study of the legal modifications to the existing retirement regimes in Costa Rica, it is observed that none has undergone such a drastic and unequal modification (see, for example, the table of reforms to the National Teaching Profession, to the Disability, Old Age and Death regime of the CCSS). Thus, it violates Constitutional article 33 because the modifications to the Judicial Branch Retirement and Pension Fund affect the employees of this branch in a more burdensome manner than other public employees have been affected. From the study of the legal modifications to the existing retirement regimes in Costa Rica, it is observed that none has undergone such a drastic and unequal modification as the one that has come to operate in the Judicial Branch Retirement and Pension Fund with the entry into force of Law n° 9544. All the legal reforms to the existing retirement regimes in Costa Rica, whether of the first Pillar or substitute regimes, have had transitory provisions that allow for gradualness in their application, respecting acquired rights, consolidated legal situations, and allowing the reform to be introduced to the population in a way that does not violate their fundamental rights. They consider that it is not reasonable that, a few years away from fulfilling the requirements established by the legislator, these are varied without a technical study supporting the appropriateness of the new measures to be applied. Likewise, the International Labour Organization has pointed out the need to have technical criteria to make variations in pension regimes. The foregoing is not respected in the specific case, since Law number 9544 essentially changes all the retirement conditions on which their represented parties had an expectation for many years. Thus, the conditions of time served, salary, mandatory contribution amounts are changed, the income that would be received as a retirement pension is substantially changed; and, above all, the remaining service time is changed even though the majority have more than 25 years of service for the institution. They allege that the harm imposed on them is too great, going from a few months to more than ten years - in most cases - to acquire a retirement right, which, moreover, is now ruinous, despite having contributed for so many years to the Judicial Branch Retirement and Pension Fund. Furthermore, they assert that it was not proven within the legislative record that there was a danger to the Fund's finances by allowing the group of people who were ten years or less away from acquiring the retirement right to endanger the health of the Judicial Branch Retirement and Pension Fund, making Transitory Provision VI arbitrary. In Comparative Law, there are rulings that ratify reasonable transitory provisions on retirement conditions (see rulings T-235-2002 and T-631-2002 of the Colombian Constitutional Court). Thus, it is indicated that there is a technical absence of a transitory provision that introduces the new retirement conditions as an abrupt, non-progressive imposition, and to the detriment of acquired rights and consolidated legal situations.

2.-) Violation of consolidated legal situations in the challenged Transitory Provision VI, and thereby violation of other inalienable fundamental rights and of the principles of democracy, solidarity, legal certainty, good faith, legitimate trust, transparency, relative intangibility of assets, non-confiscation, and respect for acquired rights and consolidated legal situations: According to the petitioners, the life project of those who placed their legitimate trust and good faith in the institution as an employer and with the expectation of having a dignified retirement through the Judicial Branch Retirement and Pension Fund is truncated, since they have contributed for many years, giving a significant portion of their monthly salary, which implies a variation to the conditions of the employment contract that were agreed upon between the petitioners and the Judicial Branch 20 years ago or more. They consider that, if they already have 20 years or more of judicial service, it becomes more difficult to make the decision to resign due to the gross extension of those terms and given the large amount of money these individuals have invested in the Retirement Fund. They indicate that in other pension regimes, consolidated legal situations are indeed being respected, and transfer to another, less confiscatory retirement regime than that of the Judicial Branch Fund is even permitted. From ruling No. 2794-2003, it is extracted that the Costa Rican State has the obligation to respect the acquired rights and consolidated legal situations of judicial employees and to seek their progressive development. Thus, the challenged law does not allow them a retirement with the requirements established in title IX of Law n°7333 of May 5, 1993. They add that, by not including them in Transitory Provision VI of the challenged Law, without a technical-scientific, objective, clear, and quantifiable analysis, the constitutional principle of legitimate trust is violated (see votes numbers 2010-010171, 8000-16, 8689-19, 6198-20 and 2910-18), given that there was an abrupt and significant change to the rules of the game, thereby violating their good faith and the legal certainty that protected them within an employment contract with determined retirement conditions. Regarding the principles of legal certainty, transparency, good faith, democratic system, and solidarity, they point out the necessity that exists for citizens to know at all times what to expect in their relations with the State and with other private individuals. In this way, being even harmful to their assets and confiscatory, since their expectations were maintained over a longer period and from one moment to the next they saw their conditions worsened. The petitioners maintain that the Judicial Branch Retirement and Pension Fund should not be evaluated solely from an economic perspective, as it involves fundamental rights - inalienable - associated with every working person, who during their working years contributed to a regime at a percentage higher than the general one, with the expectation of having a pension that allows them to satisfy their needs and enjoy, together with their environment, their retirement years calmly and with quality of life. They consider that they are harmed by going from being a short time away from retiring to currently having a dozen or more years of pending work applied to them, all due to the automatic application of a norm that in their understanding is unconstitutional. They conclude that it is contrary to the right of the constitution and human rights to receive such a drastic modification as the one established in Transitory Provision VI of Law 9544, therefore being contrary to the right to work and to the retirement established in article 73 of the Political Constitution. The conditions offered to judicial employees at the beginning of their work have changed markedly.

3.-) Violation of international treaties (article 14 ICCPR and article 9 ICESCR) and ILO conventions (conventions 102, 118, 128 and 157): The petitioners indicate that, within social rights is the right to work and with it, to a retirement. This right corresponds to a social security right that has been ratified not only by different international instruments but also by national legal norms, and that already having certain conditions, these cannot be varied to the detriment of the human rights of those who hold the right or the consolidated legal situation. This transitory provision becomes a restrictive, non-progressive norm of their human rights, because the enormous number of years they have belonged to and contributed to the regime was not respected, a benefit that should have been safeguarded with a reasonable, fair transitory provision, supported by technical and objective criteria. It is also indicated that ILO Convention 102 contemplates and develops the basis of the right to retirement by providing in articles 25 and following that every member for whom the convention is in force shall guarantee to the protected persons the provision of old-age benefits. In the same sense, Convention 128, articles 19 and following. Article 118 of the ILO Convention refers in its article 7 that member states must endeavor to participate in a system for the maintenance of acquired rights and rights in course of acquisition. In the same sense, Convention 157, articles 6 and following. Thus, they conclude that the challenged norm is contrary to the regulations set forth, insofar as the questioned transitory provision was issued without protecting the rights in course of acquisition in a staggered and proportional manner.

In view of the foregoing, the examination of the previous arguments proceeds.

IV.- The standing rules in unconstitutionality actions and standing in this case.- Article 75 of the Constitutional Jurisdiction Law regulates the requirements that determine the admissibility of unconstitutionality actions, demanding the existence of a pending matter to be resolved in an administrative or judicial venue in which the unconstitutionality is invoked, a requirement that is not necessary in the cases provided for in the second and third paragraphs of that article, that is, when by the nature of the norm there is no individual or direct harm; when it is based on the defense of diffuse interests or those that concern the collectivity as a whole, or when it is filed by the Procurador General de la República, the Contralor General de la República, the Fiscal General de la República or the Defensor de los Habitantes, in these latter cases, within their respective spheres of competence. According to the first of the assumptions provided for by paragraph 2 of article 75 of the Constitutional Jurisdiction Law, the questioned norm must not be susceptible to concrete application, which would later allow the challenge of the application act and its consequent use as a base matter. Secondly, the possibility is provided to appear in defense of "diffuse interests," which are those whose ownership belongs to groups of people not formally organized, but united based on a specific social need, a physical characteristic, their ethnic origin, a specific personal or ideological orientation, the consumption of a certain product, etc. The interest, in these cases, is spread, diluted (diffuse) among an unidentified plurality of subjects. This Chamber has enumerated various rights that it has qualified as "diffuse," such as the environment, cultural heritage, the defense of the country's territorial integrity, the proper management of public spending, and the right to health, among others. On the other hand, the enumeration made by the Constitutional Chamber is not exhaustive. Finally, when paragraph 2 of article 75 of the Constitutional Jurisdiction Law speaks of interests "that concern the collectivity as a whole," it refers to the legal goods explained in the preceding lines, that is, those whose ownership rests in the very holders of sovereignty, in each of the inhabitants of the Republic. It is not, therefore, that any person can appear before the Constitutional Chamber in protection of any interests (popular action), but rather that any individual may act in defense of those goods that affect the entire national collectivity, without it being valid in this field either to attempt any exhaustive enumeration. Based on what was stated in the previous paragraph, and taking into account that the base matter is the amparo appeal processed under case file n°19-006391-0007-CO of the first petitioner, and of the consolidated action, the amparos n°22-013966-0007-CO (María Ester Brenes Villalobos), 22-013963-0007-CO (Carmen Violeta Cerdas Cisneros), 22-013961-0007-CO (Álvaro Jesús Valverde Rojas), 22-013981-0007-CO (Blanca Luz Jiménez Chaves), 22-013982-0007-CO (Hermes de los Ángeles Zamora Atencio), 22-013980-0007-CO (Mario Alberto Sáenz Rojas), 22-013973-0007-CO (Luis Rodolfo Chaves Cordero), 22-013978-0007-CO (Paula Esmeralda Guido Howell), 22-013969-0007-CO (Robert Camacho Villalobos), 22-013977-0007-CO (Cristia María Carballo Solano), 22-013971-0007-CO (Rolando Alberto Brenes Mora), 22-013970-0007-CO (María Auxiliadora Madrigal León), 22-013960-0007-CO (German Brenes Montero) and 22-013959-0007-CO (Juan Carlos Cubillo Miranda). This Chamber considers that the petitioners have sufficient standing to challenge the constitutionality of the impugned norm. Moreover, it is indeed a matter whose constitutionality it is appropriate to review through this avenue. Furthermore, the plaintiffs fulfilled the requirements stipulated in numerals 78 and 79 of the Law of procedure. In conclusion, the present action is admissible, and therefore the merits of the matter must be discussed immediately.

V.- In general: on the origin of the reform to the pension regime of the Judicial Branch, carried out through Law n°9544.- The Judicial Branch Retirement and Pension Fund belongs to one of the basic regimes. It was created by Law No. 34 of July 9, 1939. Later, said Fund became part of the Organic Law of the Judicial Branch No. 8 of November 29, 1937, constituting title XI: “On Judicial Retirements and Pensions.” In the following years (1959, 1961, 1962, 1963, 1964, 1971, 1983), several reforms were made to its articles, regarding age and years of service requirements for retirement, as well as the determination of beneficiaries. Subsequently, with Law No. 7333 of May 5, 1993, the Organic Law of the Judicial Branch No. 8 was comprehensively reformed, and the title corresponding to Judicial Retirements and Pensions became IX; later, Law 7605 of May 2, 1996, reformed several articles of this title.

In the years 2012 and 2013, as a result of revelations made by actuarial studies, the Judicial Branch initiated an internal process aimed at drafting a reform proposal. This concern, along with others referring to all pension regimes, led to the filing on April 5, 2016, of legislative file No. 19.922 “Bill for the Comprehensive Reform of the Various Pension Regimes and Related Regulations,” the promotion of that initiative occurred due to the interest of several legislative factions in “(…) carrying out a comprehensive reform of the entire pension system, with the objective of eliminating abusive provisions, rationalizing spending, giving stability to the various special pension regimes and to the Disability, Old Age and Death Regime of the Caja Costarricense de Seguro Social. The foregoing, based on the principles of solidarity, equality, redistributive justice, and efficiency, which are pillars within our social state of Law.” From the legislative file, it is observed that the initial bill was aimed at reforming all pension regimes; however, subsequently the Legislative Branch focused on processing separately the reform to the Judicial Branch Retirement and Pension Regime. Thus, legislative file n°19.922 proceeded to deal solely with the reform of the Judicial Branch Retirement and Pension Regime. The bill had 3 more substitute texts. The original is from April 5, 2016 (published in Supplement 110 of La Gaceta of Thursday, June 30, 2016), subsequently in Ordinary Session No. 37 of June 20, 2016, of the Legislative Plenary, a motion is approved via article 208 bis of the Regulations of the Legislative Assembly. That motion established the special procedure applied to this bill and in the same motion a Special Commission No. 20035 was created that would be in charge of processing the bill. The first substitute text is from June 30, 2016, ratified in the session of September 13, 2016, by the Special Commission (this text was not published, as recorded in the vote of this Chamber n°2018-005758, but it was not found that this was a substantial defect), and from which the name of the bill is formally changed to be called “Reform of Title IX of the Organic Law of the Judicial Branch, on Judicial Retirements and Pensions No. 7333 of May 5, 1993, and its reforms” (folios 1674 and 1717 of Volume 7 of the legislative file); substitute text motion that was approved with 7 deputies in favor and 1 against (folio 1731 volume 7). The second substitute text is from March 29, 2017 (published in Supplement No. 91 of Thursday, April 27, 2017, see folio 2126); the third substitute text was approved by the Special Commission in session n°23 of July 27, 2017 (Majority Affirmative Opinion was published in La Gaceta n°147, Supplement No. 189 of Friday, August 4, 2017, and, likewise, in La Gaceta n°148, Supplement No. 190 of Monday, August 7, 2017, the Minority Opinion was published). In all those previous versions, the Corte Plena issued a negative opinion on the three occasions it was consulted, through:

-1° (2016): Session of the Corte Plena No. 29-16 of September 26, 2016, article XVIII, communicated to the Legislative Assembly via official letter SP-288-16 of September 28, 2016, with the express indication that the bill being consulted affects the organization and functioning of the Judicial Branch (folio 284 Volume 2 of the legislative file).

-2° (2017, third substitute text): the Corte Plena in session No. 9-17 of April 24, 2017, article XXIX, heard the consultation posed to it and via official letter SP-118-17 of April 26, 2017, signed by the Secretaria General of the Corte Suprema de Justicia, agreed to make it known to the Special Legislative Commission that the Corte Plena issued a negative opinion on the bill consulted, while also deeming that it affects the organization and functioning of the Judicial Branch (folio 1829 Volume 8 of the legislative file).

-3° (2018, fourth substitute text): the Corte Plena in session 26-17 of August 7, 2017, article XXX, heard the consultation posed by the Special Commission of reference on the Majority Affirmative Opinion and, for the third time, issued a negative opinion regarding the bill and indicated that the bill processed under file No. 19.922 affects the organization, structure, and functioning of the Judicial Branch; a decision communicated to the Legislative Assembly via official letter SP-253-17 of August 10, 2017 (folio 2759 of Volume 12 of the legislative file).

Finally, after approving several substantive motions that modified it and approving reiteration motions, said bill received approval in the first debate, through extraordinary session n°14 of October 30, 2017, where it was approved with 31 votes, 7 votes against, and 8 abstentions. The publication occurs after approval in the first debate, in a document published in La Gaceta Digital No. 212, Supplement No. 268 of November 9, 2017 (see folio 4368 of Volume 18 of the legislative file). Then, in the second debate, through ordinary session n°163 of April 19, 2018, it was approved with 34 votes in favor.

Thus, Law n°9544, whose Transitory Provision VI is challenged here, entered into force on May 22, 2018. Said law implied several changes, one of them was changing the administration of the Judicial Branch Pension Fund, creating the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial (JA-FJPPJ), in addition to changes in retirement conditions (the retirement age was increased, the number of years of service was increased, the calculation of the pension amount was modified, the conditions for early retirement were modified).

Now, after being approved in the first debate, the bill was submitted to a facultative consultation of constitutionality (resolved by resolution n°2018-005758 at fifteen hours and forty minutes on April twelve, two thousand eighteen[1]), and upon becoming law, an unconstitutionality action was filed that addressed the total challenge of the law (resolved by resolution n°2021-11957 at nine hours and fifteen minutes on May twenty-fifth, two thousand twenty-one[2]). These two jurisprudential precedents were already referenced in the resolution that gave course to this action (resolution n°2022-008712 at nine hours and ten minutes on April twentieth, two thousand twenty-two[3]).

From all the foregoing, specifically regarding the chronology followed by Transitory Provision VI challenged here, from the original text to the one finally approved, the base bill n°19922 referred to a single transitory provision, XIII of the Organic Law of the Judicial Branch, where it was proposed:

“Transitory Provision XIII.- The reforms to this law shall not be applicable to those judicial employees who, at the time of the entry into force of these reforms, have twenty years or more of working in the Judicial Branch, who shall have the right to retire, according to the provisions previously established prior to this reform, provided they meet all the requirements established in the previous legal regime. Regarding the other persons who, upon the entry into force of this law, hold permanent positions in the Judicial Branch, they shall be granted the benefit of a differentiated calculation at the time they reach the requirements to qualify for retirement, in consideration of the time served and the contributions made to the Retirement Fund before this reform, applying the following parameters: 1.- For those who have between 0 and 10 years of service, the retirement pension shall be calculated based on the average of the last ninety-six salaries (8 years). 2.- For those who have more than 10 and up to 15 years of service, the retirement pension shall be calculated based on the average of the last seventy-two salaries (6 years).

3.- For those with more than 15 and up to less than 20 years of service, the retirement pension shall be calculated based on the average of the last forty-eight salaries (4 years).” Subsequently, in this Committee Opinion, dated July 27, 2017, the reform initially proposed to Transitory Provision XIII is set aside; and six transitory provisions are included, among them Transitory Provision VI, the wording of which was the following:

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

After the eighteen months have elapsed, judicial employees may avail themselves of a transitory ordinary retirement pension, which shall be governed by the following table:

After the eighteen months have elapsed, judicial employees may avail themselves of a transitory early retirement pension, which shall be governed by the following provisions:

For the purposes of early retirement without having the years of service, the required age from the table above shall be taken, according to the age or years of service at the effective date of the law.

The calculation of this retirement pension shall be made by multiplying the pension obtained according to the age or years of service corresponding to the effective date of the law from the table above, by the number of years served, and the product shall be divided by the required years of service according to the age or years of service corresponding to the effective date of the law; the result shall be the amount of the early retirement pension.

For the purposes of early retirement without having the age, the required years of service from the table above shall be taken, according to the age or years of service at the effective date of the law.

For the purposes of the minimum age, it shall be governed by the following table:

The calculation of this retirement pension shall be made by multiplying the pension obtained according to the age or years of service corresponding to the effective date of the law from the table before the previous one, by the age; and the product shall be divided by the required age according to the age or years of service corresponding to the effective date of the law; the result shall be the amount of the early retirement pension.

These pensions shall be subject to the cap provided for in Article 225 of the law.” Regarding said text, the Corte Plena indicates through official letter SP-118-17 the agreement adopted in session No. 09-17 of April 24, 2017, that: “the period of eighteen months after the publication of the Law has no technical basis.” Subsequently, through the approval of substantive motions, the new text approved in the First Debate, and later approved in the Second Debate, Transitory Provision VI states the following:

“TRANSITORY PROVISION VI- Judicial employees who meet the requirements to acquire the right to a pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within eighteen months following the promulgation of this law, may retire under the provisions established in said text.” VI.- In general: On the right to a pension and retirement as fundamental rights, and possible limitations.- This action of unconstitutionality, like previous ones, has in the background economic, social, and cultural rights, very concrete human rights, which constitute issues that must be carefully calibrated by this Constitutional Court, especially when dealing with the rights that accompany older adults at very important moments in their lives. Precisely, when the doctrine of the State's welfare rights (derechos prestacionales del Estado) begins to gain strength, what was already being promoted since 1930 by several countries is often cited, seeking greater protection for workers and a greater role for the State in guaranteeing certain social rights, such as social security, health, and housing. This Chamber has had the opportunity to examine pension issues on other occasions. Based on what it has stated in previous resolutions (No. 2018-5758 and 2021-11957), the following COROLLARIES are summarized:

-Articles 50, 56, and 74 of the Political Constitution configure the model of a social and democratic State governed by the Rule of Law. As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law "entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations." Consequently and based on the Social State of Law, our Political Constitution contemplates a set of welfare rights (derechos prestacionales) related to the protection of workers, as is the case with the right to retirement. (see judgments No. 2004-9255 at 4:03 p.m. on August 25, 2004, No. 2005-13205 at 3:13 p.m. on September 27, 2005, No. 2018-19030 of November 14, 2020).

-The model of the Social State of Law and the concept of social security adopted by our Political Constitution include the right in favor of workers to obtain a retirement pension after fulfilling certain normatively established conditions. This is one of the forms of expression of the fundamental right to social security enshrined in our constitutional regulations, to which are added health insurance, the different types of contributory retirement pensions, as well as non-contributory ones, among others.

-The retirement pension constitutes the economic benefit obtained after working and contributing to a specific regime for a determined period, and whose purpose is to guarantee a decent life for the person after their stage as a worker ends.

-The right to a pension must be classified as a fundamental right, thus the Chamber declares that there does exist a constitutional and fundamental right to retirement in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution. Furthermore, from Articles 25, 28, 29, and 30 of ILO Convention No. 102, according to which:

" Article 25 Every Member for which this part of the Convention is in force shall guarantee to the persons protected the provision of old-age benefits, in accordance with the following Articles of this part" " Article 28 The benefit shall consist of a periodic payment, calculated in the following manner... " " Article 29 1. The benefit mentioned in Article 28 shall be guaranteed, in the contingency covered, at least:

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

"2. When the granting of the benefit mentioned in paragraph 1 is conditioned upon the completion of a minimum period of contribution or employment, a reduced benefit shall be guaranteed at least:

"a) To the persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment... " " Article 30 "The benefits mentioned in Articles 28 and 29 shall be granted throughout the entire contingency" -Other international texts that recognize the right to retirement are, for example: Art. 16 of the American Declaration of the Rights and Duties of Man; Articles 22 and 25 of the Universal Declaration of Human Rights; Art. 31 of the International American Charter of Social Guarantees; Convention concerning Equality of Treatment in Social Security, No. 118 of the ILO, or, in general, the Right to Social Security, within which retirement is universally understood to be included, for example, Art. 11 of the American Declaration of the Rights and Duties of Man; and 9 of the International Covenant on Economic, Social and Cultural Rights.

-Membership in a specific pension or retirement regime is acquired from the moment one begins contributing to said regime, but not the concrete right to retirement, which is acquired when the interested party fulfills all the prerequisites established by law.

-Like any other fundamental right, the right to a pension is not unrestricted, as it can be subjected to certain limitations, provided that these are established by a formal law, are reasonable, and do not prevent its exercise (or affect its essential content). The right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are also reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than the expression of a well-known principle of Human Rights Law, which can be called proportionality and which is generally included as a sine qua non condition for the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them (see resolutions No. 2018-19030, No. 2379-96, No. 1147-90).

-The right to retirement can be subjected to limitations, just like any other fundamental right. The foregoing entails that a person does not have a right to retire under specific conditions, as these can be varied when necessary to guarantee the existence of a specific pension and retirement regime, because if this were not the case, conditions could be created that make the system financially unsustainable, which, ultimately, would lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the lack of funds that prevent the payment of the retirement amount to the interested party. Clearly, such limitations must be established by a formal law, must be reasonable, and cannot prevent its exercise (or affect its essential content).

-Furthermore, if modifications to pension conditions imply a regression, this Chamber has indicated that such a measure requires a prior technical study. Thus, it was established: "in the event that an administration has the need to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects that these may have on the rights of those affected and the regime, as well as confirming that there are no less burdensome measures that could have been taken…" (see resolution No. 2021-11957).

Having established the foregoing, we now proceed to review the specific admitted allegations to determine if the state authorities have exceeded the above parameters, all according to the themes and the specific arguments offered by the various claimants.

VII.- On the examination of the ALLEGATIONS of unconstitutionality.- As indicated, this action and the accumulated one have been admitted for the examination of Transitory Provision VI of the Law Reforming the Retirement and Pension Regime of the Judicial Branch, No. 9544, for the alleged violation of Articles 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189, and 190 of the Political Constitution, Conventions 102, 118, 128, and 157 of the ILO, and the principles of democracy, solidarity, legal certainty, good faith, legitimate expectations (confianza legítima), transparency, relative inviolability of patrimony (intangibilidad relativa del patrimonio), non-confiscation, and respect for acquired rights and consolidated legal situations, Articles 14 of the International Covenant on Civil and Political Rights and 9 of the International Covenant on Economic, Social and Cultural Rights. Additionally, regarding the violation of the principle of progressivity, the right to a decent, proportional, and reasonable pension, and the principle of equality, this if the necessary evidence exists. Arguments which were all synthesized supra. Now, as the allegation of unconstitutionality regarding the lack of technical criteria in the face of regressive measures for the right to a pension and retirement is a procedural allegation, this shall be examined first.

VIII.- ON THE MERITS: ON THE CONSTITUTIONALITY OF TRANSITORY PROVISION VI OF THE LAW REFORMING THE RETIREMENT AND PENSION REGIME OF THE JUDICIAL BRANCH, LAW NO. 9544. DRAFTED BY MAGISTRATE CASTILLO VÍQUEZ.

The claimants indicate that there is no legal basis that supports the eighteen-month period granted as a Transitory Provision for the application of the new reform, which they consider irrational and arbitrary. They even indicate that the former president of the Junta Administradora del Fondo, Mr. Carlos Montero, during an appearance before the Corte Plena of the Judicial Branch (session No. 08-2021, of February 22, 2021, Article XVIII) stated that the Fund was in a position to assume the retirements under the conditions prior to the reform for persons who, at the time of the entry into force of Transitory Provision VI, had 20 years or more of service in the Judicial Branch. Furthermore, in cases where a fundamental right is restricted or limited -as is the case here-, the burden of proof does not lie with the party harmed by the restriction or limitation, but with the Administration, in this case, the legislating State, which lacked technical criteria in this regard. The Procuraduría General de la República (PGR) indicates that, if the legislator deems it appropriate and decides to regulate it through transitory law, the 18-month period is sufficient for the modification of the specific conditions, which do not affect the administered party who meets the requirements within that period (see resolution of the Constitutional Chamber No. 1992-846 at 1:30 p.m. on March 27, 1992). It considers that, although in contributory pension regimes the contribution creates a right of membership (derecho de pertenencia), this does not make the rules of the system unmodifiable (see resolution of the Constitutional Chamber No. 2018-19030 and No. 2021-11957). Moreover, the mere existence of a transitory provision leads to the conclusion that the changes to the regime were not untimely, sudden, nor did they drastically vary the retirement conditions of the claimants; therefore, they do not share the reasons for unconstitutionality alleged in this action, and thus suggest declaring the action without merit. For its part, the President of the Asamblea Legislativa states that the Assembly, during the processing and formulation of this law, always respected the principles of reasonableness, rationality, proportionality, and made its decisions based on a broad discussion, with technical reports and the participation of the involved sectors. Specifically, regarding the transitory provision, it is reported that the 18-month period is reasonable since it is neither an excessively short nor excessively long period; in addition, the setting of this period responds to the attribution of the Asamblea Legislativa in the exercise of its function to enact laws in a formal and material sense, where it enjoys broad freedom of configuration. In the opinion of the Corte Suprema de Justicia, on the three occasions in which the Court was consulted, a negative opinion was issued and it opposed the consulted bill, because it impacts the organization and functioning of the Judicial Branch. Specifically regarding the 18-month period of the challenged transitory provision, it considered that there is no record in the agreements of the Corte Plena or the Consejo Superior that the Executive or Legislative Branch carried out the technical studies to define that range, which could be contradictory to what was indicated by the Constitutional Chamber in repeated decisions (judgment No. 2017-11714), which pointed out as a fundamental requirement to be able to make variations in retirement and pension regimes that these must have the technical criteria on the impact of those legal modifications, otherwise, numeral 73 of our Political Constitution could be violated. It adds, furthermore, that the institution's personnel have suffered the application of a very severe transitory provision never before applied to any group in pension matters, which has caused a disincentive to continue working in the institution. This has resulted in a constant brain drain, as several resignations have been received from judicial employees who preferred to continue their careers in other fields. Likewise, judicial employees have required medical intervention given the impact of this reform and its transitory provision on their lives and the lives of their family members. They believe that their right should have been safeguarded with a reasonable, fair transitory provision, supported by technical and objective criteria.

It is the opinion of the majority of this Chamber that the filed action must be declared without merit, based on the reasons that will be developed below. Now, for the proper examination and resolution of this action, a series of introductory considerations (section A) shall first be set forth, which must necessarily be taken into account for the appropriate approach to the issues raised in this constitutional review process. Then, in section B, the 18-month period shall be properly analyzed in light of the jurisprudence of the Constitutional Chamber and the technical report prepared by the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica (dated July 4, 2017, called Product 6 "Compilation and final report: conclusions and recommendations"). An unavoidable reference will also be made to what the situation of the Judicial Branch's Pension and Retirement Regime was before its reform through Law No. 9544, what its current financial situation is, and what the consequences of accepting the present action would be (sections C, D, and E), as these are aspects that must imperatively be weighed for the proper resolution of this action. Finally, in the following sections, the specific reproaches formulated by the claimants shall be resolved.

• A)INTRODUCTION.

For the majority of the Tribunal, the action of the Asamblea Legislativa is based on its jurisprudence and on a technical study, so its performance has been neither arbitrary nor lacking in sense. Quite the contrary, it has contributed to giving sustainability to a special regime, as will be explained further on.

There is a worldwide phenomenon that is impacting retirement and pension regimes. This is the aging of the population, which has significant effects, because, on the one hand, older adults are more numerous and live longer, and, on the other, the rate of the economically active population is not growing at the pace it was in the past. In this regard, in the United Nations report -World Social Report 2023- on the subject, we find the following data:

“In 2021, 761 million persons worldwide were aged 65 years or older, a figure that will increase to 1.6 billion by 2050. The number of persons aged 80 years or older is growing even faster.

People are living longer thanks to improvements in health and medical therapies, greater access to education, and reductions in fertility.

Worldwide, a child born in 2021 can expect to live, on average, to age 71, with women living longer than men. This is almost 25 years more than a baby born in 1950.

Northern Africa, Western Asia, and sub-Saharan Africa are on track to experience the fastest growth in the number of older persons in the next 30 years. Currently, Europe and Northern America together have the highest share of this population.” There is no doubt that this global phenomenon reflects a general improvement in people's health. However, it also entails a series of additional challenges.

This fact has a significant impact on retirement and pension regimes, especially pay-as-you-go (reparto) systems, since there are increasingly fewer contributing workers and more retirees and pensioners requiring the respective payments.

In the report referenced above, the following is established:

“One of the main challenges is maintaining the fiscal sustainability of public pension systems, while guaranteeing income security for all older persons, including informal sector workers.” The fact of the matter is that we are experiencing an accelerated process of population aging; the population pyramid has been inverted and, consequently, it has become necessary to introduce significant changes into retirement and pension regimes in order to guarantee their sustainability and equity. When there are few retirees and pensioners and many active workers, the system can support generous retirement and pension benefits in the short and even the medium term; however, it is not possible to sustain this situation when the inverse situation occurs. It is for this reason that, throughout the world, we are witnessing the phenomenon of cuts to retirement and pension benefits – such as: increasing contributions, raising the retirement age, reducing the calculation of the retirement or pension benefit, etc. This situation of change in retirement and pension regimes is not a whim of the legislator or of those who govern or administer a regime; it is a necessity imposed by reality, in which actuarial studies prove that the adjustments are necessary, fair, and logical, if we wish to guarantee the fundamental right to retirement or a pension for current and future generations. Acting to the contrary, or doing nothing, means condemning thousands of older adults in the not-too-distant future to live in indigence; hence, a sense of responsibility, timeliness, and coherence compels the legislator and the public administration to act in a timely manner to guarantee the financial sustainability of retirement and pension regimes.

In this matter, we must not lose sight of the fact that the satisfaction of general interests obligates the legislator and administrators to always have those interests, and not particular or group interests, as their guiding principle. In retirement and pension regimes, the financial sustainability of the regime represents the general interest, against which it is not possible to claim the satisfaction of particular interests when this entails affecting the former. Whoever does not have this maxim clear acts against elementary rules of justice, logic, science and technique, and timeliness, which is not admissible in a social and democratic state governed by the rule of law. The satisfaction of the interests of the greatest number must always prevail over individual or group interests.

A third issue in this general discussion concerns the subject of legislative discretion. It has been a repeated thesis of this Tribunal that the legislator enjoys a broad margin of discretion when exercising the power to legislate. One of the reasons for this position – not the only one – is that the legislator is endowed with democratic legitimacy and, therefore, is called upon to choose among several possible alternatives the content of the law in order to provide an effective solution to a problem or create an institution that will bring well-being to the population. That said, the fact that this Tribunal has held that in the matter of retirement and pensions the legislator requires technical studies does not entail absolute subordination to them, since the legislator may well, adopting as a reference the data yielded by those studies, provide solutions that fall within what is reasonable. In this vein, it is not possible to equate the legislative act with the administrative act, where it is clear that the public administration’s margin of discretion is much narrower. Legislative discretion implies that the legislator has a broad margin to define the content and the timing of the law. The legislative act expresses or concretizes the sovereignty of Parliament; in this direction, one cannot lose sight of what Article 105 of the Constitution establishes, when it states that the power to legislate resides in the people, who delegate it to the Legislative Assembly through suffrage. Such power is not subject to limitations by agreement or contract, directly or indirectly, and the Sovereign may even exercise it through a referendum, excluding certain matters. The foregoing means that the Legislative Assembly enjoys independence when exercising the power to legislate, which means that the Law of the Constitution (values, principles, and norms) grants it broad discretion to determine the content and the timing of the laws; this is a margin of appreciation, what German doctrine has called “the legislator’s freedom of configuration” (gesetzgeberischen Freiheit). The legislator is thus called upon, in the exercise of the power to legislate, to satisfy public interests, and to do so, can innovate and update the Law, as well as provide timely and adequate solutions to social problems. However, this discretion that the legislator enjoys is not unlimited. In the first place, when the legislator legislates, they must observe the Law of the Constitution and respect the fundamental rights found in that law and in the international human rights instruments in force in Costa Rica. Secondly, they must observe the substantial forms and procedures present in the legislative iter. In the third place, the parliamentary act, no matter how discretionary it may be, must be clothed in reasonableness and proportionality, such that the Law of the Constitution and the principle of the prohibition of arbitrariness make it impossible for the legislator to issue irrational, arbitrary, or illogical acts. That said, one must not lose sight of the fact that among several reasonable options, the Law of the Constitution permits the legislator to choose one of them; not necessarily the one considered best or most optimal, since determining this extreme is a matter that cannot be settled, unless one substitutes the legislator, which would imply violating their independence or, worse yet, usurping a power constitutionally assigned to them, which is, by all accounts, not consistent with the democratic system.

Finally, one must bear in mind that the fundamental right to retirement or a pension is the right to receive it when the requirements established by the legal system are met; therefore, the right to receive specific benefits does not form part of its essential content, as these benefits are conditioned upon the solvency of the respective regime.

• B)REGARDING THE 18-MONTH PERIOD PROVIDED FOR IN TRANSITORY PROVISION VI OF LAW NO. 9544.

1. REGARDING THE 18 MONTHS IN THE JURISPRUDENCE OF THE CONSTITUTIONAL CHAMBER.

The first thing that must be highlighted is that the challenged normative provision is entirely compatible or consistent with the position that this Chamber has been holding, repeatedly and consistently, in the sense that an 18-month period is reasonably sufficient to protect those persons who have not yet met the requirements to acquire the right to a pension or retirement – because the effective or concrete right to enjoy it has not yet been consolidated – but who would be in a situation close to or near consolidating such right, in the face of eventual normative modifications to the requirements or conditions for accessing the respective pension or retirement, due to changes in the objective law regulating the regime in question. The foregoing, taking into consideration the impact that such modification could have for those persons who lacked only a few months to acquire the concrete right to the pension or retirement.

On this subject, reference can be made – in the first place – to Ruling No. 846-92 of 1:30 p.m. on March 27, 1992, in which this Chamber heard an optional legislative consultation on constitutionality regarding the “Bill Creating the General Pension Regime Charged to the National Budget, Other Special Regimes, and Reform of Law Number 7092 of April 21, 1988, and its Reforms, the Income Tax Law” (Legislative File No. 11168). An occasion on which it was resolved:

“C) They likewise consult, in the event it is considered that before meeting the age and contribution period requirements, one only has an expectation of a right and not a vested right, what fate awaits a provision that legislates this basis, this in contrast to ILO Convention No. 102 which recognizes rights from another perspective.

In this sense, the Chamber considers that it lacks interest, given that the bill – in its transitory articles recognizes the preservation of the retirement situation of the employees who had met the requirements to enjoy the benefit, and furthermore extends it to those who belong or have belonged to the regimes excluded from acquiring it, within a period of eighteen months, which seems reasonably sufficient to guarantee any eventual rights acquired in good faith.” Subsequently, in Ruling No. 914-92 of 2:40 p.m. on April 8, 1992, this Tribunal revisited the issue and justified its position in the following terms:

“(...) In Judgment No. 846-92 of one thirty in the afternoon on March twenty-seventh of the current year, this Chamber, hearing a legislative consultation on constitutionality, considered as reasonable and sufficient to guarantee any eventual rights acquired in good faith, the norm contained in the Bill Creating the General Pension Regime Charged to the National Budget, contained in Legislative File No. 11168, insofar as it sets the prior period for preserving the retirement legal situation created in a given pension system at eighteen months. In the present case, the petitioner seeks to have that right of preservation recognized for a period exceeding two years. The Chamber, in ruling as it did in the cited consultation, took into consideration the need to protect imminent rights of the persons covered by the various pension regimes, but recognized that mere membership does not create a consolidated legal situation. This particular case does not present the situation already indicated by the Chamber, since the petitioner has sufficient time remaining to take the necessary precautions and adapt their expectations to the new situation; therefore, their amparo is not appropriate and must be declared as such. The claimant – as they state in the petition itself – had not met all the requirements for their retirement to be granted on the date they filed their request, but would have met them in nineteen ninety-three were it not for the modification that the Disability, Old Age, and Death regime underwent. At the time of making the request, they had nothing more than an expectation of acquiring it and not a consolidated right, as they claim, such that in those terms, one cannot speak of a violation of the provisions of Article 34 of the Constitution. On the other hand, the decision taken by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) when modifying the regime was based on actuarial studies and technical recommendations, such that it does not obey an irrational whim or any arbitrariness; on the contrary, according to what the representative of the respondent reports, the decision was taken for the purpose of saving the regime in order to cover all pensioners in the future. This being the case, as no constitutional violation is found in the present case, as already stated, the action must be declared without merit.” (the highlighting does not correspond to the original).

Along the same lines, Ruling No. 5476-93 of 6:03 p.m. on October 27, 1993, can be cited, in which it is reiterated:

“(...) Before discussing whether or not the petitioner met the requirements established by the regulations governing the Communications Regime for the recognition or effective enjoyment of the right to the retirement benefit, it is necessary to reiterate two fundamental concepts indicated by the Chamber in Ruling No. 1147-90 of 4:00 p.m. on September 21, 1990. The first consists of this Tribunal’s declaration of retirement as a constitutional and fundamental right of every worker and that, as such, it must be recognized for every human being under conditions of equality and without any discrimination. The second is a concept that derives from the former and which is specifically mentioned, both in Considering Clause XI of the cited Ruling and in the report sent to this Chamber by the Minister of the Interior (see folios 16 verso and 17 of the action), when determining that the right to retirement is acquired from the moment one enters the respective retirement regime, at least as a general right of membership in it, and is acquired as a right to the actual provision of the benefit from the instant the interested party finds themselves in the factual conditions provided for receiving it, without it being necessary that they have previously claimed it or obtained its recognition. In accordance with the foregoing, it is necessary to point out that the claimant acquired the right to belong to the Communications Regime and the right to retire someday under that regime, if they so desire, upon mere entry; which occurred through Article 108 of Law No. 7015, which included the workers of the Central Administration of the Ministry of the Interior within the cited regime. Within this line of thought, it is important to indicate that the specific conditions of the regime, among which are counted the age and years of service requirements, can indeed vary in the future and may affect beneficiaries who have more than 18 months remaining to meet the requirements of the regulations being modified...”.

Later, it was added that:

“The 18-month period, during which the modification of the specific conditions of the regime cannot affect the governed party who projected meeting the requirements to retire during that period, has been reiterated by the Chamber in several of its pronouncements, for the purpose of protecting the beneficiary of a given pension regime from sudden changes in the specific requirements necessary to obtain the concrete recognition of the retirement benefit; changes that can aggravate the conditions for obtaining the pension, when the interested party lacked only a few months to acquire the concrete right to the benefit, based on the modified norm.” For its part, in Ruling No. 06491-98 of 9:45 a.m. on September 10, 1998, the position of this Chamber was systematized as follows:

“V.- A) REGARDING THE MODIFICATION OF THE AGE AND TIME OF SERVICE FOR RETIRING: When addressing the issue of vested rights in pension matters, the Chamber has insisted in previous pronouncements on a core difference between the right of membership in the regime and the concrete right to enjoy the pension. Regarding these two nuances of the vested right to retirement, the Chamber stated:

“In this sense, it is necessary to observe that this right ceases to be a mere expectation and is acquired from the moment one enters the retirement regime, at least as a general right of membership in it, and from the instant the beneficiary finds themselves in the factual conditions provided for receiving the benefit, as a right to the current provision, without it being necessary that they have claimed it, much less declared the recognition or begun to receive it... in the same way that the right to inheritance is acquired at the moment of the decedent’s death, not at the opening of the probate proceeding, much less at the adjudication of the inheritance right or the delivery of the assets to the heir.” (Judgment No. 1147-90 of 4:00 p.m. on September 21, 1990).

VI.- In the first of these cases, the right of membership in a retirement regime has a greater degree of abstraction and consists, in essence, of the right that the pension regime proper to the institution in which one works remains in place, as well as its defining elements or conditions. The right to belong to the regime means not being excluded, and that its general parameters be maintained, such as that the contribution be tripartite — a condition that, by the way, in similar proportions is itself a constitutional right, without prejudice that the state contribution be equal in all regimes —. By its characteristics, this right is acquired by mere entry into it; however, as already stated, its consequences are much more limited than those that will be set forth for the case of the concrete right to the pension.

VII.- The concrete right to enjoy retirement is that which has traditionally been used as an example to explain the concept of a vested right. In those same terms, it was always considered that it arose at the moment the worker met the requirements demanded by the law in force at that time to access the retirement benefit. A consequence of this reasoning and of the difference in degree that has been made is that indicated in Resolution No. 6124-93 of 2:30 p.m. on November 23, 1993:

“Regarding the effective enjoyment thereof, it is a right that cannot be limited, conditioned, or suppressed in an irrational manner in any way, when the right as such has been acquired, thus constituting an absolute right of enjoyment. However, the same does not hold true for the expectation of workers who contribute to a given regime, so that it is only upon meeting all the legal prerequisites – age, years of paying contributions, amount, etc. – that said right is obtained.

Thus, membership in a given pension or retirement regime is acquired from the moment contributions to said regime begin, but the concrete right to retirement is acquired when the interested party meets all the prerequisites established by law, and not before, as the petitioners claim, when considering that the modification of the conditions for obtaining this right is unconstitutional. They hold a right to the membership of a pension regime, which in this case is the Hacienda regime, given that the challenged regulation – the Framework Law on Pensions, No. 7302 – did was unify the different existing regimes and create a “common framework”, without altering in the slightest the regime of pension membership of public employees. Indeed, it is recognized that such regimes are regulated by law, which can be modified or repealed by virtue of another law, and to claim that the prerequisites can never be modified would imply creating a limitation on each existing pension and retirement regime, which has constitutional rank regarding its creation in general, but not regarding the specific specifications. (In this same sense, see Pronouncements No. 1341-93 of 10:30 a.m. on March 29, 1993, and 3063-95 of 3:30 p.m. on June 13, 1995).

VIII.- This concept has been subsequently broadened following legislative decisions and decisions of this Tribunal, in which a prudential period of time – eighteen months – was recognized prior to meeting the requirements for acquiring the right, since it concerns a person very close to the retirement date, who not only has an expectation, but also adopts irreversible measures to prepare for their change of status.” (the highlighting does not correspond to the original) A position confirmed by this Tribunal in multiple rulings, namely: No. 1633-93 of 2:33 p.m. on April 13, 1993; No. 2765-93 of 3:09 p.m. on June 15, 1993; No. 3933-93 of 3:21 p.m. on August 12, 1993; No. 0846-94 of 5:18 p.m. on February 9, 1994; No. 1060-94 of 3:42 p.m. on February 22, 1994; No. 1805-94 of 11:03 a.m. on April 15, 1994; No. 1879-94 of 5:30 p.m. on April 20, 1994; No. 0337-96 of 9:51 a.m. on January 19, 1996; No. 4682-96 of 11:15 a.m. on September 6, 1996; No. 2617-97 of 3:54 p.m. on May 14, 1997; No. 6097-98 of 3:33 p.m. on August 26, 1998; No. 1999-04808 of 2:30 p.m. on June 22, 1999; No. 2000-00331 of 5:54 p.m. on January 11, 2000; No. 2014-003551 of 9:05 a.m. on March 14, 2014; No. 2014-12606 of 9:05 a.m. on August 1, 2014; and No. 2015-1214 of 2:45 p.m. on January 27, 2015.

A criterion that was reiterated once again by the majority of this Tribunal, precisely when hearing the norm that is challenged in the present action (Transitory Provision VI of Law No. 9544). It did so in Ruling No. 2018-5758 of 3:40 p.m. on April 12, 2018, when hearing the optional legislative consultation on constitutionality that was processed regarding the then Bill No. 19,222, reforming the Retirement and Pension Regime of the Judicial Branch (File No. 17-017148-0007-CO), as well as in Judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021, issued in the Action of Unconstitutionality No. 18-007819-0007-CO. In this latter case, it was resolved:

“LXVII.- Drafted by Judge Castillo Víquez. Regarding the claim against Transitory Provision VI of Law No. 9544. As explained supra, the other transitory norm of Law No. 9544 that the petitioners challenge is Transitory Article VI, which establishes:

“TRANSITORY PROVISION VI.- Judicial personnel who meet the requirements to acquire the right to a pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions established in the aforementioned text.” The petitioners argue that it is a disproportionate and arbitrary provision, and that the 18 months established are an unreasonable period that the Chamber once established and that has now been adopted by the legislator without a technical study justifying it. They believe that consolidated rights and vested rights are harmed, and they maintain that legal certainty is violated and trust in the system is broken; that it harms people’s expectations and the life plans of those who were close to retiring and harms solidarity, which is a principle related to social security. They further believe that it contradicts Article 224 of the same law because the latter recognizes a vested right for personnel with 20 or more years of service in the Judicial Branch, whereas this transitory provision does not recognize that period for workers with more than 20 years of service and instead grants it solely to those who have 28 years and 6 months at the time the law enters into force. The Solicitor General’s Office indicated that the right to enjoy retirement is acquired when all the requirements provided for in the regulations are met and before that, there is only a mere expectation of a right that is not comparable to a consolidated legal situation. It is affirmed that the Chamber has said that an 18-month period is sufficient so that the modification of the conditions does not affect the governed party who meets the requirements within that period, and the so-called right of membership is nothing more than a mere expectation that is exclusively for those who happen to meet the requirements within the 18 months. Transitory Provision VI implies that the changes were not untimely or sudden. The Legislative Assembly indicates that, concerning the expectation of rights relating to pension or retirement regimes, one must abide by the legislation in force and constitutional precedents, understanding that the modification of a specific regime is feasible and does not, in itself, imply a constitutional violation. The period granted meets the parameters required to guarantee the eventual rights of persons who meet the requirements set forth in the regulations and thus prevents a sudden modification to the norm. The Supreme Court of Justice stated that in its responses to the Assembly, it always expressed the need for gradualism in the implementation of the regulatory change in order to respect the legitimate expectations of persons with more years of service.

LXVIII.- Judge Castillo Víquez continues drafting. The question of the possible unconstitutionality of the challenged Transitory Provision VI of Law 9544 was also analyzed as part of the response given to the Legislative Assembly on the occasion of the consultation made regarding the then Bill No. 19922 reforming the Retirement and Pension Regime of the Judicial Branch. In Judgment No. 2018-5758, so often cited, the Chamber said:

“XVII.- Regarding the changes in the requirements for obtaining the pension right. The consultants consider that Article 224 of the bill harms the principles of proportionality and reasonableness because the retirement age and the number of years the official must work are increased, but the percentage of money they will receive as a pension relative to the salary they earned is reduced. Likewise, they question Transitory Provision VI of the bill, which provides that only those persons who are within 18 months of meeting the requirements to acquire the pension right may do so under the provisions established by Law No. 7333. The questioned norms provide the following:” Article 224- Judicial personnel with twenty or more years of service in the Judicial Branch may opt for an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned during their working life, adjusted according to the consumer price index (CPI), defined by the National Institute of Statistics and Censuses (INEC), provided they have reached sixty-five years of age and have worked at least thirty-five years.

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

Before undertaking the analysis of the substance of the allegation raised, one must bear in mind that the right to retirement constitutes the economic benefit obtained after working and contributing to a given regime for an established period, the purpose of which is to guarantee a dignified life for the person after they withdraw from the labor market for reasons of age or disability. Said right, which derives from Constitutional Article 73, is obtained from the moment the person meets all the requirements established by the legislation in force, because at that moment the factual situation that the norm provides for granting the benefit occurs. It is worth noting that the right to retirement is not unrestricted, as it may be subjected to certain limitations, provided these are established through a formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement when it can be proven that certain situations exist that put the sustainability of a regime at risk and, therefore, threaten the nature of the system as such. On this point, in Ruling No. 2379-96 of 11:06 a.m. on May 17, 1996, the following was established: [...]

On the other hand, the Chamber has also held that there is a substantial difference between the right of membership in a given pension regime and the concrete right to enjoy a pension. On this point, in Ruling No. 98-6491 of 9:45 a.m. on September 10, 1998, the following was provided on the matter:

• A)REGARDING THE MODIFICATION OF THE AGE AND TIME OF SERVICE FOR RETIRING: When addressing the issue of vested rights in pension matters, the Chamber has insisted in previous pronouncements on a core difference between the right of membership in the regime and the concrete right to enjoy the pension. Regarding these two nuances of the vested right to retirement, the Chamber stated:

“In this sense, it is necessary to observe that this right ceases to be a mere expectation and is acquired from the moment one enters the retirement regime, at least as a general right of membership in it, and from the instant the beneficiary finds themselves in the factual conditions provided for receiving the benefit, as a right to the current provision, without it being necessary that they have claimed it, much less declared the recognition or begun to receive it... in the same way that the right to inheritance is acquired at the moment of the decedent’s death, not at the opening of the probate proceeding, much less at the adjudication of the inheritance right or the delivery of the assets to the heir.” (Judgment No. 1147-90 of 4:00 p.m. on September 21, 1990).

I.- In the first of these cases, the right of membership in a retirement regime has a greater degree of abstraction and consists, in essence, of the right that the pension regime proper to the institution in which one works remains in place, as well as its defining elements or conditions.

The right to belong to the regime means the right not to be excluded, the right for its general parameters to be maintained, such as the requirement that the contribution be tripartite—a condition which, incidentally, in similar proportions is itself a constitutional right, without prejudice to the state contribution being equal across all regimes. Due to its characteristics, this right is acquired upon mere entry into the regime; however, as already stated, its consequences are far more restricted than those that will be set forth regarding the case of the concrete right to a pension.

II.The concrete right to enjoy retirement (jubilación) is that which has traditionally been used as an example to explain the concept of an acquired right. In those same terms, it was always considered to arise at the moment the worker met the requirements demanded by the law in force at that time to access the retirement benefit. A consequence of this reasoning and of the difference in degree that has been made is that indicated in Resolution No. 6124-93 of 2:30 p.m. on November 23, 1993:

"As for the effective enjoyment of the same, it is a right that cannot be limited, conditioned, or suppressed in an irrational manner in any way, once the right as such has been acquired, thus becoming an absolute right of enjoyment. However, the same is not true for the expectation of workers who contribute to a given regime, such that it is only upon fulfilling all the legal requirements—age, years of paying contributions, amount, etc.—that said right is obtained." Thus, belonging to a specific pension or retirement regime is acquired from the moment one begins contributing to that regime, but the concrete right to retirement is acquired when the interested party fulfills all the requirements established by law, and not before, as the petitioners claim when arguing that the modification of the conditions for obtaining this right is unconstitutional. They hold a right to belong to a pension regime, which in this case is the Hacienda regime, since what the challenged regulation—the Framework Pension Law (Ley Marco de Pensiones), No. 7302—did was to unify the different existing regimes and create a "common framework," without altering in the slightest the belonging regime of the public employees' pension. In effect, it is recognized that such regimes are regulated by law, which can be modified or repealed by virtue of another law, and to claim that the requirements can never be modified would imply creating a limitation on each existing pension and retirement regime, which has constitutional standing as to its creation in general, but not as to its specific details. (In this same vein, see pronouncements No. 1341-93, of 10:30 a.m. on March 29, 1993, and 3063-95 of 3:30 p.m. on June 13, 1995).

Now then, from the foregoing, it clearly follows that the right to retirement can be subject to limitations, just like any other fundamental right. The foregoing implies that a person does not have a right to retire under specific conditions, as these may be varied when necessary to guarantee the existence of a specific pension and retirement regime; otherwise, conditions could be created that make the system financially unsustainable, which would ultimately lead to the right to retirement being severely affected, or its exercise being entirely impossible, given the lack of funds preventing the payment to the interested party of their retirement amount. Given this scenario, this Chamber considers that the challenged norms are not unconstitutional, insofar as their purpose is, precisely, to guarantee the permanence of the Judicial Branch Pension and Retirement Regime (Régimen de Pensiones y Jubilaciones del Poder Judicial), for which parameters and requirements were established based on the opinion of experts received by the Special Commission that reviewed legislative file No. 19,922, as well as technical studies that confirmed the existence of a problem that could affect the sustainability of said Regime, and for which they issued a series of recommendations. In that sense, upon verifying that the variation of requirements ordered by numeral 224 and the deadline set by Transitory Provision VI of the bill have the ultimate goal of guaranteeing the retirement right of judicial employees, this Chamber dismisses the alleged defect." LXIX.— Magistrate Castillo Víquez continues writing. In the previous citation, this Tribunal specifically addressed the claim that the petitioners now reiterate regarding the reasonableness and proportionality of Transitory Provision VI, insofar as it set an 18-month deadline to fulfill requirements and retire or receive a pension under the repealed regime. The basis of the reasoning on that occasion rested on the difference between the right to the effective enjoyment of retirement—which is only acquired upon fulfilling the established requirements—and the right of belonging held by participants in the regime who have not fulfilled requirements, which constitutes only an expectation regarding the established conditions of enjoyment. For this reason, changes made to the structure of the regime may be applied to all those who only hold a right of belonging, provided that such a decision is justified in light of the purpose and objectives of the regime and the proposed modifications, that is, that it is presented as reasonable and proportionate. Regarding this last aspect, it is deemed appropriate to reinforce the arguments given by this Chamber at the time, as the petitioners insist on attacking that transition period by arguing that 18 months is an unreasonable, arbitrary, and unfair period for a number of people who, by days or weeks, were left out of the possibility of retiring despite having a great many years of service or the retirement age.

In this context, the majority of the Chamber begins by emphasizing the fact that the setting of the 18-month period as a transition period finds its basis in the specific jurisprudence of this Tribunal on the subject of changes to pension regimes, as has been held—among several others—in judgment No. 1993-5476 of 6:03 p.m. on October 27, 1993, which addressed the claim of a person alleging acquired rights to retire under the rules of a repealed regime. In its decision, it explained on the specific topic:

“II. (…) Within this line of thought, it is important to indicate that the specific conditions of the regime, including the requirements of age and time worked, can vary in the future and may affect beneficiaries who have more than 18 months remaining to fulfill the requirements of the regulation being modified, but their right to belong to the regime and to retire under the same general conditions of the regime cannot be modified, having been consolidated as an acquired right. The 18-month period, during which the modification of the specific conditions of the regime cannot affect the individual who was planning to fulfill the requirements to receive a pension during that period, has been reiterated by the Chamber in several of its pronouncements, with the aim of protecting the beneficiary of a specific pension regime from sudden changes in the specific requirements necessary to obtain the concrete recognition of the retirement benefit; changes that may aggravate the conditions for obtaining the pension, when the interested party had only a few months remaining to acquire the concrete right to the benefit, based on the modified norm.” (emphasis not in original) Thus, by ordering the application of the prior regime to those who fulfilled the requirements within an 18-month period, the legislator has been guided by the position of this Tribunal on this specific issue of the appropriate period to balance the need for reform and updating of retirement and pension regimes, with the necessary protection of a certain group of contributors against “… sudden changes in the specific requirements necessary to obtain the concrete recognition of the retirement benefit; changes that may aggravate the conditions for obtaining the pension, when the interested party had only a few months remaining to acquire the concrete right to the benefit, based on the modified norm” according to the Tribunal's own expression. The foregoing counts in favor of the constitutional validity of the measure taken by the legislator, so a declaration of unconstitutionality in this case requires the provision of evidentiary elements that manage to demonstrate the lack of proportionality and reasonableness of employing the 18-month period established by constitutional jurisprudence from the entry into force of the reform, for the extension of the scope of coverage of the prior pension regime.

In the specific case, however, the petitioners fail to achieve the objective described above, and rather, the characteristics of the reform point to supporting the legislator's actions, because, in the first place, the Chamber has weighed the magnitude of the changes that occurred regarding the eligibility conditions, to conclude that their variation not only has technical support in the actuarial schemes, as explained when addressing said question, but additionally, the changes introduced do not represent—in general terms—an extremely abrupt and broad change compared to what was previously required. Take as an example the case of an ordinary retirement of a contributor who has only worked in the Judicial Branch, where it is observed that to retire under ordinary terms with the new regime, the employee who entered between the ages of 18 and 30 must work 3 years more than under the previous system, while for an entry age above 30 years, the required active-worker tenure increases by 5 years compared to the prior retirement system. A similar situation is noted for general cases of early retirement, whose comparison allows the conclusion that, in the vast majority of cases, the active-worker tenure obligation increases by 5 years compared to the prior retirement system; the Chamber finds only one exception in the case of early retirement based on years of service, because the prior regulation did not contain a minimum retirement age, whereas now a minimum age of 60 for women and 62 for men is required, a case in which, although the changes may exceed 7 years, it is no less true that the minimum limits (60 and 62 years for women and men respectively) do not in themselves signify an excessive requirement in terms of human dignity and effort. In sum, from all the foregoing data, the Tribunal understands that the change made in the eligibility requirements is not disproportionate as the petitioners claim, and therefore, a transition regime different from the one chosen by the legislator was not constitutionally necessary.

Add to the above that, contrary to what is asserted in some of the challenge briefs, the technical studies did contemplate the need for a brief transition system, for the sake of the sustainability of the discussed reform. In this regard, in the four options developed by the technical authority, and in particular in scenarios IICE 3 and IICE 4 (from which the guidelines for the final text of the reform were taken), it is specified that the sustainability calculations include the assumption that the modifications will be applied generally to all contributors, excluding only those who had more than 28 years of service at the date the change enters into force. This can be verified with the presentations and documents provided to the legislative file and visible on pages 2218 and 2230, such that the final legislative decision to recognize only contributors with 28 and a half years of service the possibility of retiring under the prior regime, indeed formed part of the necessary technical requirements taken into account to design the modifications that would provide financial support to the Judicial Branch Retirement and Pension Regime.

Likewise, the 18-month period was widely supported by the technical criterion, not only for reasons of legal certainty in accordance with constitutional jurisprudence, but also for reasons of actuarial solvency. Thus, in his appearance, the Superintendent of Pensions, Dr. Alvaro Ramos (see page 1691 et seq. of the legislative file), referred to the need for an 18-month transition in respect of constitutional jurisprudence (see page 1711). In the same vein, the Office of the Attorney General of the Republic (Procuraduría General de la República) (page 2115) and the University of Costa Rica (pages 2264, 2265, and 2942 et seq.) stated, pointing out:

"The last frameworks recommended here, 3 and 4, exclusively contemplate what you have indicated of 18 months" (Dr. Max Soto Jiménez) "Basically, the frameworks specifically from IICE, we proceeded to try to model as closely as possible to eighteen months. Actually, to be honest, at the modeling level, it will be two years. That is, for those with 28 years of seniority and above, the mathematical model assumed that a transitory provision would be respected for them, i.e., it was not measured with complete precision, but that is due to the modeling of life probabilities itself; they are held for something, not for each half-year, and there are reasons.

If one is a theorist, one could dedicate half a year to that, but let's say, to answer you, it was estimated as closely as possible, and the simulation assumed that all those with more than twenty-eight years of seniority would indeed have the right to maintain their pension under the current regime respected.

That is what you see there when it says 'participation with years of service, greater than or equal to twenty-eight.' When translating this into regulations, what I would recommend—and we recommend—is to vote it at eighteen months, what the Constitutional Chamber dictated." (Dr. Ronald Cartín Carranza) Deputy Pisk: Just to be clear. Despite that window for those with more than twenty-eight years, you recommend that this come into force for everyone. Regardless of the years worked, it enters into force at eighteen months. Is that so? Perfect.

Dr. Max Soto Jiménez: Those who receive their pension within the following eighteen months shall maintain the right under the current law." (…)

"logically, a transitory period exceeding 18 months negatively affects the actuarial solvency of the fund" (page 2945) In another aspect related to this issue, some petitioners have pointed to an infringement of Convention 157 of the International Labour Organization. Regarding this, it must first be noted that said instrument has not been ratified by our country, so its value as a parameter for this Chamber will depend on whether its content establishes clear and specific guidelines—validated by a good number of States—on the specific issue assessed here, namely, guides for protecting rights "in the process of acquisition." However, the text of the convention does not include any provision that would allow the Chamber to understand that the Costa Rican State has acted contrary to the international trend in the protection of human rights, given that the mentioned instrument is limited to regulating conditions so that States may grant recognition and protection to workers who, for different reasons, have accumulated rights under the protection of various state legislations. The foregoing is not applicable to the specific case, so this claim must be dismissed.

Finally, some of the petitioners have mentioned, within this specific claim, the existence of an injury to the American Convention on Human Rights, pointing out that the Inter-American Court of Human Rights, as the interpreter of said instrument, already established the minimum conditions required of States for the respect of the right to social security within the Inter-American human rights system. The interested parties refer to the case of "Muelle Flores v. Peru" in which guidelines were established that are contradicted by the issuance of Law 9544 in general, and in particular by Transitory Provision VI, which affects the conventional rights of persons with less than 28 years and six months of service at the date the reform enters into force. On this topic, the review of the text of the cited decision allows the Chamber to conclude that said judgment contains relevant elements for the interpretation of the fundamental right to social security, but that they are not relevant or pertinent to the resolution of this claim or this process in general. In the mentioned judgment, the Inter-American Court of Human Rights resolved the case of a person already retired, whose corresponding periodic sum she had been receiving ceased to be paid, due to the privatization of the public company that covered said payment. The case was even more serious, because the interested party had obtained at least two final judgments in her favor from the Peruvian justice system, and yet, at the time of filing her complaint before the international justice body, she had not managed to achieve the effective resumption of the effective payment of her retirement. The Inter-American Court of Human Rights set forth the factual essence of the case as follows:

"191. (…) The Court notes that the instant case does not concern the obligations of progressivity derived from Article 26 of the Convention, but rather refers to the lack of material realization of Mr. Muelle Flores' right to a pension, as an integral part of the right to social security, due to the non-compliance and non-execution of judgments rendered in his favor at the domestic level within the framework of the privatization of the state-owned company, carried out after his retirement. Mr. Muelle Flores acquired his right to a pension under a contribution scheme administered by the State, meaning he acquired the right to receive a pension after having made contributions for several years. The legality of his incorporation into said scheme was confirmed at the domestic level (supra para. 74)." And subsequently, it issues a valuable summary of its effort to review and interpret the different sources it deemed pertinent to its task of delimiting the right to social security in the specific case:

"192. In this sense, based on the criteria and constitutive elements of the right to social security, and taking into account the facts and particularities of the instant case, the State's obligations regarding the right to a pension are the following: a) the right to access a pension after having reached the legal age for it and the requirements established in domestic regulations, for which a social security system must exist that functions and guarantees the benefits. This system must be administered or supervised and overseen by the State (in the event it is administered by private entities); b) guarantee that the benefits are sufficient in amount and duration, allowing the retiree to enjoy adequate living conditions and sufficient access to health care, without discrimination; c) there must be accessibility to obtain a pension, meaning reasonable, proportionate, and transparent conditions must be provided for accessing it. Likewise, the costs of the contributions must be affordable, and beneficiaries must receive information about the right in a clear and transparent manner, especially if a measure that could affect the right is taken, such as the privatization of a company; d) retirement pension benefits must be guaranteed in a timely manner and without delays, taking into consideration the importance of this criterion in elderly persons; and e) effective claim mechanisms must be available in the event of a violation of the right to social security, in order to guarantee access to justice and effective judicial protection, which also encompasses the material realization of the right through the effective execution of favorable decisions rendered at the domestic level." (the bold emphasis is not in the original) As can be observed, none of the points cited by the international tribunal have been disregarded by the Costa Rican legislator in its effort to generate measures of a general nature for the modification and adjustment of the Judicial Branch retirement and pension regime; on the contrary, the situation of persons who had already acquired the right to the enjoyment of their retirement or pension for having fulfilled the established requirements is clearly respected, and on the other hand, the timely financing of an old-age retirement for those who still need to meet the legally established conditions is ensured.

In conclusion, the Chamber understands from the foregoing that there are no evidentiary elements that would allow for the assertion that the period established in Transitory Provision VI of Law 9544 is unreasonable or disproportionate with respect to the purpose sought by the provision, and rather, the legislative decision is justified in light of the changes made. Likewise, there is no infringement of conventional law to declare, and therefore, the action must be dismissed in this aspect." From the previously transcribed precedent, it is important to highlight: a) that a person does not have a right to retire under specific conditions, as these may be varied when this is necessary to guarantee the existence of a specific pension and retirement regime, since otherwise, conditions could be created that make the system financially unsustainable, which would ultimately cause the right to retirement to be severely affected, or its exercise to be entirely impossible, given the lack of funds preventing the payment to the interested party of their retirement amount; b) in this particular case, the reform to the Judicial Branch Retirement and Pension Regime precisely seeks to guarantee its permanence, for which parameters and requirements were established based on the opinion of experts received by the Special Commission that reviewed legislative file No. 19,922, as well as technical studies incorporated into the file; and c) regarding the 18-month period established in Transitory Provision VI, it not only finds its basis in the specific—and reiterated—jurisprudence of this Tribunal on the subject of changes to provisional regimes, but also has due technical support, for reasons of actuarial solvency, as already highlighted in said vote.

2.- ON THE 18 MONTHS IN LIGHT OF THE FINAL REPORT: “COMPILATION AND FINAL REPORT: CONCLUSIONS AND RECOMMENDATIONS” (PRODUCT 6) OF THE PROJECT: “ACTUARIAL STUDY OF THE JUDICIAL BRANCH RETIREMENT AND PENSION FUND (ESTUDIO ACTUARIAL DEL FONDO DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL)”, PREPARED BY THE INSTITUTE FOR RESEARCH IN ECONOMIC SCIENCES (INSTITUTO DE INVESTIGACIONES EN CIENCIAS ECONÓMICAS, IICE) OF THE UNIVERSITY OF COSTA RICA.

It must be insisted, once again, that the 18-month period provided for in the challenged transitory provision is not only based on the extensive jurisprudence of this Tribunal on this topic, but also falls within the bounds of reasonableness, in light of the technical criteria incorporated into the legislative file. Regarding this point, it is of particular interest to refer to the report issued by the Institute for Research in Economic Sciences of the University of Costa Rica (IICE), on July 4, 2017, called Product 6 “Compilation and Final Report: Conclusions and Recommendations,” as the main technical criterion incorporated into the legislative file.

Of relevance to this action, it stands out that the study includes an initial analysis of three scenarios, corresponding to three different normative frameworks: the one in force at the time of the study and two proposed reforms (“substitute text” and “Full Court (Corte Plena)” proposal). The study concludes that all three frameworks are insolvent. In this regard, the table visible on page 5 can be observed:

What is relevant is that both the “substitute text” and the “Full Court” text contemplated a participation with years of service of “>=20”, as verified in the table added on page 43:

Hence, in the official communication signed by the Acting Superintendent of Pensions, communication SP-1240-2023 of October 19, 2023 (associated with this file on October 20, 2023), it was stated that both the substitute text and the Full Court text established “a transitory provision maintaining the previous profile of requirements and benefits (Law 7333) for persons with twenty years or more of service. The foregoing resulted in neither proposal generating the required impact in magnitude and timeliness, given the actuarial situation of the regime.” This is related, mainly, to action No. 19-024589-0007-CO, in which the underlying intent is to extend the transitory regime for persons with 20 or more years of service, but the cited technical study already concluded that this was not viable.

Moreover, the aforementioned lack of viability of the proposed texts caused the IICE to present four new scenarios, which are described in the table visible on page 57:

Among the main changes highlighted in these scenarios is the modification of participation with years of service to “>=28”.

Indeed, it is noteworthy that, when comparing or contrasting these new scenarios with the original proposals (which were not viable), the IICE itself makes the following statement (page 71):

“From the comparison of the different results obtained in each of the Normative Frameworks (IICE_1 vs IICE_2 vs IICE_3 vs IICE_4), it is observed that:

-the main indicators of actuarial solvency quantified here (the Actuarial Balance and the respective “Insolvency Level” indicator) under FRAMEWORKS IICE_2, IICE_3, and IICE_4, improve significantly with respect to the indicators obtained for the same economic scenario under FRAMEWORK IICE_1 (which, let us recall, is a normative framework similar to that of Full Court but with a much more limited transitory provision and a worker and retiree contribution of 15%).” From which it can be interpreted that one of the modifications the IICE had to make, in pursuit of offering a solvent scenario, was to include a “much more limited transitory provision.” Finally, the IICE concludes (page 71) that:

“7.5 Final assessment of the results obtained The analysis developed indicates that under any of the first five benefit and contribution schemes so far studied by the IICE (i.e., under 1-CURRENT FRAMEWORK (MARCO VIGENTE), 2-SUBSTITUTE TEXT FRAMEWORK (MARCO TEXTO SUSTITUTIVO), 3-FULL COURT FRAMEWORK (MARCO CORTE PLENA), 4-FRAMEWORK IICE_1, and 5-FRAMEWORK IICE_2), the Fund COULD NOT guarantee its promises in the long term using only the resources allocated by the Framework in question.

In contrast, under either of the last two benefit and contribution schemes proposed by the IICE (i.e., under FRAMEWORK IICE_3 or FRAMEWORK IICE-4), the Fund would have actuarial solvency and COULD guarantee its promises in the long term using only the resources allocated by the Framework in question (i.e., it would be self-sufficient).

Under the premise that the Fund must guarantee by itself the benefits it promises (without creating additional burdens for the State or the rest of Costa Rican workers), the recommendation of this IICE report to the Judicial Branch is to choose between one of the two normative frameworks IICE_3 or IICE_4). These normative frameworks are only insolvent in a “Pessimistic” economic-financial scenario.” In which case, it is worth reiterating that these two proposed scenarios (IICE_3 and IICE_4) contemplated a participation with years of service “>=28”. On this point, in the cited communication SP-1240-2023, the Acting Superintendent of Pensions explains: “Thus, in the 'FRAMEWORK IICE_4' scenario, it is indicated that 'Partic. with years service > = 28 (...) Current Framework Rules Apply,' meaning that all persons with 28 years of service or more at the valuation cutoff date remain under the conditions prior to the reform.” This implied or translated into proposing a 24-month transitory provision.

Now, returning again to the IICE study, in its final considerations section (page 74) it is stated:

“b. On the “transitory provision” that would allow persons who would retire within a period of two years, and the possibility of extending that transitory provision for persons who would retire within a period of five years.

An increase in the “transitory provision” postpones the adjustments and therefore negatively affects the Fund's income.” To properly assess the effect of an increase in that transitional period, a complete actuarial analysis would be necessary.

Furthermore, a decision in this direction could induce administrators and political agents to undertake efforts to include successively larger groups, such that in the end a two-year "transitional period" would end up becoming a transitional period of five, six, or even more years.

Finally, extending the transitional period postpones part of the adjustments, meaning that analyses of the Fund's profitability and solvency may give the impression that the adjustments that were actually made had no effect." A reference was also made (on pages 74 and 75) to the issue of gradualism in the application of the adjustments, and it was indicated:

"f. Gradualism.

On some occasions, inquiries have been made as to whether the proposed adjustments, both in contributions and in retirement ages, can be applied gradually. The idea behind these inquiries is to mitigate the cost of the adjustment for the participating population.

The IICE working group, having determined that the current retirement and pension regime for the Judicial Branch is insolvent, has considered it essential that the adjustments be made as soon as possible. As indicated previously, the Judicial Branch Retirement and Pension Fund is insolvent at this moment, and every day that the adjustment is postponed worsens the insolvency situation. It is taking these guidelines into consideration that the IICE technical team does not consider the gradual application of adjustments appropriate." From the foregoing, the following conclusions can be drawn: a) the technical study did analyze scenarios that included the possibility of maintaining the profile of requirements and benefits existing prior to the proposed reform for persons with 20 or more years of service, but it was concluded that this was not viable; b) this necessitated proposing new scenarios, which reduced the application of the previous profile to persons with 28 or more years of service (which would translate into a 24-month transitional period); and c) regarding the possibility of extending that transitional period to persons who would retire within a 5-year period (which refers, particularly, to the claims made in action No. 22-0014613-0007-CO), the truth is that the study itself does not recommend such an extension.

Additionally, it must be taken into consideration that the aforementioned IICE report - product 6 - was prepared with a cut-off date of December 2015, such that the 24-month transitional regime period recommended in the study was projected to cover those persons who, by December 2017, met the requirements set forth in Law No. 7333; however, note that Law No. 9544 was approved in 2018 and entered into force in May of that year, which means that, de facto, a transitional period of 47 months occurred (if one considers the time elapsed between the cut-off date of the technical study and the effective date of the law's enactment, as well as the 18-month period finally provided in Transitory Provision VI). Likewise, that final adjustment from 24 to 18 months, in the case of the challenged transitory provision, can be understood as justified, insofar as it partially compensated for the time elapsed between the cut-off date of the actuarial study performed by the IICE – product number 6 – and the date on which Law No. 9544 was approved and enacted. The foregoing, in the interest of seeking the effectiveness of the regime's reform.

3.- IN CONCLUSION.

The Legislative Assembly, at the time of approving the transitory provision challenged as unconstitutional, adhered to the repeated precedents of this Court and acted within reasonable parameters, with due and sufficient support from the technical criteria incorporated into the legislative record.

• C)WHAT THE SITUATION OF THE JUDICIAL BRANCH RETIREMENT AND PENSION REGIME WAS BEFORE ITS REFORM BY LAW NO. 9544.

According to the 2015 actuarial study, there was an actuarial deficit of 6.37 trillion, which put its sustainability at risk. Moreover, a first critical point for the regime was projected for the year 2029, as the interest generated by the Fund's reserves would begin to be used to meet its payment promises. A second critical point was projected for the year 2040, as it would be the first year in which it would be necessary to use the reserves to meet the Fund's promises, and a third critical point was projected for the year 2048, at which time the Fund would no longer be able to meet the payment of its promises. This demonstrates the critical situation in which the regime found itself.

It must be reiterated that the crisis of pension regimes is due to the inversion of the population pyramid, which especially affects pay-as-you-go regimes.

• D)WHAT THE CURRENT SITUATION OF THE JUDICIAL BRANCH RETIREMENT AND PENSION REGIME IS.

The latest actuarial study conducted on the regime, with a cut-off date of December 31, 2022 (called "Actuarial Valuation of the Judicial Branch Retirement and Pension Regime, period 2022" and viewable on the website of the Superintendencia de Pensiones), sets forth the following conclusions:

• a)The base scenario, which corresponds to what the regulations establish with a closed population, has a funding ratio of 76.28% and would require a contribution rate on salaries of 62.09%, producing a deficit of 644,820 million colones. According to the provisions of the Regime's Solvency Policy, the funding ratio is tolerable as it is between 70% and 80%.
• b)For the year 2022, the deficit decreased due to an increase in the active population and a change in the profitability objectives by JUNAFO. Additionally, there was an improvement in results due to changes in exit rates and the salary scale. All this despite changes in the macroeconomic environment, which resulted in unrealized losses of 63,240 million colones.
• c)It is necessary to obtain worker growth rates close to or above 3.35% to achieve a funding ratio of 100%. The scenario with an open population and a population growth rate of 1% reduces the deficit to 369,684 million colones, and a funding ratio of 87.67% is achieved.
• d)The optimistic scenario shows a deficit of 405,981 million colones, a funding ratio of 82.88%, and an average contribution rate of 54.80% of salaries.
• e)The pessimistic scenario shows a deficit of 954,340 million colones, a funding ratio of 69.76%, and an average contribution rate of 70.63% of salaries.
• f)Under the assumptions used, the accrued benefits scenario presents an actuarial deficit of 1,079,928 million colones and a funding ratio of 48.73%. 64% of the liabilities correspond to rights in course of payment and 36% to rights in formation.
• g)To improve the level of solvency, it is necessary to take actions, which must fall upon the rights in course of payment, because these rights were granted under actuarially lax conditions that contributed to the current situation of the Fund. One of these actions is to reduce the replacement rate percentage from 80% to 50% for survivor's rights and to recognize 50% inflation on current rights in course of payment for a period of ten years. This scenario increases solvency and will prolong the Fund's payment capacity.

This even leads the same study to recommend proposing a bill that would allow decreasing the cost of rights in course of payment, in the sense of:

Reducing the replacement rate percentage from 80% to 50% for future survivor's rights. For 10 years, recognizing 50% inflation on rights in course of payment.

From which it follows – and which is of interest for this action – that, although a reduction in the actuarial deficit is verified, it has still not been eliminated, and therefore the adoption of additional measures is even recommended to increase the Fund's solvency and prolong its payment capacity.

It must not be lost sight of that this regime is a pay-as-you-go one, in which active workers – with their contributions – finance the payment of ongoing retirements and pensions. Hence, it is not reasonable and is not in accordance with actuarial rules to draw on the fund's returns, because this means there is a financial imbalance – the payments for ongoing retirements and pensions (month by month) exceed the fund's contribution income – and, furthermore, the fund decreases every day, thereby entering a crisis that can lead to the closure of the regime – actuarial deficit.

• E)WHAT THE CONSEQUENCES OF GRANTING THIS UNCONSTITUTIONALITY ACTION ARE.

In result 33 we have the answer. In this regard, the president of the Pension Fund refers to the actuarial study conducted by MBA Raúl Hernández González, which concludes:

"In the following table, a summary of what was determined in each of the runs performed is presented. The results shown include the number of additional persons who may benefit, as well as the total increase in the deficit. The corresponding balance is included in the annexes:

| --- | --- | | (...) it is important to indicate that ... currently the funding ratio is less than one, therefore, any improvement to the benefits would cause the funding ratio to decrease further." | Furthermore, the president of the Pension Fund clarifies that the figures are expressed in thousands of millions of colones, and therefore, for the last scenario of a 10-year term and 2759 persons, it should be read as three hundred twenty-four thousand eleven million colones, equivalent to approximately six hundred three million dollars of increase in the deficit compared to the open scenario with a growth rate of 1% that was used as a base under said actuarial valuation methodology. He also notes that it must be clear that any increase in time in Transitory Provision VI would cause an increase in the expenditures and/or obligations to which this regime is subjected, and therefore all scenarios show a worsening in the corresponding indicators, and the claim of this action would cause an increase in the deficit of the Judicial Branch Retirement and Pension Fund Regime –FJPPJ–, with relative increases between 13.31% and 87.65% of said deficit. He adds that, when evaluating the funding ratio indicator, this indicator relatively worsens between 1.57% and 9.40%. He concludes, finally, that both indicators coincide in their trend toward the worsening of the regime's financial health, should any extension be upheld.

In this direction, it must be kept in mind that, unlike the judgments of ordinary courts, whose effects are inter partes, the judgment of the Constitutional Court has erga omnes effects, which is why the Court must be extremely cautious when resolving an issue, as it must take into great account the effects in the political, economic, social, cultural sphere, etc. In this regard, in judgment No. 2000-7730, the following was established:

"Also, the doctrine of constitutional law observes that when interpreting the content of a norm: “1) the finalistic content of the Constitution must prevail, which is to guarantee human freedom and dignity; 2) it must be interpreted with a broad, liberal, and practical criterion; 3) the words of the Constitution must be interpreted in their general and common sense, unless it is clear that the creator of the norm referred to a technical-legal meaning; 4) it must be interpreted as a whole, as a harmonious set; 5) the social, economic, and political situations existing at the time of the interpretation must be taken into account; 6) exceptions and privileges must be interpreted with a restrictive criterion, and 7) public acts are presumed constitutional if through interpretation they can be harmonized with the Fundamental Law.” (Bold text does not correspond to the original).

In consideration of what has been analyzed up to this point, it can be concluded that the 18-month period provided for in the challenged transitory provision was reasonably supported by the data yielded by the respective technical studies. In contrast, if this Chamber were to order an extension of that period – as is sought in this action – it would entail generating a worsening in the financial health of the regime, which even today still presents an actuarial deficit – despite the favorable effects caused by the reform implemented through Law No. 9544.

• F)ON CONSOLIDATED LEGAL SITUATIONS AND ACQUIRED RIGHTS.

The Constitutional Chamber, following the most authoritative doctrine on the subject, has a clear and precise concept of consolidated legal situations and their difference from acquired rights. In effect, a situation is considered to have been consolidated from a legal standpoint when the person fulfills the factual assumptions – requirements – to obtain a right; before that, there is only an expectation of a right. It differs from an acquired right because the income has entered the person's patrimony; hence, in a retirement and pension regime, a consolidated legal situation is understood to exist when the person meets all the requirements established by law for the pension or retirement right to be granted. On the other hand, one is faced with an acquired right regarding the income that enters the patrimony of the retirees and pensioners. In this regard, the Constitutional Chamber has established the following:

"The concepts of 'acquired right' and 'consolidated legal situation' appear closely related in constitutionalist doctrine. It is possible to state that, in general terms, the former denotes that consummated circumstance in which a thing – material or immaterial, be it a previously alien good or a previously non-existent right – has entered into (or had an impact on) the patrimonial sphere of the person, such that the person experiences an advantage or verifiable benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial plus, but rather a state of affairs fully defined as to its legal characteristics and effects, even if these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still remain or not, but rather that – by virtue of a legal mandate or a judgment that has so declared – a rule, clear and defined, has already emerged into legal life connecting a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then...'; i.e.: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that the conditioned effect must also necessarily occur. In both cases (acquired right or consolidated legal situation), the legal system protects – making it intangible – the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing the already acquired good or right from the person's patrimony, or of causing that if the factual presupposition had occurred prior to the legal reform, the (beneficial, it is understood) consequence that the interested party expected from the consolidated legal situation no longer arises. Now, specifically regarding the latter, it has also been understood that no one has a 'right to the immutability of the legal system,' i.e., that the rules never change. Therefore, the constitutional precept does not consist of the rule connecting the fact with the effect, once born into legal life, not being able to be modified or even suppressed by a later norm; what it means is that – as explained – if the conditioning assumption has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the previous norm from arising. This is so because, it was said, what is relevant is that the state of affairs the person enjoyed was already defined as to its elements and effects, even if these are still being produced or have not even begun to be produced. In this way, the person has a right to the consequence, not to the rule." (rulings No. 7331-97 and No. 2765-97) (Highlighted text is not from the original).

Having seen the matter in this way, it is not legally appropriate to invoke a consolidated legal situation in this dispute, for the elementary reason that those who do not meet the retirement requirements are not in that assumption. At most, one can speak of a right in course of acquisition, as will be analyzed later.

Ergo, when there is an objective and reasonable justification, supported by a technical study, the legislator is authorized by the Law of the Constitution to modify retirement and pension requirements, even cutting the benefit framework, in order to give financial and actuarial sustainability to the respective regime, because the collective interest must, at all times, prevail over the particular interest.

Thus, the majority of the Constitutional Chamber concludes that there is no violation of consolidated legal situations, for the simple reason that these do not exist and, therefore, constitutional provision 34 is not violated.

• G)PRINCIPLE OF LEGITIMATE EXPECTATIONS.

As is well known, legitimate expectations is a concept coined in German Law (Vertrauensschutz), where it has constitutional rank, derived from the principle of legal certainty and, in other legal systems, also from the principle of good faith. This principle is long-standing. In effect, the Court of Justice of the European Communities (CJEC), although it was not included in the Constitutive Treaties, recognized it in 1973 in the matter of civil service (Case 81/1972 of June 5). For its correct interpretation and application, according to doctrine, certain requirements are demanded: 1) there must be an action by the community authorities that justifies the legitimate expectations of those affected (and, in this sense, both a legal and an illegal measure that confers benefits, administrative practices, promises made, erroneous information supplied, surprising regulatory changes, etc., are possible); 2) the expectations of the person, which have a subjective basis, must, where appropriate, be recognized and considered by an external observer and be capable, thereby, of acquiring an objective basis and dimension such that they become what the Court calls "founded hopes" not contrary to Community Law; and 3) it is necessary that in the assessment of the interests of the affected person in opposition to the public interest present, the latter must not be preponderant. As can be observed, in the case of Judicial Branch officials who had twenty years or more of service and who did not fall within the period established by the challenged Transitory Provision VI, none of these assumptions are met. In the first place, all workers who contribute to a retirement and pension regime know very well that when the regime is going through a financial or actuarial crisis, the Law of the Constitution authorizes the State to make adjustments, even when these cut retirement and pension benefits in order to financially and actuarially balance the regime. In this sense, no one has a right to the immutability of the legal system, i.e., that the rules cannot be modified in order to give financial and actuarial sustainability to the system. In other words, there is no conduct, act, law, or constitutional or international norm that gives the person the expectation that the retirement requirements of their regime will never be modified; quite the contrary, the conduct of the State and the Board of Directors of the CCSS that they have assumed is that when there is an imbalance in the pension regimes, the Law of the Constitution authorizes them, based on technical studies, to make the corresponding changes, even when this means a cut in benefits, in order to give financial and actuarial sustainability to the regime. In this direction, the right of belonging to a pension regime, according to ILO Convention 102, cannot be equated with the non-modification of the retirement and pension benefits that at a given moment the regime grants to the person, which are subject to changes when the actuarial studies so establish. In the second place, we are not facing "founded hopes" either, because in current times, in which the population pyramid has been inverted – current societies are undergoing an accelerated aging process, as was explained ut supra – which seriously affects retirement and pension regimes, especially pay-as-you-go ones, since the income from active workers is insufficient to finance the retirements and pensions in course of payment month by month, from which Costa Rican society is not exempt, it is clear that permanent adjustments must be made to retirement and pension regimes to guarantee their financial and actuarial sustainability; the opposite would be to let them fall into insolvency, which would indeed affect the fundamental rights of retirees and pensioners. Finally, when a crisis occurs in a retirement and pension regime, as occurred with the special Judicial Branch regime that reached a turning point, in an analysis weighing the interests at stake, there is no doubt whatsoever that going beyond what the technical study established would be giving preponderance to particular interests over general interests, which, by all accounts, does not align with the Law of the Constitution. Consequently, the majority of this Court concludes that the principle of legitimate expectations has not been violated.

• H)VIOLATION OF THE PRINCIPLES OF REASONABLENESS AND PROPORTIONALITY.

The Constitutional Court, in an interesting resolution, ruling No. 5236-99, established the following components of reasonableness:

"...this Court deems it prudent to refer to what is considered the 'reasonableness of the law as a parameter of constitutionality.' It is worth recalling, first, that the 'reasonableness of the law' was born as part of 'substantive due process of law,' a guarantee created by the jurisprudence of the Supreme Court of the United States of America, in line with the Fourteenth Amendment to the Federal Constitution. In the initial conception, 'due process' was directed at the procedural review of the legislative act and its effect on substantive rights. At the end of the 19th century, however, it surpassed that procedural conception that had given it origin and was elevated to an axiological recourse that limits the actions of the legislative body. From then on, we can speak of due process as a generic guarantee of liberty, that is, as a substantive guarantee. The surpassing of 'due process' as a procedural guarantee is due, basically, to the fact that a law that has followed the established procedure and is valid and effective can also injure the Law of the Constitution. To perform the reasonableness test, U.S. doctrine invites us to examine, first, the so-called 'technical reasonableness' within which the specific norm (law, regulation, etc.) is examined. Once it is established that the chosen norm is adequate to regulate a given matter, it will be necessary to examine whether there is proportionality between the chosen means and the sought end. Having passed the criterion of 'technical reasonableness,' one must analyze 'legal reasonableness.' For this, this doctrine proposes examining: a) balancing reasonableness, which is a type of legal assessment resorted to when, given the existence of a certain antecedent (e.g., income), a certain provision is demanded (e.g., tax), it then being necessary to establish whether it is equivalent or proportionate; b) reasonableness of equality, which is the type of legal assessment based on the premise that equal antecedents must have equal consequences, without arbitrary exceptions; c) reasonableness in the end: at this point, it is assessed whether the objective to be achieved does not offend the purposes set forth in the constitution. Within this same analysis, it is not enough to state that a means is reasonably adequate for an end; it is also necessary to verify the nature and the size of the limitation that a personal right must bear because of that means. In this way, if the same end can be achieved by seeking another means that produces a less burdensome limitation on personal rights, the chosen means is not reasonable (in a similar sense, see judgments numbers 1738-92, of eleven forty-five o'clock on July first, nineteen ninety-two, and 08858-98 of sixteen thirty-three o'clock on December fifteenth, nineteen ninety-eight). German doctrine made an important contribution to the subject of 'reasonableness' by successfully identifying, in a very clear way, its components: legitimacy, suitability, necessity, and proportionality in the strict sense, ideas it develops by stating that '...Legitimacy refers to the fact that the objective intended with the challenged act or provision must not be, at least, legally prohibited; suitability indicates that the challenged state measure must be apt to effectively achieve the intended objective; necessity means that among several equally apt measures to achieve such an objective, the competent authority must choose the one that least affects the legal sphere of the person; and proportionality in the strict sense provides that apart from the requirement that the norm be apt and necessary, what is ordered by it must not be out of proportion with respect to the intended objective, i.e., it must not be 'demandable' of the individual...'" (judgment of this Chamber number 3933-98 of nine fifty-nine o'clock on June twelfth, nineteen ninety-eight). In the sense of the criterion set forth above, this Chamber has been applying the institution in its jurisprudence. Let us now look at the analysis of the specific case. On the test of 'reasonableness': To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide evidence or at least elements of judgment on which to support its argumentation, and the same procedural burden corresponds to whoever refutes the arguments of the action, and failure to comply with these requirements makes the claims of unconstitutionality unacceptable. The foregoing, because it is not possible to perform an analysis of 'reasonableness' without the existence of a coherent line of argument that is supported evidentiarily. This is, of course, when it does not involve cases whose 'unreasonableness' is evident and manifest. Returning to the claim regarding the unreasonableness of the eighteen-month period to qualify for an ordinary pension, the Chamber notes that the plaintiffs not only do not indicate the reasons that lead them to conclude that the challenged norm is unreasonable, but also do not provide any evidence that would allow this Court to reach that conclusion, transforming the debate into the exposition of subjective concepts. On the other hand, the case does not present the characteristics of being a situation of evident and manifest 'unreasonableness' that is also easily perceptible; rather, in the abstract, it can be indicated that the norm aligns with the purpose of the legislative reform, which is to correct the distortions of the repealed pension system, creating in parallel a new system that protects the 'right of belonging to the National Teachers' Regime' that this Chamber has recognized as a right of the contributors." (What is in bold does not correspond to the original).

For its part, the second principle, that of proportionality, implies that the legislative act must be appropriate for the realization of the ends that underlie it (principle of adequacy); it must be necessary, meaning it must impose the least possible amount of restrictions on the fundamental rights of the inhabitants of the Republic, which means that the means employed by the legislator must be adequate and necessary to achieve the proposed objective and can only be necessary when the legislator could not have chosen another means, equally efficient, but that did not limit or did so in a less sensitive way the fundamental right; and, finally, proportional in the strict sense, i.e., a legislative act that is just right. (See, among other resolutions of the Constitutional Court, ruling No. 1739-92 and ruling No. 5236-99).

Adopting the foregoing as a frame of reference, it must be kept in mind that the law enacted by the Legislative Assembly is endowed with an objective and reasonable justification – to prevent the special regime from falling into a state of insolvency.

For this purpose, it was based on a technical-actuarial study, whose sixth deliverable did not endorse that the transitional provision should have a period of 5 or more years. There is no doubt whatsoever that the measures adopted by the Legislative Assembly, including Transitory Provision VI, were suited to the end—resolving the actuarial deficit of the Judicial Branch retirement and pension system. Proof of what is asserted is the fact of its substantial reduction, although based on the latest actuarial study it still subsists. The foregoing means that the challenged provision proved effective—the parliamentary normative act was adequate to resolve the intended end. Finally, the fact that the legislature opted for a period of 18 months instead of 24 does not, in itself, cause the unconstitutionality of the questioned provision, for the elementary reason that said normative act falls within a reasonable parameter according to the actuarial study—deliverable six—, hence it is not possible to maintain that the most burdensome solution was chosen for those who had a right in the process of acquisition (derecho en vía de adquisición). So much so that, after nearly six years since the law entered into force, the actuarial deficit has still not been eliminated, and rather the new study proposes that a series of measures be adopted, as outlined ut supra, to achieve the sustainability of the system.

• I)RIGHTS IN THE PROCESS OF ACQUISITION (DERECHOS EN VÍAS DE ADQUISICIÓN).

The Colombian Constitutional Court has established that the "substitution of one provision for another requires the necessity of a transitional regime. The existence of transitional provisions is indispensable in social security pension legislation because there are rights in the process of acquisition. It is an ex-lege right because it is born from a provision that expressly establishes it and sets forth reasonable criteria for enjoying the exception. Once the provision establishing the transitional regime enters into force, persons who meet the requirements to acquire it consolidate a specific legal situation that cannot be undermined. It is, moreover, an authentic subjective right that gives its holder the right to have the benefit recognized under the conditions established in the previous regulations and to resort to the courts in case of non-compliance. Since, additionally, social security rights are inalienable (Articles 48 and 53 C.P.), a transitional regime is all the more necessary" (judgment T-235/02). The Legislative Assembly, by establishing Transitory Provision VI—a period of eighteen months from the entry into force of the law—respects the rights in the process of acquisition of employees who were close to retiring, since they may opt for the fundamental right to retirement based on the rules of the amended legislation. Note that the judgment of the foreign court does not set a deadline to guarantee these rights in the process of acquisition, nor could it be set, as the analysis must be casuistic. In the case sub lite, we note that the actuarial studies—deliverable number 6—at all times established that a transitional period of ten or five years was not sustainable, at most twenty-four months. Therefore, based on a technical criterion, it is not possible to maintain that the rights in the process of acquisition are being violated. It must be borne in mind that these types of rights are conditioned upon a technical criterion, a situation that does not exist in this case for granting them. Nor is the argument acceptable that, based on the technical criterion, the transitional period had to be twenty-four months and not eighteen. In this vein, it must be borne in mind that a legislative act, unlike an administrative one, is one in which the legislator enjoys, by express mandate of Constitutional Law, a broad margin of discretion. In that sense, it would be unreasonable and anti-democratic to argue that parliamentary discretion is subject to the rules of administrative discretion, that is: the general principles of law, the determining facts, and indeterminate legal concepts. A thesis in that direction would be contrary to the most elementary rules of democracy and, consequently, we would fall into the "tyranny of technique." Those who exercise legislative authority, according to Article 105, have a broad margin to adopt fundamental political decisions through the legislative act, as long as they respect Constitutional Law; this is the limit, no other, much less the one designed for the exercise of administrative discretion. The foregoing means that, although this Chamber has established that in matters of retirement and pensions the legislator must rely on technical studies, these, in all their dimensions, are not binding upon him; he may well opt for other solutions that prove reasonable and that constitute a valid response to resolve the problem that is the object of the bill. In the case sub lite, we note that the legislator, at the moment of exercising the power to legislate, faced a problem of enormous dimensions—the insolvency of the retirement and pension system—and at the moment of legislating, enacted the provisions he considered most adequate to resolve it—in fact, time has shown that the measures adopted have almost resolved the problem in its entirety, as the actuarial deficit has been substantially reduced, as demonstrated by the latest study—, hence it is not acceptable to assert that there is an unconstitutionality because the legislator adopted the period of eighteen months, and not that of twenty-four. Note that there is no irrationality or disproportionality in the legislator's action due to the proximity between one period and the other. Indeed, what was previously indicated must be brought to the fore, in the sense that this adjustment from twenty-four to eighteen months can be understood as justified, due to the time elapsed between the cutoff date of the actuarial study conducted by the IICE—deliverable number 6—and the date on which Law No. 9544 was finally approved and enacted. Hence, for the majority of the Court, the rights in the process of acquisition of judicial employees who had twenty or more years of belonging to the special system were not violated, as those rights were respected insofar as was reasonably possible.

• J)THE ALLEGED VIOLATION OF INTERNATIONAL TREATIES AND I.L.O. CONVENTIONS.

It is alleged that the challenged provision violates several international human rights treaties and those of the I.L.O. For a correct understanding of the majority's thesis, it is necessary to take into account a series of basic concepts in relation to the international commitments undertaken by the State of Costa Rica. Otherwise, one may fall into a distorted version of the issue. First, it must be specified that treaties relating to economic, social, and cultural rights—hereinafter ESCR—condition their effectiveness on the economic possibilities of each State and on the principle of progressivity. This follows from Article 26 of the American Convention on Human Rights, when it provides the following:

Article 26 Progressive Development The States Parties undertake to adopt measures, both at the domestic level and through international cooperation, especially economic and technical, to achieve progressively the full effectiveness of the rights that derive from the economic, social, and educational, scientific, and cultural norms contained in the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, to the extent of available resources, by legislative or other appropriate means.

For its part, Article 1 of the Protocol to the cited convention—Protocol of San Salvador—establishes the following:

Article 1 Obligation to Adopt Measures The States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both of a domestic nature and through cooperation among States, especially economic and technical, to the maximum of available resources and taking into account their degree of development, in order to achieve progressively, and in accordance with domestic legislation, the full effectiveness of the rights recognized in this Protocol.

As can be observed, with regard to ESCR, international human rights instruments do not impose immediate obligations upon States that must be satisfied, since international commitments are to be achieved progressively and in accordance with the availability of resources possessed by each State. Hence, when these provisions are invoked, it is necessary to be clear about these conditioning factors. Indeed, if the Protocol to the American Convention on Human Rights is analyzed in greater detail, the will of the contracting parties, adopting as a frame of reference the conditioning factors ut supra, only establishes as justiciable before the Inter-American Human Rights System the rights to unionization and education, precisely to prevent States from being subject to condemnations that contradict the principles of progressivity and availability of resources. Hence, the majority of the Court emphasizes that it is not enough to cite an international provision or convention if, alongside that invocation, the aforementioned presuppositions have not been taken into account. This way of viewing the issue meshes with the position of this Court in the advisory opinion it rendered on the consultation regarding the Public Finance Strengthening bill (case file no. 18-016546-0007-CO), in which the Constitutional Chamber established the concept of the possible social state under the rule of law (Estado social de derecho posible), that is, that which the State can finance according to the resources available at a given historical moment. These positions—both from international instruments and from the Constitutional Chamber—are especially relevant when it comes to the sustainability of retirement and pension systems. In this area, the pro fondo principle, that is, the rights of the community, take precedence over any particular or group interest, hence the duty of the State and its institutions to design, adopt, and execute public policies to give financial and actuarial sustainability to these systems, in such a way as to effectively guarantee all retired and pensioned persons their income month after month in accordance with the provisions of the respective laws or agreements of the collegiate bodies—as occurs with the IVM. This means that the financial and actuarial sustainability of retirement and pension systems is in full harmony with international instruments, since thanks to this, the fundamental right to retirement or pension is guaranteed as a guarantee of a greater social and economic right, such as that to social security.

In another vein, it is also necessary to bear in mind that the invocation of international human rights instruments, in order to be binding upon the State of Costa Rica, requires a sine qua non requirement: that they be ratified, which presupposes, based on Constitutional Law, their negotiation and signing by the Executive Branch, their approval by the Legislative Assembly, their ratification by the Executive Branch, and their entry into force in accordance with the provisions of the international convention. It is important to bear in mind what Article 1 of the Constitutional Jurisdiction Law provides, in the sense that it protects the human rights derived from the international instruments in force in the State of Costa Rica. In this vein, the provision is clear and precise; a different conclusion cannot be derived from it, unless one wishes to act against its ethos. This issue has the greatest relevance for the State of Costa Rica in multiple respects. First, the State of Costa Rica cannot be accused of violating an international human rights instrument when it has not been ratified. A contrary position would have no standing in any international court and would go against the most basic doctrine of public international law. Second, when no international obligation exists, it is not possible to invoke treaties not ratified by the State of Costa Rica, deriving a specific right from them. This Court would do wrong to adopt a thesis in that direction, as it would be usurping the powers that Constitutional Law grants to the Executive Branch and the Legislative Branch; therefore, it is not possible to assert that a provision of an unratified treaty is being violated, so, with regard to this argument, the majority of this Court considers it must be rejected. Finally, it must be borne in mind that when the Constitution grants the Legislative Assembly the approval of international treaties, with the exception of lower-ranking protocols derived from them, what is established is a legal institution linked to democracy, since what underlies this is that the Legislative Assembly, the fundamental organ of the social and democratic state under the rule of law—there is no democracy without parliament—exercises democratic control over the commitments the Costa Rican State assumes before the international community. What is sought in an issue of such depth is that it be discussed in a plural, representative, open body, facing the inhabitants of the country, and in that way, adopt the best decision for national interests. It is upon this decision by parliament and its sanction and publication by the Executive Branch that this Court can adopt the provisions of international human rights conventions, not before.

Another aspect that the majority of the Court cannot overlook is the fact that it is not enough to invoke a series of international instruments ratified by Costa Rica and to cite their provisions, alleging an eventual violation, for it is necessary that whoever does so demonstrate that the provision effectively says what it says. Nor is it legally appropriate to cite provisions of international conventions that refer to or regulate other matters, since those cited must refer to the subject matter of the litis, as the principle of specialty governs in these areas.

In the case sub lite, in the unconstitutionality action No. 19-024589-0007-CO, an infringement of Articles 26 of the American Convention on Human Rights, 14 of the International Covenant on Civil and Political Rights, and 9 of the International Covenant on Economic, Social and Cultural Rights is alleged, although later, when developing the respective grievances of unconstitutionality, express reference is only made to Article 26 of the American Convention on Human Rights, not so regarding the other two articles, concerning which no greater argumentative development is made, except for a generic mention of the right to social security. As for Article 26 of the American Convention on Human Rights, its proper understanding in the sub judice has already been set forth—in this same section. Regarding the right to social security, what has already been indicated—also in this section, as well as in the previous ones—must be reiterated, in the sense that the challenged provision—as part of the reform made to the Judicial Branch Retirement and Pension System, and with the effective and proven purpose of guaranteeing its financial and actuarial sustainability, supported by the respective technical criteria—far from infringing such right, effectively guarantees it. The same must be indicated regarding action No. 22-014613-0007-CO, in which the infringement of Article 9 of the International Covenant on Economic, Social and Cultural Rights is also alleged.

On the other hand, both in the filing brief for unconstitutionality action No. 19-024589-0007-CO and for unconstitutionality action No. 22-014613-0007-CO, an infringement of Conventions 102, 118, 128, and 157 of the International Labour Organization is alleged. However, in the case of the first action, the truth is that no significant analysis or argumentative development is made, properly individualized, regarding the alleged infringement of such conventions. Only a generic mention is made that the International Labour Organization has indicated the need to have adequate technical criteria to be able to make a variation in a pension system. A similar situation occurs with the second action, since, despite a generic allegation regarding the infringement of such instruments, ultimately the plaintiffs' reproaches are limited—essentially—to alleging that Conventions 102 and 128 contemplate the right to retirement and that Conventions 118 and 157 provide that States must "endeavor to participate in a system for the conservation of acquired rights and rights in the process of acquisition." It is argued, to that effect, that the challenged transitional provision was enacted without protecting rights in the process of acquisition in a staggered and proportionate manner and without a technical study that so required, making the legislative decision arbitrary. In which case, all these reproaches were already duly resolved in the preceding sections. As indicated, the right to belong to a pension system cannot be confused with the non-modification of retirement and pension benefits granted to a person at a given moment, which may be reasonably modified when actuarial studies so require. In the case sub lite, both the general reform to the Judicial Branch Pension and Retirement System by means of Law No. 9544, as well as, specifically, the 18-month period provided for in its Transitory Provision VI, had an objective and reasonable justification, supported by a technical study, in order to give financial and actuarial sustainability to the respective system.

As a corollary of the foregoing, the action must also be dismissed with regard to this section.

• K)THE VIOLATION OF THE PRINCIPLE OF EQUALITY.

The principle of equality implies, as the Constitutional Chamber has recognized in multiple rulings, that all persons who find themselves in the same situation must be treated equally. On the other hand:

"The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given disregarding the possible differentiating elements of legal relevance that may exist; or what is the same, not every inequality necessarily constitutes discrimination. Equality, as the Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification. But additionally, the cause of justification for the act considered unequal must be evaluated in relation to its purpose and effects, such that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. That is, equality must be understood in light of the circumstances present in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions in different situations, with diverse treatment. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality" (see votes No. 1770-94 and No. 1045-94).

The point is to determine whether this differentiation of treatment is founded on constitutionally legitimate ends, whether it is objective—that is, whether it is supported by a different factual premise—, whether it is based on relevant differences (tertium comparationis), whether proportionality exists between the constitutional end and the differentiated treatment applied, the motive and the content of the act, and whether that treatment is suitable for achieving the intended end.

In the first scenario, the difference in treatment presupposes that it is based on constitutionally legitimate objectives, which entails three consequences for the intended end. First, laws cannot pursue ends that contradict Constitutional Law or the norms found in international Human Rights instruments. Second, when ends are pursued that are not constitutionally protected, but which do not contradict its values and principles, the differentiation of treatment must be strictly monitored in relation to the factual premises that justify it and the end it pursues. Finally, when a constitutionally protected end is pursued, the differentiation of treatment will be valid as long as it respects the criteria of reasonableness, proportionality, and is necessary.

The Constitutional Chamber, in vote No. 4883-97, expressed the following regarding this principle:

"The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given disregarding the possible differentiating elements of legal relevance that may exist; or what is the same, not every inequality necessarily constitutes discrimination. Equality, as this Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification. But additionally, the cause of justification for the act considered unequal must be evaluated in relation to its purpose and effects, such that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. That is, equality must be understood in light of the circumstances present in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions in different situations, with diverse treatment. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality.' (Judgment number 6832-95 of 16:15 hours on December 13, 1995)." (The bolding does not correspond to the original).

Sufficient reasons exist to maintain that there is no violation of the principle of equality and non-discrimination, as alleged. First, there is no doubt that with the challenged provision, the legislator seeks to satisfy a legitimate constitutional end, which is to give sustainability to the special retirement and pension system of the Judicial Branch and thereby guarantee the fundamental right of persons to a dignified retirement or pension. Second, as established by the actuarial study in deliverable six, there is an objective and reasonable justification for the Legislative Assembly to have adopted the provision now challenged, hence it also cannot be legally maintained that the principle of equality and non-discrimination is violated. Third, there is no doubt that those who fall within the scenario of the eighteen months from the entry into force of the law are in a different situation from those who do not, and therefore, when faced with different factual situations, the legal treatment must be different. Finally, following the jurisprudential thesis of this Chamber, to the effect that whoever invokes a violation of the principle of equality and non-discrimination bears the burden of conducting the reasonableness test, it does not emerge from any part of the arguments provided by the plaintiffs that a violation in this direction is demonstrated.

In particular, the plaintiffs (action No. 19-024589-0007-CO) allege that in the case of regulatory modifications to other retirement systems existing in Costa Rica, transitional provisions with longer or staggered periods had been included, unlike what occurred in the case of Transitory Provision VI of Law No. 9544, which established a single period of 18 months, which they deem excessively short. They allege that this is discriminatory. However, what was previously indicated in the preceding sections must be reiterated, in the sense that the cited 18-month period was reasonably set in light of the specific financial situation of the Judicial Branch Pension and Retirement System. Nor can it be intended that in the case of the different pension systems and their eventual modifications, they be regulated in a strictly identical manner, with total independence or abstraction from the particularities of each system. This Chamber has specified—on this topic—that:

"(...) the existence of diverse pension systems—including, specifically, the Judicial Branch pension and retirement system—with 'its special regulations—in pursuit of guaranteeing the very existence of the system, as well as its own administration—' (vote no. 2020-02841 of 9:40 hours on February 12, 2020) and with its 'own legal rules and criteria for granting the constitutional right to retirement and pension' (vote no. 2084-96 of 14:30 hrs. on May 7, 1996) is not unconstitutional. Criterion reiterated, recently, in vote no. 2021-011957 of 17:00 hours on May 25, 2021, in which the constitutional validity of the existence of an exclusive system for Judicial Branch employees was confirmed, as a special system, independent and different from the basic one, with its own eligibility requirements in order to guarantee its solvency and functioning. Which does not imply an infringement of the principle of equality." (vote No. 2022-010593).

The plaintiffs (action No. 19-024589-0007-CO) also claim they were given discriminatory treatment compared to the officials working at the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), insofar as—as alleged—the latter were declared an unrestricted right to recognition of their retirement conditions, even when faced with repealed legislation, regardless of the time it took them to meet those requirements. This, in Transitory Provision II of Law No. 9544. However, this Chamber has already ruled on this topic in the supra-cited vote No. 2021-11957, in which it was resolved that:

"LXIII.—Drafted by Magistrate Hernández López. Regarding the claim against Transitory Provision II of Law No. 9544.—Transitory Provision II of Law number 9544 stipulates the following:

"TRANSITORIO II.—For those employees of the Supreme Electoral Tribunal referred to in Article 242 of Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its amendments, who have contributed to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, this reform shall not be applied to their detriment and their rights acquired in good faith shall at all times be respected. Nevertheless, they are authorized to request, under the terms set forth in Articles 226 and 234 of this law, the return of the employee, state, and employer contributions made to the Judicial Branch Retirement and Pension Fund, so that they may transfer to the Disability, Old Age, and Death Pension System, administered by the Caja Costarricense de Seguro Social (CCSS), if they so wish." The plaintiffs argue that discriminatory treatment is given to the detriment of judicial employees with regard to the treatment of acquired rights compared to the employees of the Supreme Electoral Tribunal who contribute to the Judicial Branch Pension and Retirement System. They contrast the different treatment given by the legislator regarding the issue of acquired rights, since, without any objective reason to justify it, a differentiated and advantageous treatment was provided for those employees who, belonging to the Judicial Branch Pension and Retirement System, work at the Supreme Electoral Tribunal, as they were declared an unrestricted right to belong to that system, but on the basis of the repealed legislation, regardless of the time it took them to meet those requirements. It is said that the transitional provision is totally discriminatory by distinguishing between the affiliates of the Judicial Branch Retirement and Pension System, such that some of them are those who work for the Judicial Branch and others are those who work for the Supreme Electoral Tribunal, but the latter will have greater benefits than the others. Regarding this differentiation, the plaintiffs question the necessity of this difference, requesting then that the unconstitutionality of Transitory Provision II of Law number 9544 be declared for violation of the principle of equality and non-discrimination contained in Article 33 of the Political Constitution. Regarding this specific aspect, there is no pronouncement from the respondents in this action.

LXIV.—Justice Hernández López continues drafting. The issue raised here was reviewed by the Chamber on the occasion of the facultative legislative consultation presented at the time by members of the Legislative Assembly regarding the bill that gave rise to Law number 9544. In judgment 2018-5758, in which response was given to said consultation, the Chamber stated the following:

"XX.—Regarding Transitory Provision II of the consulted bill.

Finally, the consultants consider that Transitory Provision II of the draft bill under consultation is contrary to constitutional numeral 33, insofar as it establishes a privilege for the officials of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones). That provision states the following:

TRANSITORIO II- For the officials of the Supreme Electoral Tribunal referred to in Article 242 of Law No. 7333, Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), of May 5, 1993, and its amendments, who had contributed to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) prior to the entry into force of this law, this reform shall not be applied to their detriment, and their rights acquired in good faith must be respected at all times. Nevertheless, they are empowered to request, under the terms set forth in Articles 226 and 234 of this law, the return of the worker, state, and employer contributions made to the Judicial Branch Retirement and Pension Fund, so that they may transfer to the Disability, Old Age, and Death Pension Regime (Régimen de Pensiones, Invalidez, Vejez y Muerte), administered by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS), should they so desire.

Before analyzing the alleged defect, the Chamber considers it necessary to refer to the concepts of acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas). In this regard, in judgment number 2765-97 of 15:03 on May 20, 1997, it was ordered, as relevant, the following:

"The concepts of 'acquired rights' and 'consolidated legal situations' appear closely related in constitutional doctrine. It is fair to state that, in general terms, the former denotes a circumstance consummated in which a thing—material or immaterial, whether a previously foreign good or a previously non-existent right—has entered (or had an impact upon) the person's patrimonial sphere, such that the person experiences an advantage or verifiable benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial gain, but rather a state of affairs fully defined in terms of its legal characteristics and its effects, even if those effects have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still endure or not, but rather that—by virtue of a legal mandate or a judgment that has so declared—a clear and defined rule has already emerged in legal life, connecting a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then...,' that is to say: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that, necessarily, the conditioned effect must also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects—rendering it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty." Now, from the study of the questioned norm, it emerges that it does not present the alleged defect, since, contrary to what the consultants seem to understand, it does not seek to create a differentiated situation in favor of the officials of the Supreme Electoral Tribunal with respect to the other contributors to the Fund, but rather only to protect those rights acquired in good faith. In that sense, the transitory provision does not in any way provide that the reform made to the Pension and Retirement Regime of the Judicial Branch (Régimen de Pensiones y Jubilaciones del Poder Judicial) is not applicable to the officials to whom it refers, for they will also be affected by it, proof of which is the fact that the article itself grants them the possibility of transferring to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund, should they so desire. By virtue of the foregoing, the Chamber rules out that the questioned numeral grants the servants of the Supreme Electoral Tribunal an acquired right to remain under the current conditions of the Pension and Retirement Regime of the Judicial Branch, and therefore the allegation of the consultants is dismissed." (2018-5758 of April 12, 2018) This time, those making the claim represent a large number of the participants in the Judicial Branch Retirement and Pension Fund and provide reasons and arguments to maintain that, contrary to what was understood by the Chamber at that time, the text does create a different treatment that merits being reviewed again on the understanding that it contravenes the principle of equality.

LXV.- Drafted by Magistrate Hernández López. Regarding Transitory Provision II of Law 9544 and the principles of equality and non-discrimination. As a first important element to support this decision, it must be borne in mind what Article 242 of the Organic Law of the Judicial Branch number 7333 provided prior to its reform, since the challenged Transitory Provision II refers to that numeral:

"ARTÍCULO 242.- The Magistrates of the Supreme Electoral Tribunal and the Director of the Civil Registry who, prior to their election, have been lawyer judicial officials with more than five years of service, may remain protected under the Retirement and Pension Plan of this Law, and the time they serve in those bodies shall be computed as if it were served in the Judicial Branch. Those officials shall continue contributing in the manner required by Article 236 of this Law. Said Magistrates shall have the same benefits as the Magistrates of the Supreme Court of Justice, and the Director of the Registry, the benefits indicated for judges, under equal circumstances. The State, in those cases, must pay for those officials the fee indicated in subsection 2 of cited Article 236, on the sum allocated in the general budget of expenditures to cover their salaries in the Supreme Electoral Tribunal and in the Civil Registry. This fee shall be deposited as indicated in the referred subsection 2." The review of the background shows that this norm was included in the general reform carried out in 1993 to the Organic Law of the Judicial Branch and incorporated an exceptional case for those lawyer judicial officials who, with at least five years of service in the Judicial Branch and contributing to the retirement and pension regime of the Judicial Branch, were appointed as Magistrates of the Supreme Electoral Tribunal or to the position of Director of the Civil Registry. That exception consisted of opening the option for said public servants to be able to remain as participants in the Judicial Branch Retirement and Pension Regime—to which they had been contributing for at least five years—provided they continued paying their corresponding fee, and it was established that they would have the same benefits as the Magistrates of the Judicial Branch and of a judge in the case of the Director of the Civil Registry. The State was also ordered to budget and deposit the moneys corresponding to its contribution, according to the salaries received in the Supreme Electoral Tribunal. It is concluded from that text that those who opted at the time to remain as participants in the Judicial Branch regime did so under the same terms and conditions as the other participants, that is, on the one hand, "Those officials shall continue contributing in the manner required by Article 236 of this Law…" in the words of the norm, and on the other, with respect to the regime's benefits, it was ordered that: "Said Magistrates shall have the same benefits as the Magistrates of the Supreme Court of Justice, and the Director of the Registry, the benefits indicated for judges, under equal circumstances." Now, upon the issuance of Law number 9544, which extensively modified the Judicial Branch Retirement and Pension Regime, the Legislature, among other things, increased the burdens on participants and reduced the benefits to be received, all in favor of the regime's sustainability. And a Transitory Provision II was also introduced, which maintains open the possibility granted in 1993 for the aforementioned servants to transfer their contributions to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund, or to remain as participants in the Judicial Branch regime; however, if they decided to remain as participants in the Judicial Branch Fund, a condition is added that does not exist for the other Fund participants, which is that they would have in their favor the fact that: "this reform shall not be applied to their detriment, and their rights acquired in good faith must be respected at all times." It is on this last point that the claimants find a discriminatory provision, for they maintain that for them, as judicial servants, Transitory Provision VI of Law number 9544 governs, which defines the situation of active judicial officials who have been contributing to the Fund and which distinguishes those who remain covered by the repealed law (that is, those to whom the new regulation shall not be applied to their detriment) and those to whom the new regulation shall be applied without mitigation:

"TRANSITORIO VI- Judicial servants who meet the requirements to acquire the right to a pension as established in the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the promulgation of this law, may retire under the provisions established in the mentioned text." It is concluded from the foregoing that—for the purposes of determining the applicable regulation—two separate categories of active servants participating in the fund were created: one composed of judicial servants who "meet the requirements to acquire the right to a pension as established in the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the promulgation of this law" and who may retire under the requirements of the previous regime, and the other composed of the other judicial servants who do not meet that condition, for whom the application of the new regulation proceeds. However, the interested parties affirm, the servants mentioned in Article 242 of the repealed Law who decide to remain in the Judicial Branch Retirement and Pension Regime will receive a different treatment, as they were placed in a third, different category reflected in the phrase from Transitory Provision II of Law number 9544: "this reform shall not be applied to their detriment, and their rights acquired in good faith must be respected at all times." LXVI.- Continues drafting Magistrate Hernández López. In the terms set forth, the Chamber concludes that the norm is not necessarily unconstitutional, but it is confusing and, therefore, must be interpreted according to what was established in the precedent of the Chamber collected in judgment number 2018-5758, for there the Court understood that a difference in treatment in favor of the servants mentioned in Article 242 of the Organic Law of the Judicial Branch could not be given, since:

"…contrary to what the consultants seem to understand, it does not seek to create a differentiated situation in favor of the officials of the Supreme Electoral Tribunal with respect to the other contributors to the Fund, but rather only to protect those rights acquired in good faith. In that sense, the transitory provision does not in any way provide that the reform made to the Pension and Retirement Regime of the Judicial Branch is not applicable to the officials to whom it refers, for they will also be affected by it, proof of which is the fact that the article itself grants them the possibility of transferring to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund, should they so desire." (Cited judgment number 2018-5758) Thus, the majority of this Court agrees that the correct interpretation of the phrase "this reform shall not be applied" would lead to the understanding that it refers to persons who have consolidated their right to retirement or a pension, but not when the active person has not met the retirement requirements, for to the latter, the reforms introduced in the law under challenge are applied in their entirety; hence, the persons who fall into this latter category are in the same conditions as the active workers of the Judicial Branch, and therefore there is no breach of the principle of equality.

Furthermore, it must be noted that the simple mention and reference to acquired rights in the cited Transitory Provision II is not constitutionally illegitimate or contrary to the principle of equality if it is understood that said expression must be comprehended in the context and sense described in the pertinent recital (considerando) of judgment 2018-5758, that is, that the servants mentioned in the disputed Transitory Provision II enjoy acquired rights as participants in the Judicial Branch Retirement and Pension Fund, but with the same scope and on an equal footing with the other participants who work directly for the Judicial Branch. Therefore, the simple statement that the acquired rights of the servants mentioned in the disputed transitory article II shall be respected has not created a different category vis-à-vis the other Fund participants, because by constitutional imperative, the acquired rights of all participants without exception, as the case may be and even if not expressly stated, must be respected under the terms and conditions that this Court has indicated through its jurisprudence for pension matters. In that specific sense, the mere mention in the abstract of respecting the acquired rights for a group of participants does not at all entail a real change in their rights and obligations that distinguishes them from the other participants, as set forth in legislative consultation 2018-5758." L) VIOLATION OF THE DEMOCRATIC PRINCIPLES, SOLIDARITY, LEGAL CERTAINTY (SEGURIDAD JURÍDICA), GOOD FAITH, EQUITY, TRANSPARENCY, RELATIVE INTANGIBILITY OF PATRIMONY, NON-CONFISCATION, AND EQUALITY BEFORE PUBLIC BURDENS. The claimants also allege an infringement of such principles; however, from a comprehensive reading of the two initial briefs, it can be verified that, ultimately, their allegations revolve around the same reproach, insofar as they allege that an abrupt, severe, discriminatory, and arbitrary change occurred regarding the requirements and benefits of retirement, which seriously affects their life project, despite being a few years away from acquiring the concrete right to a pension. However, such allegation has already been analyzed and dismissed in the previous sections, upon concluding that the action of the Legislative Assembly has not been arbitrary or lacking in sense, but rather, quite the opposite, it has validly contributed to giving sustainability to the retirement regime of the Judicial Branch, in due adherence to the constitutional principles of proportionality and reasonableness and in opportune safeguarding of the right to social security itself. It has also been considered that the principles of legitimate trust have not been infringed, nor have the rights in course of acquisition of judicial workers who had 20 or more years of belonging to the special regime been violated, given that by setting the 18-month period in Transitory Provision VI, the Legislative Assembly adhered to the repeated precedents of this Court and acted within reasonable parameters, with due and sufficient support in the technical criteria incorporated into the legislative file.

• M)COLOPHON.

In short, it must be reiterated that the majority of this Court, in the above-cited judgment No. 2021-11957, already decided that the reform to the retirement regime of the Judicial Branch—carried out through Law No. 9544 of April 24, 2018—and, in general, the modification to the requirements and conditions imposed on judicial servants to avail themselves of ordinary and early retirement, far from being arbitrary, capricious, unfounded, or discriminatory, responded to the real need to guarantee the solvency of the Judicial Branch Retirement and Pension Fund, and also that such changes were made within "the legitimate constitutional framework of action of the legislator in retirement matters," based on "adequate technical support." The majority of this Court concluded that such modifications in the requirements and parameters for granting pensions—both ordinary and early—to judicial servants were constitutionally valid, as reasonable and proportionate measures to guarantee the solvency, stability, and permanence of the fund, in light of the technical criteria provided to the respective legislative file. It stated, in summary:

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

In full consonance with the foregoing, it must be insisted—once again—that the 18-month period provided for in the challenged transitory provision is not only based—reasonably—on the extensive jurisprudence of this Court on this subject, but also on the technical criteria incorporated into the legislative file and, in short, is coherent or consistent with the ultimate purpose of the reform, of ensuring the financial solidity of the regime and the right to retirement of judicial servants.

VIII.- DISSENTING VOTE OF MAGISTRATE CRUZ CASTRO.- The variation of the conditions of the retirement regime must respond to criteria of reasonableness and proportionality, in accordance with technical criteria.

Pursuant to the reasons indicated below, I consider that this action must be declared well-founded. I consider that, to be in accordance with Constitutional Law, the transitional regime should have covered judicial servants with twenty years or more of service in the Judicial Branch. Furthermore, I consider that the bill that gave rise to the law in question contains substantial procedural and substantive defects.

A. The absence of technical criteria in the legislative decision violates the constitutional principle of technical reasonableness.

The claimants are correct in their allegations; in this case, there has been a procedural violation due to the lack of technical criteria to proceed with a time limit in a restrictive transitory norm concerning the right to a pension (violation of the constitutional principle of technical reasonableness), and in addition to that, a violation of the principles of the right to a pension, the principle of progressivity, and the principle of equality; all as explained below. There must be prudence and good judgment on the part of the legislative power when reforming retirement systems, because this is one of the neuralgic components of the social state.

1.-) In constitutional jurisprudence, this Chamber has been issuing various resolutions laying the foundations of what is understood by the Constitutional Principle of Technical Reasonableness, defined as the proportionality between the means chosen and the ends proposed, which makes it possible to prevent the law from being irrational, arbitrary, or capricious, but also, that the selected means have a real and substantial relationship with their object (see resolution No. 1992-1739[[1]], No. 2018-15966[[2]], No. 2021-11957[[3]], among others). Said principle is thus constituted as a constitutional parameter (see resolution No. 2001-732[[4]]). A parameter that allows concluding that the absence of technical criteria constitutes an essential defect of legislative procedure (see resolution No. 2012-13367[[5]] and No. 2017-11714[[6]], the latter when it states: "this Court has required in environmental matters the need for there to be technical studies to reduce protected areas, and has concluded that this omission constitutes a defect of an essential nature in the legislative procedure."). The principle of technical reasonableness applies both to powers of the Executive Branch (see resolution No. 2023-012575[[7]] where it was considered that Decree 43810 "Reform of the Refugee Persons Regulation", by establishing a maximum period of one month to present the application for international protection as a refugee person, from the day of their entry into Costa Rican territory, accredited a transgression of the principles of reasonableness, proportionality, and necessity) and to the Legislative Branch (see resolution No. 2017-11714 where it was considered that the bill "Reform of the National Teachers' Pension and Retirement System (Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional)", legislative file number 17.561, was unconstitutional … since it lacks a study that technically and scientifically determines the real impact … a defect that was considered of an essential nature of the legislative procedure) and regarding various matters, among them environmental matters (see on the constitutional principle of objectification of environmental protection or principle of linkage to science and technique in resolutions No. 2022-23307[[8]] of 13:40 on October 25, 2022, No. 2010-000075[[9]] of 15:01 on January 6, 2010, No. 2012-013367[[10]] of 11:33 on September 21, 2012, No. 2013-005964[[11]] of 15:05 on April 30, 2013, and No. 2018-007978[[12]] of 12:45 on May 18, 2018).

It has been established that, in certain matters, legislative powers must be linked to the univocal rules of science or technique, elementary principles of justice, logic, or convenience. This constitutes a limit on the arbitrary exercise of legislative powers. Clearly, it is not that a technical study is required in any and all cases of the legislative function, for that would empty the principle of free configuration of the legislator of its content. Not all decisions of the legislator must entail a technical study, since such a situation would annul the discretion of the legislative body, subjecting it to the criterion of third parties who lack democratic representation. However, this Chamber has specified that in certain matters, that technical or scientific study is necessary, and therefore, it has been understood that the requirement of such technical support is part of the constitutional principle of technical reasonableness. Thus, this Chamber has said that "Technical studies are necessary when there is an express norm regarding it (for example in environmental matters) or when the matter requires them, under penalty of transforming discretion into arbitrariness." (see resolution No. 2018-00230[[13]] of 10:40 on January 19, 2018). Now, regarding the matters in which it is required, in addition to environmental matters, one can point, for example, to the application of the principle of technical reasonableness in pension matters; see in this regard resolution No. 2017-11714, where the following was established, regarding the bill "Reform of the National Teachers' Pension and Retirement System", legislative file number 17.561:

"In this matter, it is necessary that the Legislative Assembly have technical studies that demonstrate that the entry into force of the Law will not affect (…)" (emphasis does not correspond to the original) Likewise, since resolution No. 2379-96, this Chamber had been applying the mandatory nature of technical support for modifications to pension regimes:

"… that possibility of modification that the State has agreed to in its favor, finds limits not only from the Political Constitution but also from International Law, among which those set forth in Convention No. 102 of the International Labour Organization concerning the minimum standard of social security stand out, which indicates, as relevant herein, that the benefits granted in application of the cited Convention and the administration expenses are backed by technical studies and are not implemented or modified by a political, arbitrary, or whimsical decision of the Administration, benefits among which is the amount of contribution for the pension regime by the employee and by the State as such and as employer, and which obligates the basing of those variations on actuarial studies related to the solvency of the regime because they affect it."[[14]] (emphasis does not correspond to the original) In addition, this Chamber has indicated that all regressive measures with respect to the right to a pension and retirement require technical studies and, furthermore, that the burden of proof for such studies lies with the public authorities. This has been stated in repeated jurisprudence:

"XV. (…) it is the public powers that bear the burden of proving that the cutbacks are justified in light of the full set of socioeconomic rights, and that in the event that an administration has the need to adopt regressive measures with respect to the right to a pension and retirement, it must have a technical study regarding the effects these may have on the rights of those affected and the regime, as well as that no less burdensome measures could have been taken, (…)" (see resolution No. 2018-5758[[15]], criterion ratified in resolutions No. 2021-11957[[16]], No. 2022-8712[[17]], No. 2022-10593[[18]]).

As this Chamber has indicated (see resolution No. 2019-00234[[19]]), all of the foregoing also finds support in Article 71.3 of Convention 102 of the International Labour Organization (ILO), where it states that each State has the responsibility to guarantee that any modification to social security benefits has a prior actuarial study:

"Article 71 (…)

3. The Member shall accept general responsibility for the due provision of the benefits provided in compliance with this Convention, and shall take all measures required for this purpose; it shall ensure, where appropriate, that the necessary actuarial studies and calculations concerning financial equilibrium are made periodically and, in any event, prior to any change in benefits, the rate of insurance contributions, or the taxes allocated to covering the contingencies in question." Likewise, this Chamber referred to what was decided by the European Committee of Social Rights of the Council of Europe and by the Colombian Constitutional Court, in cases where the adoption of regressive measures in the area of ESCR (economic, social, and cultural rights) is admitted, stating that:

"XXVIII.-Continues drafting by Magistrate Araya García. (…) the constitutional conformity of measures to cut or modify conditions in pension matters requires that, prior to the determination and as an inescapable part of their basis, there must be technical support regarding the effects of the measures, and the affected parties must have been heard, because this concerns the income they receive currently, as a means of subsistence and upon which a large part of their life project and their right to a dignified old age is based." (resolution No. 2021-11957) In reinforcement of what this Chamber has indicated regarding the burden of technical proof as an obligation of the State, there is also the Miranda Cortez Case, No. 12,249 of the Inter-American Commission on Human Rights, where it was stated:

"105. It bears noting that the progressive development of economic, social, and cultural rights (ESCR) entails for States parties to the American Convention the obligation to not take regressive measures in relation to such rights. In particular, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has indicated that regressive measures adopted in relation to the right to health are not permissible. (…) Likewise, the Committee held that the State in question has the burden of proving that those measures are duly justified by reference to the totality of the rights enunciated in the Covenant in relation to the full utilization of the maximum available resources of the State Party." (see United Nations, Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States Parties' Obligations, paragraph 1 of article 2 of the Covenant, adopted at the Fifth Session, 1990) 2.-) Assuming the premises that have been set forth, upon examining the law challenged in this action, it must be stated that this Chamber already proceeded to examine a similar allegation raised against the entirety of the law.

In this regard, this Chamber performed a GENERAL assessment of said technical support in Resolution No. 2021-11957, where the arguments of unconstitutionality presented against the entirety of Law No. 9544 were examined. Thus, for example, in Considerando XXVIII, the following was stated: “the normative proposal agreed upon by the Legislative Assembly received the endorsement of the technical entity, which pointed out the technical propriety of that finally adopted design through report IICE-186-2017…”. Subsequently, regarding the technical support for the reference salary used to calculate the pension, it determined that: “contrary to what is asserted in the initial filing, a technical criterion does exist that endorses the parameter set by the bill with respect to the reference salary for calculating the pension; the Court dismisses the existence of the alleged defect.” (see Resolution No. 2021-11957). However, it is necessary to express TWO important observations on the matter:

- Firstly, the technical support to which the Chamber alludes was for a project that was NOT the one finally approved. Consider the dates of each of the six reports of the “Actuarial Study of the Judicial Branch Retirement and Pension Fund” conducted by the Institute for Research in Economic Sciences (IICE): Report 1 of August 4, 2016, Report 2 of November 14, 2016, Report 3 of February 1, 2017, Report 4 of March 24, 2017, Report 5 of May 22, 2017, and Report 6 of July 4, 2017. This, compared to the date of the first debate, which took place during Extraordinary Session No. 14 of October 30, 2017, the text of which incorporated several substantive and reiteration motions that changed its content.

- Secondly, this Chamber has NOT made any PARTICULAR consideration regarding the technical criterion supporting Transitory Provision VI of the challenged law, which refers to those who could remain covered by the pre-reform regime. Thus, said IICE actuarial study does NOT refer specifically to the regressive measure adopted in the transitory provision challenged in this action, as it states in this regard: “An increase in the transitory period postpones the adjustments and therefore negatively affects the Fund’s income. To properly assess the effect of an increase in this transitory period, it would be necessary to conduct a complete actuarial analysis.” (see page 73 of Product No. 6, IICE). Consequently, it is confirmed that no technical study was conducted to assess the increase in the transitory period, a situation that prevented verification of whether a less burdensome measure existed than the one adopted in said transitory provision. Therefore, what was indicated by this Chamber, in the sense that the law in question had a technical study, does NOT apply specifically to the transitory provision.

Furthermore, from what transpired during the hearing held for this action (on October 5, 2023), it was demonstrated that the challenged Transitory Provision lacked any technical criterion whatsoever. This is evidenced by the following:

“The IICE study analyzed the actuarial situation of the Judicial Branch Retirement and Pension Fund (FPJPJ) according to the situation in effect as of December 31, 2015” (official communication IICE-103-2023 of June 9, 2023, delivered to the Chamber on June 9, 2023). “The results of the IICE study from the University of Costa Rica present the possible actuarial effects of various proposals, with information up to December 2015. However, the reform in Law 9544 was not evaluated in any of these analyses” (Official Communication, Minutes of the Ad-hoc Commission EMat-50-2023 of August 11, 2023, submitted to the Chamber on August 25, 2023). An official communication from the UCR delivered to the Chamber on October 5, 2023, states:

“In this sense, we wish to reaffirm what was stated by the School of Mathematics, in that the cited law did not adhere at the time to any actuarial model to establish the transitory provision being challenged. Therefore, modeling would be necessary if one wished to have certainty of the technical security for establishing said transitory provision.” 3.-) Another aspect requiring analysis of the technical reasonableness of Transitory Provision VI refers to an important principle: the burden of proof for restrictive or regressive measures regarding social rights must come from the Public Administration itself, in this case, from the Legislative Assembly. While it is true that this Chamber indicated that: “a declaration of unconstitutionality in this case requires the submission of evidentiary elements capable of demonstrating the lack of proportionality and reasonableness in employing the 18-month period established by constitutional jurisprudence, starting from the effective date of the reform, for the extension of the coverage scope of the previous pension regime.” (Resolution No. 2021-11957). However, if one intends to be consistent with what was established in prior jurisprudence, I consider it clear that, on one hand, a technical criterion should have been obtained prior to the approval of Transitory Provision VI (as stated in the referenced vote No. 2021-11957: “the constitutional conformity of measures that cut or modify conditions in pension matters requires that, prior to the determination and as an unavoidable part of its justification, technical support regarding the effects of the measures must be available.”), and on the other hand, the burden of proof should have been provided by the Legislative Assembly, which was not done, because no such technical criterion exists, as they themselves acknowledged. It is the public authorities who bear the burden of proving that the cuts are justified in light of the full set of socioeconomic rights, and that, should an administration need to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects these measures may have on the rights of the affected parties and the regime, as well as demonstrating that no less burdensome measures could have been taken. It is confirmed that the Assembly lacked a particular technical criterion for the challenged Transitory Provision VI, according to the response to the evidence requested by this Chamber and to the specific question posed to the President of the Parliamentary Body:

“Constitutional Chamber of the Supreme Court of Justice. San José, at ten hours forty-five minutes on May twenty-sixth, two thousand twenty-three.

As evidence for a better resolution, let it be requested:

• A)Having reviewed the report of the President of the Legislative Assembly … it is requested: To indicate and provide to this Chamber, specifically, the technical criterion on which the Legislative Assembly relied to establish the 18-month period indicated in Transitory Provision VI of the Law Reforming the Judicial Branch Retirement and Pension Regime, No. 9544. Where the reasonableness of that period is demonstrated.

(…)

The undersigned… in my capacity as President of the Legislative Assembly of the Republic of Costa Rica, submit, in time, the required report.

(…)

In the specific case of Transitory Provision VI of Law 9544, the legislator establishes an 18-month period, … after the extensive analysis that the legislator conducted in accordance with the discussion of the bill recorded in the minutes… the 18-month period is considered reasonable as it is neither an excessively short nor an excessively long period. // The attribution of this period responds to the authority of the Legislative Assembly in the exercise of the function of enacting laws… where it enjoys broad freedom of configuration to develop the constitutional program established by the Constituent Power.

(…)

It is considered that in the case consulted, the Assembly took into consideration that this was not an arbitrary, capricious, or untimely period, but rather a reasonable period…” This must be understood as such, even though this Chamber, in Resolution No. 2021-11957, indicated that: “the final legislative decision to recognize only contributors with 28 and a half years of service the possibility of retiring under the previous regime did form part of the necessary technical requirements that were taken into account to design the modifications that would provide financial support to the Judicial Branch Retirement and Pension Regime. // Likewise, the 18-month period was widely supported by technical criteria, not only for reasons of legal certainty according to constitutional jurisprudence, but also for reasons of actuarial solvency.” Thus, it must be understood, because it emerges from the requested evidence and the legislative file, that there WAS NO technical criterion to support the period of the challenged transitory provision; rather, the legislative body itself was the one that considered the established period reasonable for “being neither excessively short nor excessively long,” based on legislative discretion. It is evident that asserting it is neither excessively short nor excessively long is a judgment that responds only to an assessment that appears to be common sense, but which is far from a technical criterion that reflects an analysis of all the variables at play, especially in a case where rights in the process of consolidation are being restricted or modified.

4.-) Every regressive measure concerning social rights, the right to a pension and retirement, must be supported by a technical study that meets the following requirements:

- It must be conducted prior to the approval of the regulation. - It must demonstrate the effects that the regressive measures may have on the rights of the affected parties. - It must demonstrate that no less burdensome measures could have been taken.

Note also that the Chamber has established the following substantive criteria as a reference parameter for examining the constitutional legitimacy of a regressive measure affecting ESCR (economic, social, and cultural rights):

* analyze whether the restriction of rights is “suitable” or “adequate”, * analyze whether it is “necessary” or “indispensable”, * analyze whether it is “proportionate” in the strict sense or “balanced”, * determine that no other means exist to achieve the pursued end with the same effectiveness that are less onerous in terms of sacrificing the constitutional rights subject to limitation in each case or, in other words, that no other means exists that can lead to the end and that sacrifices to a lesser degree the constitutional principles affected by the use of those means. In the words of the Inter-American Court, one must verify whether “(…) the restriction of the affected rights is equivalent to the benefits that the provision generates. If the damage produced to the legal patrimony of the citizens is greater than the constitutional benefit that the regulation is capable of achieving, then it is disproportionate (…)”.

5.-) It is observed from the legislative file that initially, a staggered transitory provision existed, but later, in the Legislative Plenary, via a substantive motion, an 18-month transitory provision was established, without greater technical support. It is also observed that the legislative file does not record how many people were close to retiring, nor how the change in circumstances would affect them, reasons for which the absence of an assessment of the impact of the regressive measure is confirmed. Thus, the first conclusion that I consider emerges from everything stated is that, upon confirming that there WAS NO technical criterion supporting Transitory Provision VI challenged here, it is clear that the preceding requirements were also not met: neither were the effects of the measure on the rights of the affected parties demonstrated; nor was it demonstrated that said measure was the least burdensome of those that could have been taken; nor that it was suitable, necessary, or proportionate; much less that the damage produced to the legal patrimony of the affected parties was less than the constitutional benefit that the regulation would achieve. Therefore, as the challenged Transitory Provision lacked, specifically, a technical criterion supporting the establishment of an 18-month period, this causes the regulation to violate a procedural requirement, and for this reason, it is unconstitutional in form. A restriction and a variation of the conditions for acquiring a right as important as retirement occur, without the technical support that would justify such modification. Contrary to what is considered in the majority vote of this Chamber when it indicates that: “an 18-month period is reasonably sufficient to protect those persons who have not yet met the requirements to acquire the right to a pension or retirement…”, I believe that it is not possible for this court to substitute the legislator by indicating generically and forever that an 18-month period in transitory provisions of laws reforming pension regimes is reasonable, as the transitory period requires specific, individualized technical support. In matters affecting fundamental rights, a period cannot be defined in the abstract without considering the circumstances of each reform. This criterion responds to a logic of common sense, which is not the acceptable parameter in safeguarding the retirement right of judicial officials. The jurisprudence of the Constitutional Chamber mentioning the 18-month period cannot be considered the sole parameter for examining the reasonableness and proportionality of transitory regimes. Note that, in any case, that jurisprudence is generic, and it cannot be considered that the same period applies to all cases of transitory regimes. The criterion applied in the majority vote ignores the singularity of the case under examination and derives a general rule, ignoring that in the cases where it was applied, differences exist that do not allow a conclusion like the one assumed to be derived, ignoring that the premises of each precedent are different. The analysis of reasonableness and proportionality must be case-by-case, addressing the particular situations of each reform. A conclusion cannot be assumed if it is not consistent with the premises.

Furthermore, what is stated in the majority vote, that the 18-month period had technical support in the report issued by the Institute for Research in Economic Sciences of the University of Costa Rica (IICE) on July 4, 2017, called Product 6 “Compilation and Final Report: Conclusions and Recommendations,” is also unacceptable, given that:

a. Said report (dated July 2017) was the technical support for the text in force at that time, which is NOT the text finally approved in October 2017 (where, in the Plenary, it underwent significant substantive modifications via motions, specifically, it was there that the 18-month transitory provision was established).

b. Said report can only be understood as support for the text of the bill at that time and not the text that was ultimately approved. If the text of the bill changed (in terms of conditions, age, amount, and others), it is logical that the Fund's solvency would be greater than what existed when the technical report was issued. Thus, the conclusions reached with a 20-year transitory period would be different.

c. Said report is incompatible with what was indicated by the representatives of the Judicial Branch Pension Board, both in the report rendered and at the hearing, where it is expressly stated “there is no risk of insolvency of the Fund by including in the transitory provision those with 20 years of service, based on the fact that the Fund would have a solvency of almost 80% with an open population, compared to the CCSS’s IVM which has 50%, thus the Judicial Branch Fund has the greatest solvency.” The majority vote ignores this updated data and assumes the criterion of a report that did not correspond to the reality of the time or to the current financial situation of the fund.

d. The official communication signed by the Superintendency of Pensions in October 2023 cannot be cited in a vote because SUPEN is not a party to the action, and therefore, its assertions could not have been contextualized or even rebutted at the hearing. It is a criterion that could not be confronted and discussed in the action’s process. The majority vote considers an opinion that was not confronted and rebutted in the action or in the oral hearing.

e. Report 6 itself indicates in its conclusions (page 73) that “To properly assess the effect of an increase in this transitory period, it would be necessary to conduct a complete actuarial analysis.” 6.-) As evidence demonstrating that the established period has had burdensome effects on the affected parties, the report submitted by the Supreme Court of Justice indicates that:

- The number of resignations that have occurred from 2018 to date totals 750. - The total number of people affected by the Law Reforming the Judicial Branch Retirement and Pension Regime is 1,292, representing 9.68% of the judicial staff. - The impact of the resignations on the Judicial Branch is indisputable in terms of the costs associated with hiring and training new staff. - The most senior employees must take on additional tasks to cover the responsibilities of the vacant position, increasing their workload and potentially affecting their performance. - It is unavoidable that the change in retirement conditions has had a negative impact on the physical and emotional health of an employee who was already planning their retirement and was prepared to do so. The additional stress and the physical and mental demands of prolonged work can increase the risk of chronic diseases and mental health problems. - A summary table shows a surge in anxiety diagnoses during the years near the reform; similarly, the increase in diagnoses related to depression that emerged after the reform under analysis was implemented should be noted. In relation to this issue, employees have expressed feelings of frustration, lack of motivation, discomfort, sadness, apathy, hopelessness, anguish, among others. Furthermore, cases of anxiety, depression, work-related stress, burnt-out worker syndrome, among others, are being treated.

In this sense, it is clear that it has not been demonstrated that the established period was the least burdensome that could have been established, rendering it unreasonable and disproportionate, besides being an unsuitable and unnecessary period. This is especially true when compared with other periods established in transitory provisions of other laws, namely:

7.-) Although having declared the unconstitutionality due to a procedural defect —as is the case here, the absence of a technical criterion to establish a restrictive measure of the right to a pension— is sufficient to grant this action, and although this makes it unnecessary for me to refer to the rest of the substantive allegations indicated by the plaintiffs, I believe that we are also facing other violations of the Law of the Constitution, such as: violation of the right to a pension in the process of acquisition for the persons who were excluded from the transitory provision without a technical criterion, a right derived from International Human Rights Law, violation of the principle of legitimate expectations (principio de confianza legítima), violation of the right to equality, as indicated below.

B.-) Regarding how rights in the process of acquisition were violated The plaintiffs indicate that the automatic application of such a severe transitory provision, never before applied to any group with consolidated legal situations in retirement matters, is contrary to the Law of the Constitution, and therefore request that the unconstitutionality be declared and that their clients be allowed to retire under the conditions prior to said reform, given the amount of time they have belonged to the regime in question. They further add that other retirement reforms have had a staggered transitory provision that allowed them to modulate their retirement expectations, a situation not permitted in the Judicial Branch. They also indicate that other constitutional courts recognize the right to differentiated treatment for persons who are close to acquiring retirement requirements and face a legislative modification, and therefore request the application of comparative law. Thus, they consider that it is not only based on protecting the retirement right that arises when the factual assumptions established by the regulations are met, but also, rights in the process of acquisition are recognized and protected, which, according to the proximity to the moment of attaining the right, require protection or guardianship from the State. The Office of the Attorney General of the Republic (PGR) indicates that, in our system, only the acquired right to retirement is recognized when all requirements have been met, while the poorly named “right of membership (derecho de pertenencia)” is merely a simple expectation, which is extinguished with the reform or repeal introduced by the new regulations that are enacted. It adds that, although constitutional jurisprudence has recognized that, in the case of contributory pension regimes, contribution gives rise to a “right of membership,” this does not make the system's rules unmodifiable. For his part, the President of the Legislative Assembly states that what is alleged by the plaintiffs, that Law 9544 contradicts the provisions of the International Labour Organization conventions, is not pertinent. He adds that the Constitutional Chamber, when resolving the facultative consultation, did not find that Law 9544 affected acquired rights and consolidated legal situations. He also does not consider that a violation of the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights has occurred, since the law does not affect social security rights. Furthermore, injury to the principles of transparency, legal certainty (seguridad jurídica), good faith, legitimate expectations (confianza legítima), relative intangibility of assets, non-confiscation, and respect for acquired rights and consolidated legal situations is rejected. In the opinion of the Supreme Court of Justice, on the three occasions the Court was consulted, a negative opinion was issued and it opposed the consulted bill, because it affects the organization and functioning of the Judicial Branch. They consider that the right to retirement should have been safeguarded with a reasonable transitory provision that was fair and based on technical and objective criteria.

In this regard, I believe the plaintiffs are correct in their allegations, and a violation of the right to a pension in the process of acquisition has occurred in this case, a right derived from International Human Rights Law; all as explained below. The significance of retirement requires specific protection when that right is in the process of consolidation. This condition cannot be ignored by protecting only the acquired right while leaving unprotected the slow process by which the employee will, after years, achieve such a condition.

Traditionally, it has been understood that Article 34 of the Constitution protects “acquired rights” and “consolidated legal situations.” However, based on what is established by International Human Rights Law related to the right to work, we can add another constitutionally protected concept: the concept of “rights in the process of acquisition.” In general terms, the concepts can be defined as follows:

In all these cases, the constitutional parameter protects, rendering intangible for the legislator, the situation of the one who obtained the right (acquired right), of the one who enjoys the situation (consolidated legal situation), or of the one who is close to enjoying it (right in the process of acquisition), for reasons of equity and legal certainty (certeza jurídica).

Regarding rights in course of acquisition, there exists diverse international regulation.

Thus, the Central American Multilateral Social Security Convention (San José), approved by Costa Rica through Law No. 5333 of August 22, 1973, Article 27 establishes:

“Article 27:

1. In the event of denunciation of this Convention, all rights acquired by virtue of its provisions shall be maintained.

2. Rights in course of acquisition, relating to periods completed prior to the date on which the denunciation becomes effective, shall not be extinguished by the mere fact of the denunciation; their conservation shall be determined by agreement or, failing agreement, by the legislation corresponding to the competent Institution.” The Convention relating to the Status of Refugees, approved by Costa Rica through Law No. 6079-A of August 29, 1977, in Article 24:

“Article 24:

1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters:

(…)

• b)Social security (legal provisions in respect of employment injury, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations: i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition; (…).” This is also recognized as a maxim, according to Article 7 of ILO Convention 118, called the Equality of Treatment (Social Security) Convention, 1962, according to which:

“Article 7 1. The Members for which this Convention is in force shall endeavour to participate (…) in a system for the maintenance of acquired rights and rights in course of acquisition, recognized under their legislation for the nationals of Members (…)” (highlighting does not correspond to the original) Likewise, Article 30 of ILO Convention 128, called the Invalidity, Old-Age and Survivors' Benefits Convention, 1967, according to which:

“Article 30:

National legislation shall, under prescribed conditions, provide for the maintenance of rights in course of acquisition in respect of contributory invalidity, old-age and survivors' benefits.” (highlighting does not correspond to the original) Furthermore, from Article 6 of ILO Convention 157, called the Maintenance of Social Security Rights Convention, 1982 (No. 157):

“Article 6 Subject to the provisions of Article 4, paragraph 3, subparagraph (a), of this Convention, every Member shall endeavour to participate with each of the other Members concerned in a system for the maintenance of rights in course of acquisition as regards each branch of social security mentioned in Article 2, paragraph 1, of this Convention for which a legislation of each of these Members is in force, in favour of persons who have been subject successively or alternately to the legislations of the said Members.” (highlighting does not correspond to the original).

Regarding the value of international conventions not ratified by Costa Rica, the value of international human rights instruments must be recalled. The Constitutional Chamber, from early jurisprudence of the 1990s, indicated that Article 48 of the Constitution – amended in 1989 – had created a new category of norms: international instruments on human rights, which have a rank not only superior to laws (by virtue of Article 7) but also superior to the Political Constitution, insofar as they provide greater protection of human rights (see rulings 1147-90, 3805-92, and also 1739-92, 3435-92, 2313-95, 2002-10693)[[20]]. However, even those international human rights instruments that have not been approved by Costa Rica have been considered as part of the constitutionality parameter or block. Thus, it has been stated:

“In this regard, it is necessary to highlight the specific reference that the Constitution now makes to 'international instruments', meaning that not only conventions, treaties, or agreements formally signed and approved in accordance with the constitutional procedure itself … but any other instrument that has the very nature of the protection of Human Rights, even if it has not undergone that procedure, is in force and applicable in the country. Thus, the Universal Declaration of Human Rights (Paris, December 10, 1948), by its character and nature, has not required the constitutional approval procedures to be understood as in force and with the normative force granted by the matter it regulates. The same can be said of the 'Minimum Rules for the Treatment of Prisoners' of the United Nations Organization, which, although they are the product of expert meetings or the work of some department of that organization, because our country belongs to it, and because they refer to fundamental rights, have the same value as any international regulation that has been formally incorporated into Costa Rican domestic law.” (ruling No. 2000-9685. Highlighting does not correspond to the original. See also ruling No. 2000-7498)[4] As this Chamber has stated when resolving another action related to the issue of pensions, this unconstitutionality action has in the background economic, social, and cultural rights, very concrete human rights, which constitute matters that must be carefully analyzed and protected by this Constitutional Court, especially when dealing with the rights that accompany older adults at very important moments of their lives (see resolution No. 2020-19274, of 4:30 p.m. on October 7, 2020[[22]]). By Ruling No. 2012-16628 of 4:30 p.m. on November 28, 2012 (ratified in prior ruling No. 2020-19274), this Chamber established, regarding international regulation on social security as a floor or minimum:

“The fact is that international regulation establishes what the jargon of social security calls, in some of the ILO documents, the social floor or social protection floor as a minimum of fundamental obligations that could be justiciable; there are indeed legal obligations not fulfilled and enforceable domestically, or once that is exhausted, at the international level. […]” The Chamber has indicated that “there is a right to the maintenance of the protection that the insured receives according to national legislation, by belonging to a regime and especially declared upon fulfilling the necessary conditions and requirements, for the enjoyment of a right of peaceful enjoyment.” (see ruling No. 2020-19274). The right to the maintenance of protection can be extended, not only to the enjoyment of a declared right, but also to the right to belong to a regime with the conditions and requirements agreed upon from the beginning. This is also related to the constitutional principle of legitimate expectations related to the principle of legal certainty and the principle of good faith, as it operates as a limit on public power that prevents undermining the trust of the administered in the sense that it should not be undermined without a reasoned basis, protecting the stability of legal situations, of acquired rights and of rights in course of acquisition. This principle, applied to this case, means that the change in retirement conditions and requirements, while they can change by decision of the legislator (since there is certainly no right to the immutability of the legal system), but, unlike what was considered in the majority vote, I consider that such change must respect the rights in course of acquisition of those who are close to fulfilling said conditions and requirements. In such a transcendental matter in the life of the working citizen, a legal distinction is required that captures the particularity of such a relevant situation, which is the regime that regulates the retirement process.

On the other hand, this Chamber has already stated that “the financial crisis is neither in itself, nor can it be, a justification for making regressive decisions.” Furthermore, “the lack of resources cannot serve as a pretext for non-compliance with them [social rights].” (see ruling No. 2020-19274). Therefore, I do not consider it appropriate that the majority vote bases the regression of conditions associated with the pension right on the crisis of the pension regime. In the same sense that this Chamber indicated in the reference resolution (ruling No. 2020-19274), a limit must be understood on the legislative power to change the conditions of a pension regime, referring to the so-called “right of belonging” which also protects rights in course of acquisition. As was stated, regarding this concept of rights in course of acquisition, the aforementioned Article 7 of ILO Convention 118, Article 30 of ILO Convention 128, and Article 6 of ILO Convention 157, conventions that, although not approved by Costa Rica, constitute part of international human rights law, and therefore, part of our constitutionality block or parameter. And this is not about giving preponderance to particular interests over general ones, as indicated in the majority vote, but rather, the general interest in its appropriate dimension includes respect for rights in course of acquisition. I do not consider it admissible to accept the argument that assumes that financial crises are above fundamental rights; to the extent that we consider this so, we would be admitting the imminent death of Constitutional Law, since in our days, practically everything can be justified by a fiscal crisis. And, it is not that I am unaware that such crises exist, but rather that fundamental rights must always have supremacy over them, it being appropriate to hold accountable those who led to such crises but not at the expense of social rights. In this sense, I cannot but disagree with the concept that the majority of this Chamber has been indicating regarding the possible social state of law, a concept that constitutes a clear regression of what should be understood as the social state of law; even the Italian Constitutional Court so understood it in Considerando 11 of ruling 275/2016, when it is understood that the budgetary balance cannot condition the satisfaction of human rights. Likewise, the ruling of the Colombian Constitutional Court (140/19) when it indicates that no public authority may invoke fiscal sustainability to undermine fundamental rights. It is worrying that such a vague and inexact concept as “possible social state of law” is postulated; that horizon, which looks like an entelechy, conditions the entire social state. There is no state of law if we assume that social rights are only admissible if they are possible. That is to say, that based on strictly fiscalist or economistic assessments, sectors with less economic and political power see their social rights reduced, restricted, or suppressed. We must reflect a great deal on these horizons that open the door to the devaluation and reduction of the social state, which undoubtedly includes the issue of the retirement regime. Even more serious if they are restricted without a specific technical criterion appropriate to the specific case.

In Comparative Law, one observes, for example, the considerations that the Colombian Constitutional Court has made in this regard, indicating that the legitimate expectations of those who aspire to retire under a specific regime must be the object of some protective consideration by the legislator, one of the ways of protecting legitimate expectations being the establishment of transition regimes, which extend the scope of protection beyond only acquired rights (see rulings C-147 of March 19, 1997, and C-428 of July 1, 2009). Unlike what is indicated in the majority vote, which errs in indicating that in Colombia no term is set to guarantee rights in course of acquisition, establishing it at 75% of contribution under the prior regime, see what was indicated in ruling of the Constitutional Court of Colombia C-789 of September 24, 2002:

“3.3. The protection of the legitimate expectations of workers and the most favorable interpretation (…) By virtue of said protection, legislative transitions must be reasonable and proportional, and therefore, the subsequent law could not disregard the protection it has granted to those who, at the time of entry into force of the pension system, had more than fifteen years of contributed work.

(…)

Therefore, it would be contrary to this principle of proportionality, and violatory of the constitutional recognition of work, for those who have completed 75% or more of the work time necessary to access the pension at the entry into force of the pension system, in accordance with Article 151 of Law 100 of 1993 (April 1, 1994), to end up losing the conditions under which they aspired to receive their pension.

To this extent, the Court will establish that paragraphs 4 and 5 of Article 36 of Law 100 of 1993 are enforceable insofar as it is understood that the paragraphs do not apply to persons who had 15 years or more of contributed work at the time of entry into force of the pension system enshrined in Law 100 of 1993, in accordance with the provisions of Article 151 of the same statute.

(…)

Therefore, persons who had contributed for 15 years or more upon the entry into force of the pension system, and are in the defined-benefit average premium regime, shall have the right to have applied to them the conditions of time of service, age, and amount of pension, enshrined in the prior regime, provided that: (…)” (own highlighting) In the case of the right to retirement or pension, the following is observed:

The right to retirement or pension is a consolidated legal situation, which is acquired when the interested party meets all the requirements established by law. The right of belonging to a retirement regime, which is the right to remain in a pension regime specific to the institution in which one works, as well as its defining elements or conditions. The right to belong to the regime implies the right not to be excluded, and that its general parameters be maintained. The pension right in course of acquisition can be located here. This right ceases to be a mere expectation of a right and is acquired from the moment one enters the retirement regime (see ruling No. 1147-90[[23]] and No. 6491-98[[24]]). Jurisprudence has recognized that contributing to a pension regime originates a "right of belonging to the regime," as stated, but it does not make the rules of the system unmodifiable" (see ruling No. 5236-99[[25]]). So it is not a mere expectation of a right, but has a higher degree of protection. The regime to which one belongs can certainly undergo reforms, but they are subject to certain limitations; basically, these reforms must have a technical basis and, furthermore, must respect rights in course of acquisition. Regarding the former, the corresponding matter has been indicated supra, and regarding the latter, it concerns the legislator taking into account those rights in course of acquisition in its transitional provisions.

This Chamber has previously indicated:

“… the retirement right manifests itself first under the name and form of the 'right of belonging to the regime' from the entry of the employee into the system until the event consisting of the fulfillment of the necessary requirements to obtain the benefit occurs. Then, it sheds that garment to be called 'right to the actual benefit,' once that indicated eventuality has occurred.” (see resolution No. 2379-96[[26]]).

It is important to emphasize the constitutional protection of the right to a pension, in its essential content. It is appropriate to exercise constitutional review of parliamentary activity and, consequently, of laws, for violating the principles of reasonableness and proportionality when they are linked to a fundamental right because this, furthermore, emptied its essential content. This Chamber has already indicated (see resolution No. 2019-00234[[27]]) that the right to retirement or pension is a consolidated legal situation, with rights in course of acquisition being violated, in the case of those officials who could technically have been included within the transitional measure and yet were not. This does not mean that all contributors or that all those belonging to the Judicial Branch pension regime in this case had a consolidated legal situation, but rather it concerns the protection of the rights in course of acquisition – derived from the right of belonging – of those who, being technically able to be included within the transitional measure, were not included. The right of belonging gives rise, in favor of contributors who were close to availing themselves of retirement, to protection of their rights in course of acquisition, under the more favorable conditions of the prior regime, rights constitutionally protected under Article 34 of the Constitution, but furthermore, under the protection of international human rights law. For this group of officials, the challenged rule allowed their right in course of acquisition to be violated, and with that, the right to retire under the prior regime that was more favorable to them.

Clearly, it is not the same situation, nor the same constitutional protection, that persons who are just beginning their contributions to the Pension Fund have, compared to those who have contributed for many years and are even a few years away from retiring. This distinction, so important in the protection of the right to retirement, is not made, in any way, in the transitional measure discussed in this action. All of which further violates the principle of progressivity of fundamental rights, since the democratic legislator is limited by fundamental rights, as this Chamber has indicated:

“Fundamental Rights bind the legislator negatively and positively. In a negative sense, they must be respected to achieve their full effectiveness, that is, they function as a barrier or a limit. In a positive sense, fundamental rights are for the constituted legislator a mandate, a guiding principle, or a program by which they must develop and configure them while respecting their essential content, that is, the minimum and non-waivable core – limit of limits – of each of these. The constituted legislator, when developing fundamental rights, must ensure their progressive intensification and extension of their effectiveness and, in general, their full effectiveness, to avoid any regressive and restrictive regulation.” (see resolution No. 2003-2794[[28]]).

All of which finds its basis in Article 26 of the American Convention on Human Rights, and what this Chamber has established in this regard:

“Article 26 obliges the signatory States to take measures at the domestic level as well as through international cooperation, with the purpose of progressively achieving the full effectiveness of the rights derived from the economic, social, educational, scientific, and cultural norms contained in the Charter of the Organization of American States.” Resolution No. 1995-03932.

C.-) Regarding the effect that the declaration of unconstitutionality of the challenged transitional measure should have had In this controversy, I consider that the declaration of unconstitutionality cannot have the sole effect of annulling the entire rule, since what is unconstitutional is not having established a transitional measure but rather a term without technical basis. Therefore, I am inclined to annul only the term of “eighteen months” established in Transitional Provision VI of the challenged rule. Now, it is evident that annulling said term is insufficient for the protection of the fundamental rights involved here; it is appropriate to indicate the additional effects that this declaration of unconstitutionality would have. Although this Chamber has indicated on previous occasions that it does not have “the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund.” Because this action contains, and the hearing conducted provided, technical elements that allow a solution to be elaborated, we proceed to indicate what term must be understood to apply for Transitional Provision VI of the challenged law. Establishing as a reasonable parameter the term established to avail oneself of early retirement, namely, the term of 20 years or more of contribution to the regime, since this would be equivalent to having contributed 66% of the total term (which was 30 years). Said term allows respecting the rights in course of acquisition and the right of belonging of those who had contributed the majority of the total term, and who were close to retiring. Furthermore, it is proportional to the life plan, reasonable according to the financial sustainability of the Pension Fund, in respect of the principle of legitimate expectations (trust that conditions will not be varied abruptly, trust that the established rules will be respected and if they change, the change will be gradual[[29]]). Thus, I consider that the challenged Transitional Provision VI must be read as follows:

“Transitional Provision VI.- Judicial employees who, at the time of entry into force of this law, have twenty years or more of service in the Judicial Branch, may retire under the protection of the provisions established in the text of Title IX of Law No. 7333, of May 5, 1993, according to the conditions in force before this reform.” I base the technical grounds for the indicated term of 20 years on the following technical criterion:

- The former President of the Fund's Administrative Board, Mr. Carlos Montero, during an appearance before the Full Court of the Judicial Branch (session No. 08-2021, of February 22, 2021, Article XVIII) stated that the Fund was in a condition to assume the retirements under the conditions prior to the reform, for persons who, at the time of the entry into force of Transitional Provision VI, had 20 years or more of service in the Judicial Branch.

- Article 29 of ILO Convention No. 102 establishes a minimum period of 20 years of residence for the granting of a pension. Initially, this Chamber interpreted this rule (see votes No. 6842-99[[30]] and No. 00-673[[31]]) understanding “residence” as belonging to a regime, to later change criteria, indicating in vote No. 2000-2091[[32]] that “residence” means habitual residence in the territory of the Member and the term “resident” designates a person who habitually resides in the territory of the Member. However, the fact is that the parameter of 20 years constitutes a valid and reasonable criterion for also understanding that 20 years may be the protection period for belonging to a regime to which one contributes.

- The Ibero-American Social Security Code (of the Ibero-American Social Security Organization O.I.S.S., signed by Costa Rica in San Carlos de Bariloche, Argentina, in October 1995) establishes in its Article 50.1, a period of twenty years of contribution as the minimum period to guarantee an amount.

- Observing the term established in the transitional provisions of other laws related to the Pension Fund, an average is found. Thus, for example, the Ley del Magisterio Nacional established a term of 20 years of belonging to the regime (Law No. 8536), while other laws establish a longer transitional term: 5 years for pensions charged to the National Budget (Law No. 9388), 54 months for the IVM of the CCSS (Regulation No. 8856); or even, merely having started to contribute places them under the protection of prior regulations in the case of TSE officials (see Transitional Provision II of Law No. 9544).

- The contribution percentage corresponding to 20 years of belonging to the regime is 66% of the previous total term (30 years), which results in a majority percentage, which exceeded the halfway mark, and which is reasonable considering the life plan of someone who has already spent the majority of their years of service contributing for a specific regime under specific conditions.

- The Transitional Provision, in its previous version (see Commission opinion of July 27, 2017), established a term of 23 years and 6 months of service to be covered, in a staggered manner, by the previous pension regulations.

- According to the evidence for a better decision, provided by the current Board of the Judicial Branch Pension and Retirement Fund, it is indicated that an increase of 10 years of service would cover 2759 persons, and whereby the Fund's solvency ratio would go from 86.29% to 79.43%, dropping 7 percentage points, the percentage always remaining within what is reasonable, which, according to what was indicated, is the case as long as the percentage remains at or above 70%.

- Considering criteria beyond the economic-financial ones, but rather of the order of social rights, this would be the greatest possible number of employees that the Pension Fund could accommodate under the pension conditions prior to the reform, and with that, more favorable to the person (principle pro personae, principle pro operario).

Finally, unlike what is done in the majority vote, I consider that Constitutional Courts must decide based on Constitutional Law, without ignoring the consequences of the rulings, but taking into consideration the effects on other fundamental rights. The issue of the consequences of the ruling is a matter of imprecise content; its content and its derivations must be specified more precisely in the ruling itself. In this case, while there is an important issue regarding the consequences of the decision on the financial health of the retirement regime, such an evaluation requires a broader and more detailed analysis, a situation that, from my perspective, is not fulfilled in the majority vote. The consequences of a decision cannot eclipse the analysis and protection of other rights. In this balancing, I am more inclined to the preeminence of the claimed rights than to the consequences of the decision, without ignoring, as I have explained, that a decision favorable to the claimants does not endanger the financial health of the Judicial Branch pension fund. In the case under review, not only must the financial health of the regime be evaluated, but also the effects of the legislative decision being questioned on the sphere of fundamental rights of those involved and on the democratic principles of the institution where they work.

D.-) Regarding the remaining procedural defects In the same sense as the dissenting vote to resolution number 2018-5758, signed by Magistrate Cruz Castro and other magistrates, and despite the fact that Magistrate Cruz did not participate in the vote that resolved specific allegations of violations of the legislative procedure in ruling No. 2021-11957, nor in the resolution that allowed this action to proceed, No. 2022-008712, we proceed to ratify the procedural defects that were considered therein to exist in the challenged Law No. 9544.

“XXIII.- Dissenting vote of Magistrates Cruz Castro, Salazar Alvarado, and Hernández Gutiérrez.

Drafted by Magistrate Salazar Alvarado; and, Contrary to the criterion of the majority of the Chamber, we consider that the bill called “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, legislative file No. 19,922, presents unconstitutionality defects that invalidate the consulted bill, according to the following considerations:

SOLE.- Defects in the legislative procedure.

a.- Text of the bill not consulted with the Supreme Court of Justice. Among the doubts of constitutionality raised by the consultants is the failure to consult the Judicial Branch on the substitutive text approved in the session of July 27, 2017, of the Special Commission. In the opinion of the deputies who raise the consultation, that bill contains a series of regulations that affect the organization and functioning of the Judicial Branch, which requires that it be consulted with the Supreme Court of Justice, in accordance with Article 167 of the Political Constitution. Specifically, they argue that Article 239 of the bill creates a Administrative Board of the Judicial Branch Pension and Retirement Fund, which it defines as an organ of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions that the law grants it. This Board is granted functional independence and is assigned a series of competencies, such as raising the worker contribution to the Pension Fund, hearing retirement applications, to cite a few, whereby, in their understanding, a modification in the structure of the Judicial Branch is produced.

Similarly, the Superior Council of the Judiciary is stripped of powers, and furthermore, Article 240 of the bill confers upon the Full Court the obligation to issue regulations for the election of the members of that Administrative Board, thereby assigning it a power it does not currently hold. On the contrary, they clarify that the previous substitute texts were indeed sent for consultation to the Supreme Court of Justice, and therefore they consider it contrary to Constitutional Law that this did not occur with respect to this latest text.

Precisely, at the heart of the discussion, as is well stated in the majority opinion, lies the determination of whether, under the terms set forth in Article 167 of the Political Constitution, the legislative body was or was not obligated to send the cited bill for consultation to the Judicial Branch, a duty that, moreover, has been incorporated into Articles 126 and 127 of the Regulations of the Legislative Assembly, which stipulate the procedure to be observed for this purpose. From the constitutional text, it is inferred that the mandatory consultation with the Supreme Court of Justice is such only if the bill refers to the organization or functioning of the Judicial Branch. Thus, the crux of the matter lies in what is to be understood by "organization or functioning of the Judicial Branch." In this regard, the majority opinion holds that when the Fundamental Political Charter refers to the organization and functioning of the Judicial Branch, it refers—solely—to the impact on the jurisdictional function, and not on the purely administrative function. In support of this position, Judgments No. 1998-5958 of 14:54 on August 19, 1998, No. 2001-013273 of 11:44 on December 21, 2001, and No. 2008-5179 of 11:00 on April 4, 2008, are cited. Likewise, in relation to the specific issue of the Pension and Retirement Fund of the Judicial Branch and the obligation of the Legislative Assembly to consult the Supreme Court of Justice on bills dealing with it, the majority opinion cites Judgments No. 1995-3063 of 15:30 on June 13, 1995, and No. 2002-4258 of 9:40 on May 10, 2002, based on which it concludes that in those cases, the Legislative Assembly is not obligated to send the bill for consultation with the Supreme Court of Justice, under the terms set forth in constitutional Article 167. However, in the opinion of the undersigned, such an interpretation of the constitutional provision, restricted solely to the jurisdictional function, derives neither from the text of the Fundamental Charter nor from the jurisprudence of this Chamber. Indeed, regarding the cited precedents, it should be noted that with respect to the first three judgments, what the majority asserts in its opinion is not inferred from them. Thus, in Judgment No. 1998-5958 of 14:54 on August 19, 1998, only the term "functioning"—of the binomial "organization or functioning"—of the Judicial Branch is developed, without referring to the issue of the organization of that Branch of the Republic. Specifically, in the citation made of that opinion, the Chamber clearly indicates that "...the matters that mandatorily require a consultation with the Supreme Court of Justice are those that refer 'to the organization or functioning of the Judicial Branch,' where the term 'functioning' alludes not only to aspects of the internal administrative regime of judicial offices, but also to the procedural issues governing the substantiation of the various matters brought before those courts" (emphasis added), which makes it evident that the issue of organization—which is what is of interest here—was not developed in that ruling, simply because the case did not require it, as it dealt with the mandatory legislative consultation of constitutionality on the bill for the "Addition of a new Chapter IV, called 'On the remedy of habeas data,' to Title III of the Law of Constitutional Jurisdiction, Law No. 7185 of October 19, 1989," which was processed in legislative file number 12,827, where the issue under discussion was that the reform affected the jurisdictional function of the Judicial Branch. That this is so is evident from the very text of the judgment which is not cited with due breadth in the majority opinion: "...the matters that mandatorily require a consultation with the Supreme Court of Justice are those that refer 'to the organization or functioning of the Judicial Branch,' where the term 'functioning' alludes not only to aspects of the internal administrative regime of judicial offices, but also to the procedural issues governing the substantiation of the various matters brought before those courts. And, in Costa Rica, constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Law of Constitutional Jurisdiction integrate this Chamber within the structure of the Court." Having cited the context, it cannot be inferred that the Chamber restricted the binomial "organization or functioning" merely to the jurisdictional aspect, but rather that, in the cited case, this Constitutional Court only referred to the aspect of the jurisdictional function of the Judicial Branch, because it was the issue under discussion, without excluding or referring to the topic of the administrative organization of that Branch of the Republic. The same can be said in relation to Judgment No. 2001-013273 of 11:44 on December 21, 2001, to which the majority alludes. It concerns a facultative legislative consultation of constitutionality regarding the bill for the "Modification of the Penal Code, Law number 4573 and its amendments," legislative file number 14,158. Again, it was a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Hence, in this case, the Chamber also did not develop this latter topic, as it was superfluous. It is for this reason that the substantive discussion focused and concluded on the aspects of the jurisdictional function of the Judicial Branch: "...said consultation [that of Article 167 of the Political Constitution] is mandatory when what is being discussed in the Assembly is a bill that seeks to establish rules for the functioning and organization of the Judicial Branch, understood not only as provisions regulating the creation of courts of justice or jurisdictional powers, but even those that provide for the manner of exercising such powers, that is, on the way in which the Judicial Branch carries out its jurisdictional function, including strictly procedural rules" (the highlighting does not belong to the original). Certainly, it is evident that what was stated was limited to examining matters related to the exercise of the jurisdictional powers of the Courts of Justice, since it was on that particular aspect that the consultation was based. But the Chamber did not say that this is the only instance in which consultation under Article 167 of the Political Constitution is mandatory; rather, what it said is that in that case it is mandatory, without referring to other cases in which it also is, such as matters concerning the administrative organization and powers of the Judicial Branch.

Judgment No. 2008-5179 of 11:00 on April 4, 2008, deserves a separate comment, since here, unlike the reading made by the majority, it is indeed established that matters concerning the administrative organization of the Judicial Branch fall within the mandatory consultation stipulated by the cited constitutional Article 167. On that occasion, this Constitutional Court, as the ultimate interpreter of the Political Constitution, when referring to the terms "organization or functioning" of the Judicial Branch, contained in Article 167 of the Political Charter, as a condition for the mandatory consultation with that Branch of the Republic by the Legislative Assembly, considered "...that a bill deals with such matters when its articles contain explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch or creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions..." (emphasis added). This is not a change of criterion by this Court on the matter, but rather, within the jurisprudential line already established, a further determination of the terms "organization or functioning" used by Article 167 of the Political Constitution, to establish the cases in which bills within the legislative process must be sent for consultation—mandatorily—to the Supreme Court of Justice. This judgment did not, in any way, broaden the assumptions of mandatory consultation; on the contrary, what it did was define them in a broader and more precise manner. Therefore, it was clearly determined therein that in those cases, but only in these, consultation is mandatory. Thus it is understood that, in the same judgment, it was stated: "[i]t should be noted that such an exegesis is imposed for the sake of maintaining the balance of powers, without privileging one constitutional body or another, so that each may exercise its functions independently and separately as the constitutional text itself requires (Article 9 of the Constitution). In other terms, the specification of such concepts prevents any collision, overreaching, or exacerbation of the respective functions, for the sake of maintaining the balance and containment of powers, since the purpose of the norm is not only the functional independence and budgetary autonomy of the Judicial Branch, but also the balance between the Legislative and Judicial Branches. Indeed, a broad interpretation of the terms employed by the original constituent, by the Full Court, could lead to certain matters that, in a strict sense, are not related to the organization and functioning of the Judicial Branch unjustifiably requiring a reinforced law, thereby slowing down or unnecessarily hindering the legislative function. On the other hand, the non-application by the Legislative Assembly of the constitutional norm, by mistakenly considering that the bill does not deal with the organization and functioning of the Judicial Branch, could cause an injury to the functional independence and budgetary autonomy of the Judicial Branch." From the foregoing, it is inferred that everything related to the matter of the organization and functioning of the Judicial Branch, but only and strictly this—to maintain the balance between the functional independence and budgetary autonomy of the Judicial Branch, on one hand, and the freedom of configuration of the ordinary legislator, on the other—is what obligates the legislative body to conduct the consultation before the Supreme Court of Justice, without being able to extend it to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that matters concerning the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect impact on the jurisdictional function, obligate the legislative body to raise the consultation under the terms expressed in Article 167 of the Political Constitution. And it could not be otherwise, since the impact or modification of the administrative organization of the Judicial Branch in general—and not only that pertaining to jurisdictional or judicial bodies in the strict sense—also affects the service of Administration of Justice it provides, and the independence constitutionally guaranteed to that Branch and to judges as officials called to impart justice.

Furthermore, Judgments No. 1995-3063 of 15:30 on June 13, 1995, and No. 2002-4258 of 9:40 on May 10, 2002, which are cited in the majority opinion as grounds for concluding that bills related to the specific topic of the Pension and Retirement Fund of the Judicial Branch do not need to be submitted for consultation with the Supreme Court of Justice, also do not have the virtue of providing the basis that, in relation to this matter, the majority of the Chamber claims they have.

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

Similarly, in Judgment No. 2002-4258 of 9:40 on May 10, 2002, the Chamber heard accumulated actions of unconstitutionality filed against Article 4 of Law No. 7605 of May 2, 1996, insofar as it amends Articles 224, 226, and 236, subsections 1) and 2), of the Organic Law of the Judicial Branch, No. 7333 of May 5, 1993, as well as, by connection and consequence, against Article 33, subsection a), of the Disability, Old Age, and Death Regulation of the Costa Rican Social Security Fund. The Chamber dismissed, among other alleged issues, the violation of Article 167 of the Political Constitution, on the grounds that the reform to the pension regime of judicial servants being challenged had no relation to the organization or functioning of the Judicial Branch, for the definition of which it referred to what was stated in Judgment No. 1995-3063 of 15:30 on June 13, 1995, which, as already stated, only referred to the term functioning of the Judicial Branch, without any reference to the topic of its organization. Thus, unlike the criterion expressed by the majority, said judgments do not exclude the matter related to the Pension and Retirement Fund of the Judicial Branch from the mandatory consultation with the Supreme Court of Justice, but only insofar as the respective bill has no direct relationship with the "organization or functioning of the Judicial Branch," topics that were certainly not involved in the actions filed before this Chamber and that were resolved in the cited judgments. This does not exclude the matter concerning the Pension and Retirement Fund of the Judicial Branch from the mandatory consultation with the Supreme Court of Justice, as the majority understands it, since this topic, considered in itself, is not excluded from said consultation; rather, it will depend on whether the bill in question contains or does not contain regulations concerning the organization or functioning of that Branch, an aspect that must be determined beforehand in each case to establish whether said consultation is mandatory or not.

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

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

"Article 8. Judicial Guarantees.

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation made against the person, or for the determination of the person's rights and obligations of a civil, labor, fiscal, or any other nature." (The bold text is not from the original).

Judicial independence constitutes a fundamental principle within the Constitutional Rule of Law. But that independence, to be real, must not only be organizational and functional, but also economic. This economic independence is also guaranteed in Article 177 of the Political Constitution, by establishing that the ordinary budget bill must allocate to the Judicial Branch at least 6% of the ordinary revenues calculated for the economic year. The intention of the original Constituent, with the enactment of this norm—which establishes a bound constitutional expenditure—is to guarantee, among other things, that judges and the rest of the auxiliary judicial personnel have compensation adequate to the complexity and difficulty of the jurisdictional function, which implies a retirement or pension also adequate to that and to the special prohibitions that said function entails for judicial servants, which do not weigh upon the public servants of the other Branches of the State. The constitutional norm prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in all its breadth, since the salaries of judges and auxiliary personnel, as well as the applicable pension and retirement regime, must be strictly related to the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliaries of justice, is essential in a Constitutional Rule of Law. Thus, one way to guarantee the independence of the Judicial Branch, the Judges of the Republic, and the auxiliaries of justice is with a dignified retirement or pension, commensurate with their constitutional functions.

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

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

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

"11. The law shall guarantee the tenure of judges for the established periods, their independence and security, as well as adequate remuneration, pensions, and conditions of service and retirement." (The highlighting is not from the original).

Thereby, the United Nations recommends to all countries of the world that legal norms must guarantee judges adequate remuneration, pensions, conditions of service, and retirement, proportionate to the complexity and difficulty of the jurisdictional function they exercise. Which must also be understood as extending to auxiliary justice officials, since otherwise such independence would be impossible.

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

"6.1 The professional exercise of judicial functions gives the right to remuneration for the judge, the level of which shall be determined so as to shield them from pressures intended to influence their decisions and, more generally, their judicial conduct, thereby altering their independence and impartiality.

6.4 In particular, the statute shall ensure that the judge who has reached the legal age for cessation of their functions, after having performed them professionally for a determined period, receives a retirement pension the amount of which shall be as close as possible to their last remuneration for judicial activity." (The highlighting is not from the original).

The cited instrument seeks to achieve a truly and effectively independent Judicial Branch, which is a guarantee in favor of the citizenry. Thus, the adequate remuneration and pension of judges and auxiliary justice officials, in the terms expressed therein, constitute the due and reasonable consequence of the exercise of a delicate function of great difficulty and responsibility.

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

"Art. 32. Remuneration.

Judges must receive sufficient, irreducible remuneration in accordance with the importance of the function they perform and the demands and responsibilities it entails." (The highlighting is not from the original).

And, in Article 33, it provides:

"Art. 33. Social Security.

The State must offer judges access to a social security system, guaranteeing that, upon concluding their years of service due to retirement, illness, or other legally established contingencies, or in case of personal, family, or property damage derived from the exercise of their office, they will receive a dignified pension or adequate compensation." (The emphasis is not in the original.)

It must be borne in mind that retirement (jubilación) and pension (pensión) form part of the Economic, Social, and Benefit Rights contained in the International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and accession by the United Nations General Assembly, in its resolution 2200 A (XXI), of 16 December 1966. These regulations have also been embraced in Report No. 1 of 23 November 2001, rendered by the Consultative Council of European Judges (CCJE), when examining the issue of the independence and irremovability of judges. With respect to the issue of judges’ salaries, that Council recommended:

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

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

Indeed, the Full Court (Corte Plena) approved the Statute of Justice and Rights of Users of the Judicial System (Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial), in whose articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Judicial Branch and of judges, in its different facets. Article 24, relating to the material conditions of judicial independence, establishes that the State must guarantee “the economic independence of the Judicial Branch, by allocating the adequate budget to cover its needs and through the timely disbursement of the budgetary items,” which is intimately related to the provisions of the already cited Article 177 of the Political Constitution (Constitución Política), regarding the constitutional allocation of a minimum of the Ordinary Budget for the Judicial Branch, as a manifestation of that independence.

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

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

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

Based on the preceding considerations, it is therefore appropriate to examine the content of the bill under consultation (proyecto de ley en consulta) in order to determine whether or not it affects the organization or functioning of the Judicial Branch, in the terms expressed.

In this order of ideas, the consulting parties (consultantes), as stated supra, allege that Article 239 of the bill in question creates an Administrative Board of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), which it defines as a body of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions granted to it by law, a body that is granted functional independence and assigned a series of competencies, among others, to raise the employee contribution to the Pension Fund and to hear retirement applications, which implies a modification of the structure of the Judicial Branch. In the same manner, competencies are subtracted from the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial); and, additionally, in Article 240 of the bill, the obligation is conferred upon the Full Court to issue regulations for the election of the members of that Administrative Board, thereby assigning it a competency that it does not currently have. The aforementioned articles of the bill provide:

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

The Board is responsible for:

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

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

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

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

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

Those who make up the Board shall hold their positions for five years, after which they may be reelected, all in accordance with the regulations to be issued for this purpose by the Full Court, after having granted a hearing to the professional associations of the Judicial Branch.

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

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

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

The following may not be members of the Board:

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

The composition of the body must guarantee equal representation of both sexes, ensuring that the difference between the total number of men and women is no greater than one.” From the reading of Article 239, transcribed above, it is clear that it creates a new body within the structure of the Judicial Branch, called “Administrative Board of the Judicial Branch Retirement and Pension Fund,” which is granted complete functional, technical, and administrative independence to exercise the powers, competencies, and attributions granted to it by law, enumerated in subsections a), b), c), d), e), f), g), h), and i), of the article itself, for the fulfillment of its duties, for which purpose it shall have instrumental legal personality. In such a way, an administrative body is created ex novo and is placed within the structure of the Judicial Branch, with specific competencies and attributions; and, concomitantly, competencies and attributions previously granted – by formal law – to the Superior Council of the Judicial Branch are removed and eliminated. This circumstance alone, for the reasons stated, obliges the legislative body to necessarily consult the bill with the Judicial Branch, under the terms set forth in Article 167 of the Political Constitution, since this modifies the administrative organization of the Judicial Branch, by creating a new administrative body and suppressing competencies of the Superior Council in favor of that newly created body, which clearly affects the independence of that Branch of the Republic.

The same can be said in relation to Article 240 of the bill under consultation, insofar as it addresses matters pertaining to the administrative organization of the Judicial Branch, concerning the composition and appointment of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, their term of office, the appointment of the person who is to preside over it, and the requirements for being a member of that Board, among others. It is noteworthy that even though the Full Court is empowered, by the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), to issue the internal regulations necessary for the proper functioning of the Judicial Branch, the fact that, through the bill under consultation, the obligation is imposed upon it to regulate matters relating to the term of office of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, without the substitute text of the bill, which was finally approved in the First Debate, having been consulted with the Supreme Court of Justice (Corte Suprema de Justicia), implies a serious intrusion into the competencies of the highest-ranking body of the Judicial Branch, affecting the organization of that Branch of the Republic, in violation of the mandatory consultation prescribed in Article 167 of the Political Constitution; and, therefore, an injury to judicial independence. On its face, the cited regulation, now consulted by the representatives of the people, takes away from the President of the Supreme Court of Justice, and consequently, from the President of the Superior Council of the Judicial Branch, the competence granted to them by the Organic Law of the Judicial Branch to administer the Judicial Branch Pension and Retirement Fund, precisely in accordance with the investment policies established by the Full Court, as it is currently provided for in Article 81, subsection 12.

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

Despite this, said text was not the one approved in the First Debate by the Legislative Plenary on 30 October 2017, published in Supplement No. 268 to Digital Gazette No. 212 of 9 November 2017, since the text approved in the First Debate is a substitute text introduced by motion via Article 137 of the Legislative Assembly Regulations (Reglamento de la Asamblea Legislativa). This latter text was not consulted with the Supreme Court of Justice, as was required, according to what was analyzed supra, in accordance with the provisions of Article 167 of the Political Constitution.

This point, although it was not expressly alleged by the consulting parties, is not an obstacle for this Chamber, ex officio, to examine it, since it constitutes an essential defect in the legislative procedure in the processing of the bill under consultation. In this regard, it is worth emphasizing that this Constitutional Court has competence to take cognizance of and rule – ex officio – on any aspect of constitutionality that it detects upon reviewing a legislative file in which a specific bill is being processed, through the channel of a legislative consultation on constitutionality, regardless of whether that specific aspect was not the subject of the consultation. This derives from the text of Article 101 of the Law of the Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), which states:

“Article 101.- The Chamber shall evacuate the consultation within the month following its receipt, and, in doing so, it shall issue an opinion on the aspects and grounds consulted or on any others it considers relevant from a constitutional standpoint.

The opinion of the Chamber shall only be binding insofar as it establishes the existence of unconstitutional procedures in the consulted bill.

In any case, the opinion does not preclude the possibility that the challenged norm or norms may subsequently be challenged through the channels of constitutionality review.” (The emphasis is not in the original).

In this regard, national doctrine has also expressed:

“Regarding the content of the opinion issued by the Constitutional Chamber, there is no absolute and rigid congruence between the grounds or aspects consulted and the opinion rendered by the Chamber, since the Constitutional Chamber may well, ex officio, issue its opinion ‘on any others it considers relevant from a constitutional standpoint’ (Article 101, first paragraph, LJC), which include, of course, both formal defects of the legislative procedure not consulted and substantial or material issues contained in the bill and not observed by the consulting parties.” (Jinesta Lobo, Ernesto. Derecho Procesal Constitucional, First Edition, Editorial Guayacán, San José, Costa Rica, p. 334).

Thus, if, as in this case, the Chamber, upon examining the legislative file, determines that in the law-making procedure of a bill, an essential defect was incurred, or if its content proves contrary to the Law of the Constitution, it may well rule on the matter ex officio, not only because the law regulating its functioning so provides, but also because this is reasonable and consistent with sound judicial economy, since it would make no sense for the Chamber to overlook the unconstitutionality detected in the bill merely because the consulting parties did not advise of it, awaiting for it to later be claimed through an action of unconstitutionality and having to rule on it, with the corresponding declaration of unconstitutionality of an already effective law, with the harmful consequences this could entail for the legal system. In this sense, it would be absurd to allow the legislative approval of a law that contains an unconstitutionality, whether in the legislative process or in the substantive regulations, which will ultimately have to be declared. Especially if it is, as in this case, a defect in the processing of the consulted bill that is binding for the legislative body. Therefore, the defect detected in the legislative procedure of the bill for the “Comprehensive Reform Law of the Various Pension Regimes and Related Regulations (Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa),” legislative file number 19,922, for the omission to consult the Supreme Court of Justice on the substitute text approved in the First Debate, must be declared ex officio, since this violates the provisions of Article 167 of the Political Constitution, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative body within its structure, granting it substantial competencies in pension and retirement matters; and, at the same time, suppressing competencies previously granted by law to the Superior Council of the Judicial Branch (Articles 239 and 240 of the bill).

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

“In the same manner, they modify the scope of functions of the Judicial Archive, increasing the quantity of data it must register. All of the foregoing undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. In spite of the foregoing, the Legislative Assembly omitted to carry out the respective consultation with the Supreme Court of Justice (at least it is not recorded in the certified copy of the file sent by the President of the Directorate), without those aspects having previously been included in the texts consulted with the Supreme Court of Justice, for which reason the Chamber considers that a violation was incurred of the duty imposed in Article 167 of the Political Constitution regarding the functional independence recognized by the constituent power to the Judicial Branch, and in that sense it must be understood that the procedure followed prior to the approval of the amended report is null and void from a constitutional standpoint and must be so declared.” (The highlighting is added).

Note from the foregoing, that the defect noted would not be corrected even if, in the second debate, the bill were approved by a qualified majority, since this would only be the case if it involved the approval of a text that was mandatorily required to be consulted with the Judicial Branch, because it affects its organization, structure, and functioning – as in this case –, and, once consulted with the Supreme Court of Justice, the legislative body persisted in approving it, departing from the technical opinion of the judicial body. But what is at issue here is the approval – in the First Debate – of an unconsulted text, in violation of the provisions of Article 167 of the Political Constitution, a procedural defect that is insurmountable and incurable. This because, although it is true that the substitute text of the bill, which was adopted by the Special Commission at the session of 27 July 2017, was consulted with the Supreme Court of Justice, this text was not the one finally approved in the First Debate, but rather a new substitute text that was not previously consulted, despite having a direct relationship with the organization, structure, and functioning of the Judicial Branch, as has been set forth. And even more, although the prior text approved by the Special Commission at the session of 27 July 2017 was indeed consulted with the Court, since the latter had expressed disagreement with the text, a qualified vote by the Plenary was mandatory, in accordance with Article 167 of the Fundamental Charter, which was also not done.

The Full Court, in Session No. 27, of 7 August 2017, Article XXX, when evacuating the consultation to the Legislative Assembly on the Affirmative Majority Report approved by the cited Special Commission, resolved:

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

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

The judicial career, prosecutorial career, and career of the Public Defender’s Office and personnel in general are affected, as they, having more charges on their salary – four times more than in other regimes – would receive a lesser benefit.

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

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

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

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

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

The proposed tax is imposed at a moment in the life of the retired person when they are most vulnerable, nearing or already in their senior years. One cannot ignore that it is at this stage where, generally, people require more medical attention, special care, among other things, and that during their working life, some in lesser or greater quantities, according to the income received, they contributed to the regime with the expectation of having the resources foreseen to face this process, and if this Bill were approved, that life plan would be truncated.

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

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

This has been made known to that Legislative Branch in other consulted bills, such as those considered in Full Court sessions numbers 57-14 of 08 December 2014, article XVIII; 13-15 of 23 March 2015, article XXXVII; 2-16 of 18 January 2016, article XVIII and 14-17 of 30 May 2017, article XIX, among others, in which the Full Court has deemed it necessary to point out the impact of the Bills on the internal structure of the Judicial Branch.

Corollary, regarding the Bill processed under file no. 19922, a negative opinion must be issued because it has an impact on the structure, organization, and functioning of the Judicial Branch.” (The boldface does not appear in the original).

The final part of the cited constitutional article (167) literally states that “in order to depart from its [the Court’s] opinion, the vote of two-thirds of the total membership of the Legislative Assembly shall be required”; and that final text —not consulted in any event— was approved by the Legislative Assembly on October 30, 2017, with only thirty-one votes (folios 4000 and 4173 of the legislative record).

b.- Lack of publicity of the substitute text approved by the Special Committee in session on September 13, 2016. From the study of the legislative process, it has been established that the substitute text of the bill under consultation, approved by the Special Committee in session on September 13, 2016, was not published, just as the consulting deputies have raised and was duly accredited by the evidence provided by the Executive Director of the Legislative Assembly on March 12, 2018. Moreover, in accordance with the rules set by the special procedure approved by the Legislative Assembly for legislative record number 19,922, in Ordinary Session No. 37 of June 30, 2016, based on the provisions of article 208 bis of the Regulations of the Legislative Assembly, that publication was mandatory, which is clearly inferred from subsection h of point 2, “Substantive Motions,” of the procedure in question, which literally states:

“h.- If during the consideration of the record in its processing in committee a substitute text motion is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to order its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity and the consideration of the bill shall be suspended…” (The highlighting does not appear in the original).

The majority of the Chamber considers that this lack of publicity —a fact about which there is no dispute— does not affect the processing of the bill; and, therefore, does not constitute an essential procedural defect, since, ultimately, that was not the text that the Special Committee approved on July 27, 2017, this latter substitute text having indeed been published in Supplement No. 189 to Digital Gazette No. 147 of August 4, 2017.

However, in the undersigned’s view, such reasoning is not acceptable; this is because, in the first place, the rules agreed upon by the Legislative Plenary for the processing via special procedure of the bill under consultation, by way of article 208 bis of the Legislative Regulations, are of mandatory and strict compliance, given that this is a much more restrictive procedure than the ordinary one, where, in particular, the democratic and publicity principles must be observed. Furthermore, regardless of whether the text in question was or was not the one finally approved by the Special Committee on July 27, 2017 —which was indeed published— the lack of publication is an essential defect in and of itself, such that the fact that, subsequently, said text was replaced by another that was published, does not have the virtue of curing the noted defect.

The foregoing has already been upheld by this Chamber, upon resolving the Optional Legislative Consultations on Constitutionality filed regarding the approval of the bill called “Ley de Solidaridad Tributaria,” processed under legislative record No. 18,261, an occasion on which, through Judgment No. 2012-004621 of 4:00 p.m. on April 10, 2012, it stated:

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

VIII.- EVIDENT AND MANIFEST ESSENTIAL DEFECT IN THE PROCEDURE DUE TO THE OMISSION OF THE PUBLICATION OF A SIGNIFICANT NUMBER OF SUBSTANTIVE MOTIONS APPROVED IN THE SPECIAL COMMITTEE THAT, COLLECTIVELY, SUBSTANTIALLY MODIFIED THE ORIGINAL BILL. On the other hand, the consulting deputies state that, despite what was stipulated in section I.2.h. of the special legislative procedure, during its processing the publication of a series of changes made to the bill was omitted, which diminished the revenue expectation, which was originally proposed at 2% and subsequently dropped to between 0.5% and 1% of GDP. Specifically, they indicated that the publication of Motions Nos. 92, 128, 221, 222, 225, 227, 262, 267, 623, 624, 639, 5189-208 bis, 650, 661, 662, 674, 761, 778, 1717, 1786, 1843, 3767, 2325, 3771, 3879, 3991, 4128, 4129, 4157, 4241, 4242, 4243, 4244, 4245, 1375-208 bis, 1378-208 bis, 1379-208 bis, 1382-208 bis, 1383-208 bis, 1384-208 bis, 1388-208 bis, 4940-208 bis, 5142-208 bis, 5143-208 bis, 5144-208 bis, 5145-208 bis, 5146-208 bis, 5165-208 bis, 5166-208 bis, 5190-208 bis, 5193-208 bis, 5194-208 bis, 5215-208 bis, 5219-208 bis, and 5428-208 bis was omitted. However, beforehand, it is appropriate to clarify that this Chamber will not address matters concerning Motions Nos. 92, 225, 639, 5189-208 bis, and 4245. It must be observed that the content of Motion No. 92 does not refer to what the consulting deputies state. Although the cited legislators argue that said motion concerns the exemption of fishing inputs from the payment of sales tax, the truth is that it relates to the deadline for filing income tax returns. For its part, Motion 225 only clarified that the total amount of the school salary that is exempt from income tax payment covers both public and private workers. Similarly, Motion 639 does not concern what the consulting parties indicate in this matter. The motion refers to the exemption from the payment of sales tax on the collection of fees for cash withdrawals at ATMs and not, as the legislators maintain, to the exemption of 50% of the income tax on profits for state business entities. In any event, the consulting parties themselves note that said benefit was subsequently eliminated through Motion 5189-208 bis. Likewise, Motion 4245 only clarifies that the tax treatment for pension systems established in the Ley de Protección al Trabajador will be maintained. Now, regarding the rest of the motions, it is necessary to point out that the principle of publicity in the legislative process is of significant and special relevance when it comes to tax matters, given that there must be absolute transparency regarding all modifications that a bill on the matter undergoes, given the general nature of the taxing power and the principle of equality in bearing public burdens. Thus, any substantial modification of a bill of such nature must be subjected to intense and scrupulous publicity. In accordance with section I.2.h. of the special procedure approved under article 208 bis, “If during the consideration of the record in its processing in committee a substitute text motion is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to order its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity.” In this consultation, it is evident that the abundant number of approved substantive motions, as a whole, produced a substantial change in the original bill, starting with the modification and reduction of the rates of some taxes for certain subjects, goods, and services, as well as the establishment of exonerations or exemptions for various public and private legal entities and activities, the introduction of some fiscal benefits, the establishment of special transitional regimes, etc. Such substantive motions certainly deal with the subject matter regulated by the original and duly published bill, but their sum total produces a substantial change of such entity and magnitude that, because it is a tax matter, it requires accentuated and qualified publicity, given that citizens have the right to know and understand the reasons why certain sectors, groups, subjects, activities, goods, and services are exonerated, subjected to a reduced or differentiated rate, or to a regime of fiscal benefits or exemptions, or to a different transitional one, in a manner different from the rest of the taxpayers. Publicity in tax matters is of greater importance due to the generality and equality that must exist regarding the imposition of tax burdens. Note that it has been a public and notorious fact, exempt from proof, that the revenue expectation contained in the original bill was substantially reduced by the approved substantive motions. As is evident from the comprehensive review of the two hundred fourteen volumes of the legislative record and from official communication No. Pal-1612-2012 of April 10, 2012, from the President of the Legislative Assembly, received by this Tribunal on April 10 last, such substantive motions were not published in the Official Gazette La Gaceta. Specifically, on this point in the cited communication, the President of the Legislative Assembly stated the following:

“Regarding the request made in the notification document of April 9, 2012, at 4:50 p.m., concerning record No. 12-003518-0007-CO, an optional legislative consultation filed by Messrs. Adonay Enríquez Guevara and others, we respond as follows. As certified to us by Lic. Marcos William Quesada Bermúdez in official communication SD-98-11-12 of April 9 of this year, which we attach, regarding bill # 18.261 Ley de Solidaridad Tributaria, only the publication of its base text, or initial text thereof, is recorded in the processing in Gaceta 187, Supplement 70, of September 29, 2011. No other updated text was published because neither did the respective Committee adopt any agreement to request it from the Legislative Directorate, nor did the Committee Chair properly do so. On the other hand, the order motions on the Legislative Floor aimed at approving its publication were systematically rejected by the majority of the deputies, for all of which reasons said publication was not carried out.” Consequently, from reading the content of the substantive motions approved in the special committee, this Constitutional Tribunal unanimously considers that there was an essential defect in the legislative procedure of an evident and manifest nature that violated the principles of publicity and equality by omitting their publication, given that, collectively, they caused a substantial modification of the original text.” Thus, because the special procedure established via article 208 bis of the Regulations of the Legislative Assembly was not strictly observed in the processing of the bill under consultation, due to the omission of the publication of the substitute text of the bill under consultation approved by the Special Committee in the session of September 13, 2016, an essential defect in the legislative law-making procedure was incurred, in violation of the democratic principle and the principle of publicity, without the final substitution of said text being able to validate the procedure.

This Chamber also so determined in Judgment No. 2015-001241, of 11:31 a.m. on January 28, 2015, in declaring several articles of the Ley de Impuesto a las Personas Jurídicas, No. 9024 of December 23, 2011, unconstitutional for violation of the principle of publicity, by ordering:

“From the foregoing analysis and, particularly, from what is highlighted, it is evident that the unpublished substitute text introduced two sanctions that immobilize any company, such as the non-issuance of certifications of legal capacity and the cancellation of the registration of documents for those in default. In this regard, it is also observed that the substitute text approved essential matters of the tax, related to sanctions, which were not provided for in the original bill and which, therefore, warranted guaranteeing the constitutional principle of publicity. As a corollary of the examination carried out, it is concluded that articles 1, 3, and 5 of Law No. 9124, Impuesto a las Personas Jurídicas, are unconstitutional in light of the provisions of article 73, subsection c), of the Ley de la Jurisdicción Constitucional. The foregoing, because, in the formation of the law in question, substantial requirements or procedures related to the publicity of the bill were violated, a principle which, as has been repeatedly stated, is basic in a Constitutional State of Law, even more so when it concerns tax matters. Indeed, the omission of publishing the bill anew, in order to guarantee the publicity of the text, as well as to ensure the broadest citizen and institutional participation, violated an essential aspect of the parliamentary procedure, whose omission entails a defect of unconstitutionality in the legislative procedure.” (The highlighting does not appear in the original).

c.- Belated publication of the substitute text of the bill approved in First Debate by the Legislative Plenary. From legislative record No. 19,922, it is evident that the substitute text approved in First Debate by the Legislative Plenary on October 30, 2017, was published in Supplement 268 to Digital Gazette No. 212 of November 9, 2017, whereas this consultation was filed on November 1, 2017. That is to say, not only was said text published untimely, after being approved in First Debate, but at the time of filing the consultation before this Chamber it had not been published, thereby also producing another violation of the principle of publicity; and, therefore, of an essential procedure of the legislative process. The publication of the substitute text of the bill should have occurred before its approval in first debate, since, having been done subsequently, it also violated the democratic principle, by preventing the citizenry from knowing the substitute text of the bill prior to its approval. Under such circumstances, the belated publication has the same effects on the legislative procedure as non-publication, since the purpose of the publication —namely, that the population knows the final text of the bill prior to its approval and can duly oversee the legislative work— was rendered nugatory, an essential defect in the legislative procedure that cannot be cured by subsequent publication. Thus, what was stated in the preceding whereas clause regarding the non-publication of the text approved by the Special Committee in the session of September 13, 2016, is fully applicable to the belated publication of the substitute text once approved in First Debate, because a belated publication of a bill is equivalent to the non-publication of the bill.

Based on the foregoing considerations, we consider that the bill consulted to the Constitutional Chamber suffers from several essential procedural defects that affect it in its entirety and render it contrary to Constitutional Law, for which reason it is pointless to proceed to analyze the substantive arguments raised by the consulting parties against the substantial content of the bill in question. In the stated terms, we differ from the majority's opinion and thus consider this legislative consultation regarding the bill called “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa,” legislative record No. 19,922, as resolved.

XXIV.- Magistrate Cruz Castro sets forth additional reasons for the dissenting vote.

• 1)Clarifying note on the lack of publication of the bill as an essential defect As indicated in the majority opinion, the substitute text in the Committee, approved on September 13, 2016, was not published. Although subsequently, the text was approved by the Committee on July 27, 2017, and published on August 4, 2017; and although later the text approved in first debate was not published until November 9, 2017. In this context, it cannot be ignored that the motion governing the approval procedure of the consulted bill states that it must be published in the event there is a substitute text. Therefore, this situation constituted a transgression of what is indicated in the motion governing the procedure (what is more, because it involves the application of article 208 bis, said motion serves as regulatory rules in that specific bill), given that any type of regulated publication is an essential requirement. Because this is an abbreviated legislative procedure, the principle of publicity of the rules discussed or approved must be respected with greater rigor. The weakness of an abbreviated procedure requires a more rigorous application of the publicity requirement, without admitting validation regarding a requirement as important as publicity. On the other hand, the publicity of bills is the only way in which the activity of the people's representatives transcends to the entire population. It is the projection of parliamentary activity outward, operating as a constitutional guarantee that prevents the parliament from acting with its back to the citizenry. Unlike other matters where I have considered that the lack of publication has not been an essential defect, in this case I consider that it is, for three reasons: because the rule governing the procedure so indicates, because it concerns a substitute text, and furthermore because the lack of publication did not allow the population to know the text that was being discussed at that moment, thus also preventing the citizenry from making statements about what the parliament intended with the bill. In this case, it is not disputed whether the publication of some rules that did not vary the essence of the bill was omitted; rather, in this matter, publicity was completely omitted during the development of an abbreviated legislative procedure, which, as I have expressed, completely weakens the constitutional principles governing the parliamentary procedure.” E.-) Regarding how article 167 of the Constitution was violated Furthermore, in the same vein as the dissenting vote to resolution number 2022-10593, by Magistrates Salazar, Garita, and Jara, with the first acting as drafter, I consider that there is a violation of article 167 of the Constitution:

“… in the legislative procedure, a gross, manifest, and evident violation of article 167 of the Political Constitution was incurred, and which, due to its relevance, demands the unconstitutionality of the entirety of Law No. 9544 called “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas.” It must begin by noting that the Special Committee tasked with processing legislative record No. 19,922 informed the Full Court of the respective bills being approved, in order to comply with the provisions of the cited article 167. The consultations to the Supreme Court of Justice occurred on three occasions; namely:

• a)The bill was consulted to the Supreme Court of Justice, and the report rendered was acknowledged in the Full Court session No. 29-16 of September 26, 2016, article XVIII, and communicated to the Legislative Assembly via official communication SP-288-16 of September 28, 2016, with the express indication that the consulted bill affects the organization and functioning of the Judicial Branch.
• b)On a second occasion, the Full Court in session No. 9-17 of April 24, 2017, article XXIX, acknowledged the consultation raised to it and, via official communication SP-118-17 of April 26, 2017, brought to the attention of the Special Legislative Committee that the Full Court had issued a negative opinion on the consulted bill, because it affects the organization and functioning of the Judicial Branch.
• c)On a third occasion, the Full Court in session No. 26-17 of August 7, 2017, article XXX, acknowledged the consultation raised by the Special Committee regarding the Affirmative Majority Opinion, and a negative opinion was issued indicating that the bill processed under record No. 19,922 affects the organization, structure, and functioning of the Judicial Branch; a decision communicated to the Legislative Assembly via official communication SP-253-17 of August 10, 2017.

In each and every one of the consultations made, the Full Court established that these were bills that affected its organization and functioning, such that, based on that negative opinion, in accordance with article 167 of the Political Constitution, and the principles of coordination, mutual respect, and equality that inform relations between constitutional bodies, between two branches of the State [system of checks and balances], the law had to be approved by a qualified majority. Furthermore, it must be mentioned that the last of the bills, being the Affirmative Majority Opinion accepted by the Special Committee on July 27, 2017, was not the final one. On the contrary, the text of the bill was subject to substantive motions and reconsideration accepted by the Special Committee, on which the Legislative Plenary subsequently voted in First Debate, in extraordinary session No. 14 of October 30, 2017 (folios 4000, 4306 to 4327 of the legislative record). Thus, the text voted on by the Legislative Plenary in First Debate was the modified text, maintaining some of the points on which the Full Court had issued its negative opinion, among them, the installation of a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial to the detriment of the competencies of the Consejo Superior del Poder Judicial. But besides that, it must be noted that it contained other substantial changes to the bill, among them those that worsened some conditions for judicial officials regarding the enjoyment and exercise of the right to a pension and retirement, a situation on which the Full Court had to rule —with respect to article 167 of the Constitution— due to its relevance in Constitutional Law. These modifications were voted on in the First Debate and were approved in the Second Debate. The foregoing, without having made the institutional consultation on the bill approved in Committee and which was subsequently voted on by the Plenary in extraordinary session No. 14 of October 30, 2017.

Although the Legislative Assembly considered it unnecessary to consult the Judicial Branch on the final text, approved in the Special Committee on July 27, and the subsequent modifications made through substantive motions and reconsideration, and to continue with the legislative process following the Chamber's criterion in Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, given that those modifications to the pension regime of the Judicial Branch did not affect the structure and functioning of the Judicial Branch, nor the essential content of judicial independence, this is not acceptable to the undersigned judges, as will be developed further below. Furthermore, there is a pattern of worsening conditions for Judicial Branch officials that can be enumerated from some provisions that were modified by the substantive motions and reconsideration that were reflected in the text approved in Committee, which implied a substantial change from the previously consulted bill. As indicated, this latter text was approved in First Debate on October 30, 2017, according to which, upon comparison, some of the following substantial modifications of note are observed, such as, for example, the following:

• a)In Article 224, the percentage was increased to 85% of the average of the last twenty years of ordinary monthly salaries earned in the course of employment, and it is modified to set it at 82% of the average of the last twenty years of ordinary monthly salaries.
• b)In Article 229, a similar decrease affected the survivorship regime, wherein upon the death of the active employee, the amount for widowhood, common-law union, or orphanhood would decrease from 85% to 80%.
• c)In Article 227, a similar situation occurs for the permanent disability (invalidity) of the official, from 85% to 83%.
• d)Regarding the income of the Fondo de Pensiones y Jubilaciones del Poder Judicial, it is evident that a worker contribution of between eleven percent (11.00%) and fifteen percent (15%) of the salaries earned by judicial employees, and of the retirement pensions and pensions payable by the fund, had been established. Finally, it was approved at a fixed thirteen percent (13%), which means that the floor or base of the worker contribution could not be reduced to the lower percentage of eleven percent. While the upper limit is eliminated, the fixed percentage eliminated the reduction in favor of the judicial employee, who historically contributes a significant sum to the fund.

Thus, contrary to the majority opinion of the Chamber, which relies significantly on the doctrine of Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, a precedent in which the undersigned joined a dissenting vote along with Magistrate Cruz Castro, we consider that Law No. 9544 called “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas,” contains the substantial defect in the legislative procedure, due to the violation of the constitutional norm that imposes the constitutional consultation, based on the arguments set forth below.

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

At the basis of the discussion, as is rightly stated in the majority opinion, is the determination of whether, pursuant to the provisions of article 167 of the Political Constitution, the legislative body was or was not obligated to consult the cited bill to the Judicial Branch, a duty which, moreover, has been incorporated into articles 126 and 157 of the Regulations of the Legislative Assembly, which stipulate the procedure to be observed for this purpose. From the constitutional text, it follows that the mandatory consultation to the Supreme Court of Justice is only such if the bill concerns the organization or functioning of the Judicial Branch. Thus, the crux of the matter lies in what is to be understood by “organization or functioning of the Judicial Branch.” In this regard, the majority opinion holds that when the Fundamental Political Charter refers to the organization and functioning of the Judicial Branch, it refers —solely— to the affecting of the jurisdictional function, and not the strictly administrative one. In support of this position, Judgments No. 1998-5958 of 2:54 p.m. on August 19, 1998, No. 2001-013273 of 11:44 a.m. on December 21, 2001, and No. 2008-5179 of 11:00 a.m. on April 4, 2008, are cited. Likewise, in relation to the specific issue of the Fondo de Pensiones y Jubilaciones del Poder Judicial and the obligation of the Legislative Assembly to consult the Supreme Court of Justice on bills concerning it, the majority opinion cites Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, based on which it concludes that in those cases, the Legislative Assembly is not obligated to consult the bill to the Supreme Court of Justice, under the terms provided in article 167 of the Constitution. However, in the undersigned's view, such an interpretation of the constitutional article, restricted solely to the jurisdictional function, does not derive either from the text of the Fundamental Charter or from the jurisprudence of this Chamber. Indeed, regarding the cited precedents, it should be noted that, with respect to the first three judgments, what the majority holds in its vote cannot be inferred from them.

Thus, in Judgment No. 1998-5958 of 14:54 on August 19, 1998, only the term “functioning” (funcionamiento)—from the binomial “organization or functioning” (organización o funcionamiento)—of the Judicial Branch (Poder Judicial) is developed, without referring to the matter of the organization of that Branch of the Republic. Specifically, in the citation made of that vote, the Chamber clearly indicates that “…the matters that mandatorily require consultation with the Supreme Court of Justice are those referring to ‘the organization or functioning of the Judicial Branch’ (organización o funcionamiento del Poder Judicial), where the term ‘functioning’ (funcionamiento) alludes not only to aspects of the internal administrative regime of judicial offices, but also to the procedural issues governing the substantiation of the various matters submitted to those courts,” which makes it evident that the matter of organization—which is what is of interest here—was not developed in that decision, simply because the case did not require it, as it involved the mandatory legislative consultation on constitutionality regarding the bill for the “Addition of a new Chapter IV, called ‘On the habeas data remedy,’ to Title III of the Constitutional Jurisdiction Law, Law No. 7185 of October 19, 1989,” processed in legislative file number 12,827, where the issue under discussion was that the reform affected the jurisdictional function of the Judicial Branch. That this is so is clear from the very text of the judgment, which is not cited with due breadth in the majority vote: “…the matters that mandatorily require consultation with the Supreme Court of Justice are those referring to ‘the organization or functioning of the Judicial Branch’ (organización o funcionamiento del Poder Judicial), where the term ‘functioning’ (funcionamiento) alludes not only to the aspects of internal administrative regime of judicial offices, but also to the procedural issues governing the substantiation of the various matters submitted to those courts. And, in Costa Rica, constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Constitutional Jurisdiction Law integrate this Chamber within the structure of the Court.” Having cited it in context, it cannot be inferred that the Chamber restricted the binomial “organization or functioning” (organización o funcionamiento) merely to the jurisdictional aspect, but rather, in the cited case, this Constitutional Court solely referred to the aspect of the jurisdictional function of the Judicial Branch, because that was the matter under discussion, without excluding or referring to the topic of the administrative organization of said Branch of the Republic. The same can be said regarding Judgment No. 2001-013273 of 11:44 hours on December 21, 2001, to which the majority alludes. It concerns a discretionary legislative consultation on constitutionality regarding the bill for “Modification of the Penal Code, Law No. 4573 and its amendments,” legislative file number 14,158. Again, it dealt with a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Hence, in this case, the Chamber also did not develop this latter topic, as it was redundant. It is for this reason that the substantive discussion focused on and was exhausted by the aspects of the jurisdictional function of the Judicial Branch: “…said consultation [that of Article 167 of the Political Constitution] is mandatory when what is being discussed in the Assembly is a bill that seeks to establish rules of functioning and organization of the Judicial Branch, understood not only as provisions regulating the creation of courts of justice or jurisdictional competences, but even those that provide for the manner of exercising said competences, that is, on the way in which the Judicial Branch carries out its jurisdictional function, including properly procedural norms.” Certainly, it is evident that what was stated was limited to examining matters related to the exercise of the jurisdictional competences of the Courts of Justice, since it was on that particular aspect that this consultation focused. But, the Chamber did not say that this is the only instance in which the consultation under numeral 167 of the Political Constitution is mandatory; rather, what it said is that, in that case, it is mandatory, without referring to other cases in which it is also mandatory, such as matters relating to the administrative organization and competences of the Judicial Branch.

Judgment No. 2008-5179 of 11:00 hours on April 4, 2008, deserves separate commentary, since here, unlike the reading made by the majority, it is established that matters relating to the administrative organization of the Judicial Branch fall within the mandatory consultation stipulated by the aforementioned Article 167 of the Constitution. On that occasion, this Constitutional Court, as the maximum interpreter of the Political Constitution, when referring to the terms “organization or functioning” (organización o funcionamiento) of the Judicial Branch, contained in Article 167 of the Political Charter, as a condition for mandatory consultation with that Branch of the Republic by the Legislative Assembly, considered “…that a bill deals with such aspects when its articles contain explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or of an administrative nature attached to the Judicial Branch, or else creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions…”. It is not a change of criteria by this Court on the matter, but rather, within the jurisprudential line already drawn, a greater determination of the terms “organization or functioning” (organización o funcionamiento) used by Article 167 of the Political Constitution, to establish the cases in which bills that are in the legislative process must be consulted—mandatorily—with the Supreme Court of Justice. This judgment did not broaden, in any way, the assumptions of mandatory consultation; on the contrary, what it did was define them in a broader and more precise manner. Therefore, it was clearly determined there, that in those cases, but only in those, the consultation is mandatory. Thus it is understood that, in that same judgment, it was stated: “[i]t should be noted that such exegesis is required in order to maintain the balance of powers, without privileging one or another constitutional body, so that each can exercise its functions independently and separately as imposed by the constitutional text itself (Article 9 of the Constitution). In other words, the specification of such concepts avoids any collision, overreach, or exacerbation of the respective functions, in order to maintain the balance and containment of powers, because the purpose of the norm is not only the functional independence and budgetary autonomy of the Judicial Branch, but also the balance between the Legislative and Judicial Branches. Indeed, a broad interpretation of the terms employed by the original constituent, by the Full Court (Corte Plena), could lead to certain matters that, in a strict sense, are not related to the organization and functioning of the Judicial Branch, unjustifiably requiring a reinforced law, thereby slowing down or unnecessarily hindering the legislative function. On the other hand, the non-application by the Legislative Assembly of the constitutional norm, by mistakenly considering that the bill does not address the organization and functioning of the Judicial Branch, could cause an injury to the functional independence and budgetary autonomy of the Judicial Branch.” From the foregoing, it follows that everything relating to the matter of organization and functioning of the Judicial Branch, but only and strictly this—in order to guard the balance between functional independence and budgetary autonomy of the Judicial Branch, on the one hand, and the ordinary legislator's freedom of configuration, on the other—is what obligates the legislative body to make the consultation before the Supreme Court of Justice, without being able to extend it to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that matters relating to the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect affectation of the jurisdictional function, obligates the legislative body to present the consultation in the terms expressed in Article 167 of the Political Constitution. And it could not be otherwise, since the affectation or modification of the administrative organization of the Judicial Branch in general—and not only that pertaining to jurisdictional or judicial bodies in the strict sense—also impacts the Administration of Justice service it provides, and the independence that is constitutionally guaranteed to that Branch and to the judges as officials called to impart justice.

On the other hand, Judgments No. 1995-3063 of 15:30 on June 13, 1995, and No. 2002-4258 of 9:40 on May 10, 2002, cited in the majority vote as a basis for concluding that bills relating to the specific topic of the Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones) of the Judicial Branch do not need to be consulted with the Supreme Court of Justice, also do not have the virtue of providing the basis that, in relation to this matter, the majority of the Chamber claims they have.

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

Similarly, in Judgment No. 2002-4258 of 9:40 on May 10, 2002, the Chamber heard accumulated unconstitutionality actions filed against Article 4 of Law No. 7605 of May 2, 1996, insofar as it amends Articles 224, 226, and 236, subsections 1) and 2), of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), No. 7333 of May 5, 1993, as well as, by connection and consequence, against Article 33, subsection a), of the Disability, Old Age, and Death Regulation (Reglamento de Invalidez, Vejez y Muerte) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). The Chamber dismissed, among other alleged issues, the violation of Article 167 of the Political Constitution, on the basis that the reform to the pension regime of judicial employees that was challenged had no relationship with the organization or functioning of the Judicial Branch, for whose definition it referred to what was said in that regard in Judgment No. 1995-3063 of 15:30 on June 13, 1995, which, as already stated, only referred to the term of the functioning of the Judicial Branch, without making any reference to the topic of its organization. Thus, unlike the opinion expressed by the majority, said judgments do not exclude the matter relating to the Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones) of the Judicial Branch from the mandatory consultation with the Supreme Court of Justice, but only insofar as and to the extent that the respective bill has no direct relationship with the “organization or functioning of the Judicial Branch” (organización o funcionamiento del Poder Judicial), topics that, certainly, were not involved in the actions brought before this Chamber and resolved in the cited judgments. By this, the matter concerning the Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones) of the Judicial Branch is not excluded from the mandatory consultation with the Supreme Court of Justice, as the majority understands it, since this topic, considered in itself, is not excluded from said consultation; rather, it will depend on whether the bill in question contains or does not contain regulations relating to the organization or functioning of that Branch, an aspect that must be determined beforehand in each case to establish the mandatory nature or not of said consultation.

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

There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional Rule of Law in modern societies. This is because, unlike what is decided in the Legislative and Executive Branches, the decisions of the Judicial Branch, in the exercise of the jurisdictional function, are unappealable; that is, they have the force or authority of res judicata (cosa juzgada). This not only implies great responsibility but also the necessity of having a series of principles and guarantees that allow the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, appears as a sine qua non condition for the exercise of that delicate function. It is for the judge to decide on the single possible interpretation of the law, the Constitution, and the conventionality parameter, which would be impossible if they lack due independence. But this independence would be illusory if it does not necessarily imply adequate remuneration and a retirement right commensurate with their functions and responsibilities, both for the judge proper and for the personnel who assist and aid them in their function. Therefore, in matters of remuneration and retirement, it cannot be equated with the administrative sector. The necessity of compensating for the complexity and difficulty involved in exercising the jurisdictional function justifies, concerning the topic of action, that the retirement or pension of judicial employees not be the same as that of the rest of the public administrative sector. What is decided with the force of res judicata (cosa juzgada) in judicial instances has transcendental effects on legal certainty and on the law in force in a society; and, therefore, on social peace. In all this, judicial independence plays a leading role, for in a Constitutional Rule of Law; that is, in a Democratic State, that principle has an institutional projection in the Judicial Branch itself, vis-à-vis any of the other Branches of the State, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but even vis-à-vis the heads of the Judicial Branch. Nowadays, there is no Rule of Law if the Judicial Branch—with all its employees included—does not enjoy real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest rank in the hierarchy of norms, to the point that it is also stipulated as a Human Right. Indeed, the American Convention on Human Rights (Convención Americana de Derechos Humanos) has established, as a human right, to be heard by an impartial judge. In this regard, Article 8.1 establishes:

“Article 8. Judicial Guarantees.

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

In the explanatory statement that gave rise to the promulgation of the Law on Judicial Retirements and Pensions (Ley de Jubilaciones y Pensiones Judiciales), as an addition to the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), Deputy Teodoro Picado Michalski, on June 2, 1938, stated:

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

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

“11. The law shall guarantee the tenure of judges for the established periods, their independence and security, as well as adequate remuneration, pensions, and conditions of service and retirement.” Whereby, the United Nations recommends to all countries in the world that legal norms must guarantee judges remuneration, pensions, conditions of service, and retirement that are adequate and proportionate to the complexity and difficulty of the jurisdictional function they exercise. This must also be understood as extending to auxiliary justice officials, for, otherwise, such independence would be impossible.

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

“6.1 The professional exercise of judicial functions gives right to the remuneration of the judge, the level of which shall be determined in order to preserve them from pressures aimed at influencing their decisions and, in general, their jurisdictional conduct, thereby altering their independence and impartiality.

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

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

“Art. 32. Remuneration.

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

“Art. 33. Social Security.

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

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

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

Indeed, the Full Court (Corte Plena) approved the Statute of Justice and Rights of the Users of the Judicial System (Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial), in whose articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Judicial Branch and of judges, in its different facets. Article 24, relating to the material conditions of judicial independence, establishes that the State must guarantee “the economic independence of the Judicial Branch, by means of the allocation of an adequate budget to cover its needs and through the timely disbursement of the budget items,” which is intimately related to the provisions of the already cited Article 177 of the Political Constitution, regarding the constitutional allocation of a minimum of the Ordinary Budget for the Judicial Branch, as a manifestation of that independence.

Likewise, Article 49 of the cited Statute also enshrines, as do the international instruments examined, the principle of the irreducible salary of the judge: “Judges must receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” As already explained, this special regulation has its basis in the independence of the Judicial Branch, which must also be extended to the issue of the pension or retirement of judges and auxiliary justice personnel, since otherwise, the principle of judicial independence would not be possible.

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

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

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

In this vein, as was the case when the legislative consultation related to the bill for the Comprehensive Reform of Various Pension Regimes and Related Regulations, now approved by Law No. 9544 of April 24, 2018, called the “Reform of the Judicial Branch Retirement and Pension Regime, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its amendments,” was heard, the reasons for the dissenting vote are maintained. That legislative consultation was evacuaed by Judgment No. 2018-005758 at 3:40 p.m. on April 12, 2018, which addressed the various complaints regarding Article 239 of the law now at issue. At that time, the legislative process was reviewed insofar as it creates an Administrative Board of the Judicial Branch Pension and Retirement Fund, which it defines as a body of the Judicial Branch with functional, technical, and administrative independence to exercise the powers and attributions granted to it by law, a body to which functional independence is granted and a series of competencies are assigned, including, among others, increasing the employee contribution to the Pension Fund and hearing retirement applications, which implies a modification in the structure of the Judicial Branch. Similarly, competencies are removed from the Superior Council of the Judicial Branch; and, additionally, in Article 240 of the bill, the Full Court is given the obligation to issue a regulation for the election of the members of that Administrative Board, thus assigning it a competency it does not currently have. The aforementioned articles of the Law provide:

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

The Board is responsible for:

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

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

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

It shall be financed with a commission for administrative expenses arising from deducting five per thousand from the salaries earned by judicial servants, as well as from the retiree and pension benefits payable by the Fund. These resources shall be used to pay the per diems of the members of the Administrative Board, the salaries of its personnel, and, in general, its administrative expenses. Idle resources shall be invested in accordance with the provisions of Article 237 of this law.

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

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

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

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

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

The following persons may not be members of the Board:

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

The composition of the body must guarantee equal representation of both sexes, ensuring that the difference between the total number of men and women is not greater than one.” From a reading of Article 239, as transcribed, it is clear that a new body is created within the structure of the Judicial Branch, called the “Administrative Board of the Judicial Branch Retirement and Pension Fund,” which is granted complete functional, technical, and administrative independence to exercise the powers, competencies, and attributions granted to it by law, listed in subsections a), b), c), d), e), f), g), h), and i) of that same article, for the fulfillment of its tasks, for which it shall have instrumental legal personality. Thus, an administrative body is created anew and attached within the structure of the Judicial Branch, with determined competencies and attributions; and, concomitantly, competencies and attributions previously granted—by formal law—to the Superior Council of the Judicial Branch are withdrawn and eliminated. This circumstance alone, for the reasons stated, obliges the legislative body to necessarily consult the bill with the Judicial Branch, in the terms provided in Article 167 of the Political Constitution, since it modifies the administrative organization of the Judicial Branch by creating a new administrative body and eliminating competencies of the Superior Council in favor of that newly created body, which clearly affects the independence of that Branch of the Republic.

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

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

Despite this, that text was not the one approved in the First Debate by the Legislative Plenary on October 30, 2017, published in Supplement No. 268 to the Digital Gazette No. 212 of November 9, 2017, since the one approved was a substitute text introduced by motion via Article 137 of the Regulations of the Legislative Assembly. This latter text was not consulted with the Supreme Court of Justice, as was required, according to what was analyzed above, in accordance with the provisions of Article 167 of the Political Constitution.

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

“Article 73.— An action for unconstitutionality may be brought:

…

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

…”.

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

This Chamber, in support of the above, in Judgment No. 2001-13273, issued at 11:44 a.m. on December 21, 2001, when evacuating a legislative constitutional consultation regarding a bill to amend the Penal Code, insofar as it modifies aspects relating to the organization or functioning—merely administrative—of the Judicial Archive, held, unanimously, that:

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

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

The Full Court, in Session No. 27, of August 7, 2017, Article XXX, when evacuating the consultation with the Legislative Assembly on the Affirmative Majority Report approved by the cited Special Commission, ordered:

“It is considered that it relates to the structure and functioning of the Judicial Branch, because it directly affects the life project of all judicial servants as it means a reduction in retirement, even though they have met all legal requirements to fully enjoy the retirement right. This includes the payment of the necessary and corresponding quotas; the payment of income; contributions to both the Judicial Branch Retirement and Pension Fund and the Costa Rican Social Security Fund system, and another series of charges which, if the text is approved as proposed by the drafting Committee, would result in confiscatory actions.

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

The judicial, prosecutorial, Public Defense, and general staff career is affected, as those having more charges on their salary—four times more than in other regimes—would receive a lesser benefit.

On the other hand, the renewal of personnel who manage to stay is affected. The Judicial Branch would have elderly civil servants who remained working only because of the reduction their income would suffer if they retired.

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

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

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

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

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

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

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

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

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

B.— The legal and social dynamics that informed the amendment to Article 177 of the Constitution. It is necessary to address the majority's criterion, as we consider, with respect—but with equal vehemence—the reasons for which it is considered that a lax interpretation of the obligation for institutional consultation established in Article 167 of the Constitution is used, in addition to what has been previously stated. It is clear that, in general, the basic constitutional doctrine for the institutional consultation is based on similar reasons: to ensure that the legislator has first-hand the best information to legislate, that is, to have the specific technical criterion. It concerns the Constitutional Framer's recognition of institutional autonomies, as well as, in its highest degree, the defense of the independence belonging to a Branch of the State or a fundamental constitutional body of the State. In the processing of complex laws, such as those that might have a conflicting opinion from the Judicial Branch, is when a qualified majority of legislators is most required to promote those significant changes in legislation through a true consensus.

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

It is clear that criteria denying institutional consultation on the grounds that a bill is of a national or general nature cannot be used indiscriminately, especially because such a classification would encompass a great many bills that affect the national budget; in this situation, a great majority would have a national impact used to establish the defense of public objectives viewed from an economic standpoint. On the contrary, this minority considers that the jurisprudential criterion cited by the majority does not apply when dealing with bills that could affect the organization of the Judicial Branch, as a fundamental body of the State.

It is clear that judicial scrutiny must be more demanding, due to the more permanent scope over the judicial function (which is universal and with full jurisdiction over all legal disputes), which expresses the fundamental control functions, as much or more than those of semi-autonomous and autonomous institutions, because it relates to the functional specialty and independence of a branch of the Republic. The absolute weight of the fundamental institutional framework of the State must set the criteria for the examination and scrutiny that this Constitutional Court must conduct, such that it cannot be examined on the same terms as is done for other autonomous institutions, since the consequences are evidently very different for the State and the population in general. It suffices to cite Judgment No. 2017-009551 of 11:40 a.m. on June 12, 2017, which established that:

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

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

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

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

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

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

‘(…)

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

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

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

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

‘This constitutional reform—with which the autonomy of the Judicial Branch in the economic sphere will be definitively secured—will make it possible in the future to find an adequate solution to the multiple problems that said Branch currently faces due to the limitation of the economic resources assigned to it in the national budgets. These problems come from long ago and worsen day by day as a consequence of the growth and development of the population, which increasingly demands more administration-of-justice services. The judicial offices do not have sufficient personnel to attend to the many problems arising daily, and in material terms, with very few exceptions, they are housed in wholly inadequate premises and without sufficient furniture or equipment (…) The remunerations of judicial servants are, on the other hand, meager, such that the judicial career offers no stimulus or incentive whatsoever to those who wish to begin in it, and this discourages in many cases elements of vocation and capabilities that could, under other conditions, render their services as Mayors, Judges, or Magistrates’.

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

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

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

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

‘The Judicial Branch is only subject to the Constitution and the law, and the resolutions it issues in matters within its competence do not impose upon it other responsibilities than those expressly set forth by legislative precepts,’ derives the principle of the independence of the Judicial Branch, which encompasses both the organ or institution as a whole, and the Judge in the hearing of matters submitted to their judgment. In relation to this official, it must also be recognized that there is a double protection of their investiture, since the independence of the judge—as a guarantee of the parties involved in the matter sub judice—is externally and internally directed, in the sense that they are protected from influences and incidences—both external and internal—that may have one or another effect on the decision of a specific case submitted to their knowledge, so that they rule with strict adherence to the provisions of the current regulations; in other terms, the judge is protected so that neither the parties involved in the proceeding, third parties, superior judges in rank, ‘influential’ members of the Branches of the State, including the Judicial Branch itself, can influence their decision, therefore, much less would there be room for the obligation—imposed by a superior in rank—to rule in a specific way in a given case or to coerce the adjudicator in that sense. The guarantee of independence of judges, more than a guarantee for these officials—which it effectively is—, constitutes a guarantee for individuals (parties to the proceeding), in the sense that their cases will be decided with strict adherence to the Constitution and the laws.” By Judgment No. 1998-005798 of 4:21 p.m. on August 11, 1998, this Chamber established that:

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

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

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

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

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

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

Another reason is that a reinforced majority guarantees not only judicial independence from an institutional point of view, but also for the individual person of the judge, in which economic, social, and cultural rights, established through a social security and pension regime, are affected. It cannot be denied that the Judicial Branch forms part of a whole, the ‘State’; its strategic and key position within its organization must also be felt, with the public functions of its officials being highly specialized and adhering to the Law, as was described earlier in the background of this Court, and whose function is final in the resolution of conflicts and as a pacifier thereof.

This clearly has a cost and sacrifice for its personnel, which must be compensated by the “State,” but even more so in a functional democracy like Costa Rica’s, which must assume not only the economic aspect of its support but also its protection.

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

Thus, the undersigned justices consider that Law No. 9544 of April 24, 2018, contains essential defects in the legislative procedure that affect it in its entirety, consisting of the failure to consult the Judicial Branch on the text approved by Parliament by absolute majority rather than qualified majority, which affects it in its entirety (Article 167 of the Political Constitution), by affecting its organization, structure, functioning, and independence; and, therefore, it is contrary to the Law of the Constitution. By reason of the foregoing, it is inconsequential—for the undersigned judges—to proceed to analyze the rest of the substantive arguments raised by the claimants against the substantial content of the law, except in those instances where taking a position was required so that there would be a fully concurring vote (Article 60.2 of the Civil Procedure Code), which is reflected in the majority judgment of this Chamber.” Thus, the undersigned justices Cruz Castro, Salazar Alvarado, and Garita Navarro, set forth our additional reasons.-   F.-) On the use of Article 208 bis (current 234 bis) as a procedural defect In addition to the procedural defects noted in the dissenting vote indicated in the preceding whereas clause, I have considered that, furthermore, the application of Art. 208 bis (current 234 bis) of the Regulations of the Legislative Assembly to the law challenged in this action renders it unconstitutional.

In the same sense as I have expressed through vote number 2011-015749 of 09:32 hours on November 16, 2011 (based on the considerations given in judgments No. 2005-398, 2007-2901, and 2008-7687), and vote number 2012-004151 of 16:00 hours on March 27, 2012, I have dissented from the majority’s view because I consider that Article 208 bis of the legislative regulations violates the Political Constitution, since the possibility of applying a special, ad hoc procedure to a bill infringes the principle of legal certainty, the right of political participation, representation, as well as the democratic principle and the right of amendment.

“Accepting the possibility that the Assembly apply special procedures to the processing of amendments to its Regulations and bills, under the terms established in Article 208 bis, without defining beforehand the rules of the procedure to be followed, constitutes a clear violation of the principle of legal certainty and the democratic principle, since this would be the only way in which deputies would know previously and with sufficient advance notice the procedure to which they would be subject and thus exercise the corresponding participation and control mechanisms. I have pointed out that, if the legislator did not clearly establish the procedural rules for applying what is intended in Article 208 bis, omitting to establish legislative regulations or practices, it incurred an evasion or breach of its constitutionally assigned duties. Article 208 bis, in the terms in which it is drafted, implies that each time the majorities so decide they may, as is already happening, by way of an order motion, grant exceptional processing to the bill being processed, and its discussion would remain subject to procedures not established in the Regulations, that is, amid a situation of legal uncertainty. Leaving to the discretion of a majority the procedure to be applied in each specific case, without it being made known beforehand to the entirety of the members of Parliament, causes a violation of the democratic principle to the detriment of minorities, insofar as nothing guarantees that under the proposed scenario minorities will not be affected in terms of the exercise of the constitutional rights of their representatives in Congress.

What happened in the procedure approved to consider the consulted bill is a clear example of what has already been stated, since being an order motion, it does not, in principle, require being publicized with sufficient advance notice, regardless of its complexity. Nor do motions to modify it apply, since it would have to be a new proposal, for which the other factions have an extremely short, almost immediate time, and once the motion is approved by the majorities, they have no other option than to submit to the limited participation granted to them in the created procedure. I have also considered in this hypothesis that the right of amendment is violated.

Every deputy holds the constitutional right to participate in the law-making process, and thus, to influence its final content. Certainly, the Legislative Assembly has the power to provide its own regulation, such as establishing special procedures; however, the manner in which they are being authorized is prejudicial to the principle of legal certainty, the right of political participation, that of representation, as well as the democratic principle and the right of amendment of deputies, insofar as the omission to regulate said procedures with the necessary advance notice and participation by all deputies renders them nugatory. For further elaboration, the dissenting vote I subscribed to in the aforementioned judgment from the year 2012 is transcribed:

“IX.—DISSENTING VOTE OF MAGISTRATE CALZADA AND MAGISTRATES ARMIJO AND CRUZ, DRAFTED BY THE LATTER. The unconstitutionality of Article 208 bis of the Regulations of the Legislative Assembly, as well as its application to various legislative procedures, has been the subject of repeated challenges before this Chamber, in which this Chamber, by majority, has considered its conformity with the Constitution, starting from judgment 2008-7687, adopted with the dissenting vote of Magistrate Calzada, Magistrate Cruz, and Magistrate Armijo, which we reiterate on this occasion and declare the action granted for the following reasons:

As a starting point, it is necessary to reiterate what was expressed by this Chamber in judgment number 2011-04778 of fourteen hours and thirty-one minutes on April thirteenth, two thousand eleven, regarding the nature of Parliamentary Law and the limits of the Chamber’s jurisdiction regarding legislative procedure:

“Nature of Parliamentary Law and limits to the Chamber’s jurisdiction regarding legislative procedure. The fundamental mission of parliaments is to adopt decisions with the participation of the totality of political forces that represent the diverse sectors of civil society. Parliamentary law serves an instrumental function to that end—though it also has a political function—of facilitating and ordering that process. This law has the characteristic of arising as a product of the ‘interna corporis,’ of the self-regulatory capacity and own dynamic of parliaments. In that sense, it is not a law that is created premeditatedly, but rather discovered, born out of practice; therefore, the customary aspect (custom) and interpretive aspect have great importance. In that sense, the power of self-governance of Parliaments has a solid tradition and historical justification. Parliamentary law is characterized by being spontaneous, dynamic, and flexible. It is nourished by everyday life, by the political reality in which it operates and where constant transformations occur that make normative responses necessary, often contrary to the classical dogmas of other legal branches, as is the case, for example, of the principle of singular non-derogability of the regulation, which has a different treatment than in administrative law, and gives way—on some occasions—in the parliamentary sphere to the dynamicity that parliamentary procedures demand. Its limit, of course, lies in the Constitution, in the principles and values of the ideological regime in which it operates. For this reason, this Chamber has recognized that its function in matters of legislative procedure is solely to declare those substantial defects that violate the constitutional principles and values applicable to the matter, because otherwise it would be affecting the self-regulatory and functional capacity of Parliament (interna corporis), distorting its role as guardian of constitutional supremacy, for that of a kind of ad hoc senate (judgment number 2007-9699, at ten hours on July fourth, two thousand seven). In this way, as this Court stated in judgment 2005-07961, at seventeen hours and fifty minutes on June twenty-first, two thousand five:

‘The self-determination of Parliament regarding its internal actions—recognized repeatedly by this Court—‘interna corporis,’ is one of its essential powers expressly recognized by the Political Constitution in its Article 121 subsection 22), and which is consubstantial to the democratic system. The object pursued with the attribution of jurisdiction to self-organize of the Assembly is that, by its means, its procedures of action, organization, and functioning, and consequently its internal organization, be regulated within the parameters demanded by the democratic principle, equality, and non-discrimination, with all its derivatives. This power is developed with absolute independence from the other organs of the State—by virtue of the principle established in Article 9 of the Fundamental Charter—and has as limits: adherence to the Law of the Constitution, that is, to the set of constitutional values, principles, and norms, among which are those mentioned above, respect for the principles of reasonableness, rationality, and proportionality, so that those who exercise public powers cannot, by action, omission, or mere material action not based on a valid administrative act, violate or threaten fundamental rights, since in a democratic State there exists a constitution of liberty, the object of which is to guarantee the individual the full enjoyment and exercise of human rights, which are currently recognized in the Political Constitutions of the majority of countries and in international human rights treaties (International Human Rights Law). It is not legitimate, then, to use powers for purposes other than those assigned by the legal system (defect of misuse of power) equally or beyond what is reasonable (defect of excess of power). Having said the foregoing, the Chamber considers that it should not interfere with the Parliament’s right of self-regulation, unless, as stated, any of the stated principles is violated, which in this specific case would imply the impairment of the right of amendment, understood as the participation mechanism that deputies have to influence the law’s formative process. In this way, the Chamber’s powers in this matter are exercised from the perspective of an arbitrator, who moderates and contains excesses but does not interfere with an intrinsic constitutional power granted to another constitutional organ, so that only in the face of evident or gross violations of the constitutional principles governing parliamentary law would its intervention be legitimate. Parliament has the right, in exercise of its own self-regulatory power, to reconcile or balance, in the face of specific situations, not only the right of amendment but also the other constitutional principles that also bind its actions, such as respect for majorities and reasonableness, that is, the harmonization of each and every one of the constitutional principles that must coexist during the legislative procedure is a jurisdiction proper to Parliament and specifically to the Director of the debate and the deputies, and it is to be supposed that such functions are carried out in adherence to the legal system and its principles […].” (The highlighting is not from the original).

Said judgment emphasizes that the Chamber’s intervention in matters of legislative procedure, in accordance with what has been stated, should only occur:

‘[…] in case of the use of these powers with evident abuse of power, resulting in the annulment of a right and not in its harmonization with the rest of the constitutional principles of parliamentary law […] The contrary would imply, in our view, disrespect for the self-regulatory power and the democratic principle. The Chamber should not, then, constitute itself as an instance of substitution for the exercise of constitutional powers and of political debate and dialogue, unless, as indicated… the content of some fundamental right is suppressed or annulled.’ The democratic principle. Our minority vote agrees with the claimant, for the same grounds already expressed in the dissenting votes to judgments number 2005-398, 2008-07687, and 2007-2901 of 17:30 hrs. on February 28, 2007, based on the democratic principle, the respect for which is essential for any examination of the conformity or non-conformity with the Constitution of any norm or act. On this matter, this Chamber has expressed, unanimously, that:

‘what the legislative procedure intends is to ensure compliance with the democratic principle within a society that has adopted it as its own for its political institutions. Since perfect democracy is an unattainable ideal, the democratic principle constitutes the parameter that allows deducing the degree of proximity that a given society achieves, at a given historical moment, with respect to the ideal and its vocation to approach it as much as possible. At a minimum, the democratic principle demands respect for the principles of political participation and representation—including everything concerning respect for minorities—the basis of our political system. The latter unfolds into aspects such as the legitimacy of the means used for the designation of the various representatives and—no less important—the possibility of opposing, through the use of legitimate means, the majority will on the part of groups representing minorities. From the foregoing observations, it can be said that procedural violations that constitute violations of the democratic principle, the inescapable direction of parliamentary activity, are unconstitutional. Likewise, legislative processes that, due to being accelerated or impetuous, provoke debates that remain devoid of a calm and reflective process in quality, and that also suffer from a broad projection of legislative activity, as guaranteed by Article 117 of the Political Constitution, constitute substantial infractions. Furthermore, substantial procedural defects have been considered to include the omission of publication and the omission of carrying out constitutionally mandated mandatory consultations. Regarding the first aspect, as the Legislative Assembly is a representative organ of the national community, the publicity of parliamentary proceedings is essential, because sovereignty resides in the people and the deputies are merely their representatives (Article 105 of the Constitution); therefore, their activity must necessarily transcend to the entire community, to such an extent that some specialists in Constitutional law define it as an organ of publicity’ (judgment number 2012002675 at eleven hours and fifty-two minutes on February twenty-fourth, two thousand twelve).- Costa Rica is a representative democracy, which does not imply that the rulers of a given historical moment can make their decisions without hearing the voice of those who gave them such mandate, that is, the will of the people as sovereign power. This clarification is warranted, since in the absence of a mechanism that might have been used to intuit the citizen will, the only possible mechanism in a democracy is to open the doors of dialogue, of calm, thoughtful, open discussion, because otherwise, we would run the risk of falling into a ‘democratic tyranny,’ grossly violating the democratic principle, which is what guarantees to the inhabitants of our country that the interests of the Nation will be guarded zealously and for the good of all. It is necessary to indicate, for the purposes of this reasoning, that one thing is a reform of the Regulations, which seeks to order and adjust to the times (two-party system—multi-party system) in their daily work, so that the Legislative Branch is more effective in regulating the situations that occur in the country, and another is to generate reforms to a specific article for the processing of a specific case. Our Fundamental Charter does not regulate the manner in which the Legislative Assembly’s regulations must be reformed, thus it is this same normative text that has had to regulate the procedures that have been deemed appropriate and consistent with the Law of the Constitution, which is essential to guarantee legal certainty, the right of representation, and the protection of the democratic principle within the legislative procedure. The power that this organ has to issue the norms of its interna corporis is indisputable, provided for not only in the Fundamental Charter in subsection 22) of Article 121, but also consubstantial to the democratic system and specific to the Legislative Assembly as a constitutional power. Therefore, the Chamber has also recognized this self-regulatory power and, thus, from that perspective, it has been clearly considered that Parliament has the power to establish special procedures, if it sees fit, but that these must be defined expressly and in detail, since, otherwise, accepting the possibility that the Assembly apply special procedures to the processing of amendments to its Regulations and bills, under the terms established in Article 208 bis, without defining beforehand the rules of the procedure to be followed, constitutes a clear violation of the principle of legal certainty and the democratic principle, because according to the expressed criterion, this is the only way in which deputies will know beforehand and with sufficient advance notice the procedure to which they will be subject and thus exercise the corresponding participation and control mechanisms.

Legal certainty. If the legislator did not clearly establish the procedural rules for applying what is intended in Article 208 bis, or forgot to establish legislative regulations or practices, it incurred an evasion or breach of its constitutionally assigned duties. The introduction of the cited rule into the Regulations, in the terms in which it was approved, implies that each time the majorities so decide they may, as is already happening, by way of an order motion, grant exceptional processing to the bill being processed, and its discussion remains subject to procedures not established in the Regulations, that is, amid a situation of legal uncertainty.

Principle of publicity. Regarding the principle of publicity, as well stated in the majority vote, the procedure is created by means of an order motion, which, according to Article 153 of the Regulations, may be presented at any time during the debate, proceeding to its immediate discussion. They do not require being announced more than at that very moment, which is insufficient for it to be reviewed prior to its adoption by the deputies. That is why leaving to the discretion of a majority the procedure to be applied in each specific case, without it being made known beforehand to the entirety of the members of Parliament, causes a violation of the democratic principle to the detriment of minorities, insofar as nothing guarantees that under the regime and application of Article 208 bis of the Legislative Regulations, minorities will not be affected in terms of the exercise of the constitutional rights of their representatives in Congress. Once the motion is approved by the majorities, the minority factions have no other option than to submit to the limited participation granted to them in the created procedure.

Unreasonable restriction of the right of amendment and others. Every deputy holds the constitutional right to participate in the law-making process, and thus, to influence its definitive content. Although the power that the Legislative Assembly has to provide its own regulation is recognized, such as establishing special procedures, the form in which it authorizes it is prejudicial to the principle of legal certainty, the right of political participation, that of representation, as well as the democratic principle and the right of amendment of deputies, insofar as the omission to regulate said procedures with the advance notice and necessary participation by all deputies renders them nugatory.

In summary, Article 208 bis of the Regulations of the Legislative Assembly constitutes an element of total rupture with the stated principles and allows that, by means of a motion approved by two-thirds of the deputies, the Legislative Branch may act against its condition as an organ guaranteeing popular representation, according to the structured design of Title Nine of the Political Constitution of 1949, to the substantial detriment of the democratic principle.- The undersigned are aware of the implications of the annulment of that norm, through which numerous laws have been approved, some of special importance for the country. However, since the application of that procedural norm has been done under the protection of a constitutionally consolidated practice by effect of this Chamber’s own jurisprudence, it is appropriate to apply, to the present case, the “ex nunc” effectiveness of the granting ruling, by virtue of the doctrine expressed in judgment 1-92 of 14:00 hrs. on January 7, 1992, and repeated in judgment 2-92, of 14:15 hrs. on the same day, in the sense that:

"...the interpretation that, as of the cited resolution, the Chamber gives to Article 195 subsections 4 and 7 of the Political Constitution, in its function as interpreter of the Fundamental Charter and whose precedents and jurisprudence are recognized as having binding force 'erga omnes,' does not generate 'per se' the unconstitutionality of other reforms approved prior to that judgment and that had not obtained a qualified majority in the three debates of the two legislatures. On the contrary, all of them were incorporated into the Fundamental Charter under the protection of a consolidated constitutional practice, since the unchallenged decision of the President in session on October 29, 1962, which must be understood as corrected as of the new interpretation established by the Chamber, such that its effects are confined exclusively to those produced in the future, but never to be understood that through it other prior ones may be affected, because if so, the principle of 'legal certainty' would be violated. Consequently, the corrective criteria that this Chamber issues on matters of constitutional reforms in the exercise of preventive constitutional review must be understood with ex nunc and not ex tunc effects, all within the philosophy that the Law of Constitutional Jurisdiction encompasses, in the chapter referring to legislative consultations of constitutionality and the aforementioned principle of legal certainty." Although the foregoing criterion has been sustained by the Chamber in relation to corrective criteria on matters of constitutional reforms issued in the exercise of prior constitutional review, it is not only valid but necessary to apply it to the present case, no longer in the exercise of advisory review but in a contentious case, for two reasons: the first, because by virtue of the fact that the Constitution and, derived from it, the Chamber’s jurisprudence, are the foundation and root of legal certainty, both for the Supreme Branches and for all public entities, individuals, and even for third-party States through the adoption of agreements and treaties, when the Legislative Branch has adopted agreements and approved laws through the application of procedural rules that were constitutionally valid at the time of their application and with the endorsement of the Constitutional Court, legal certainty would collapse if, in cases such as the present one, when the prevalence of a criterion on the constitutionality of a procedural norm applied in good faith by the Legislative Branch, repeatedly, over time, is reversed, it were to have an ex tunc effect, as declaratory judgments of unconstitutionality of substantive norms, including constitutional reforms themselves, typically do in principle. In second place, the second paragraph of Article 91 of the Law of Constitutional Jurisdiction provides that: “The constitutional annulment judgment may graduate and dimension in space, time, or substance, its retroactive effect, and shall dictate the necessary rules to prevent it from producing severe dislocations of social security, justice, or peace,” which is why in this case it is necessary, in order to avoid those severe dislocations, to dimension the effects of the granting ruling, a power which this Chamber has already used on various occasions (see, for example, judgment number 01698-12 of twelve hours and twelve minutes on March fifth, nineteen ninety-nine, 3410-92 of fourteen hours and forty-five minutes on November tenth, nineteen ninety-two, and 2010-021258 of fourteen hours on December twenty-second, two thousand ten). For the foregoing reason, the claim of deputies Manrique Oviedo, Jeannette Ruiz, Ana Eugenia Venegas, and Gustavo Arias Navarro that, in the event that Article 208 bis of the Legislative Regulations is declared unconstitutional, all laws approved through the special procedure provided for in that norm be declared unconstitutional is rejected; instead, the effects of the judgment are dimensioned in the sense that the unconstitutionality does not affect, in this case, the laws and agreements approved through procedures carried out in application of the challenged norm, except for those legislative procedures that have not been approved in first or second reading as of the date of publication of the respective notice.-“ Thus then, since I have considered that Article 208 bis of the Regulations of the Legislative Assembly is unconstitutional, it follows from this that, as to form, the bills approved in application of that norm would also be unconstitutional, as is the case with the challenged law.

In conclusion.- In accordance with the indicated procedural reasons (violation of the principle of technical reasonableness) and the additional procedural reasons (violation of constitutional Article 167, the principle of judicial independence, and for use of the abbreviated procedure), I consider that the brief period established in the challenged norm violates the right to obtain a dignified, proportional, and reasonable pension, the principle of equality, the principle of progressivity of social rights, the principle of legitimate expectations and consolidated legal situations, in addition to international regulations.

  IX.— DOCUMENTATION PROVIDED TO THE CASE FILE.

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

Therefore:

By majority, the accumulated actions are DECLARED WITHOUT MERIT. Justice Cruz Castro dissents, declares the action granted, and considers that to be in conformity with the Law of the Constitution, the transitional regime should have covered judicial employees who had twenty years or more of service in the Judicial Branch.

Judges Salazar Alvarado and Picado Brenes dissent and partially grant the action, finding that there is an unconstitutional omission in failing to address a twenty-four-month transitional provision in accordance with the actuarial background.

Fernando Castillo V. President Fernando Cruz C. Luis Fdo. Salazar A. Jorge Araya G. Aracelly Pacheco S. Alejandro Delgado F. Ana María Picado B.

Case File No. 19-024589-0007-CO Dissenting vote of Judge Salazar Alvarado and Judge Picado Brenes. With due respect, we issue this dissenting vote and separate ourselves from the majority vote, with the following arguments: A.- Regarding the reference to the legislative procedure followed in Law No. 9544, concerning the failure to consult the Judicial Branch and the omission of institutional consultation under Article 167 of the Political Constitution, as well as Article 208 bis of the Regulations of the Legislative Assembly. On these points, we consider it unnecessary to repeat the arguments regarding the legislative procedure followed for Law No. 9544 of April 24, 2018, which were addressed in Judgment No. 2018-005758 at 3:40 p.m. on April 12, 2018 (dissenting vote of Judges Cruz Castro, Salazar Alvarado, and Hernández Gutiérrez), reiterated in Judgment No. 2021-11957 at 5:00 p.m. on May 25, 2021 (dissenting vote of Judges Salazar Alvarado and Hernández Gutiérrez). Likewise, those arguments are already in the case file, specifically in interlocutory resolution No. 2022-008712 at 9:10 a.m. on April 20, 2022, so we refer to the reasons duly expressed and recorded therein. However, for a better understanding, we summarize from those judgments that the procedural defect affected Bill No. 19,922, regarding the violation of Article 167 of the Political Constitution; and consequently, the entirety of Law No. 9544, and that only a position needed to be taken for a fully conforming vote to exist (Article 60.2, Civil Procedure Code). Thus, on the merits, we address the legislator's omission in failing to consider the factors of time served, gender, and age for the differentiated assignment of pensions between men and women, and the dismissal of those claims due to the absence of technical studies in the specific Costa Rican context. B.- The problem of reasonableness and proportionality. From the standpoint of Constitutional Law, it is clear that all legislation approved by the Legislative Assembly must be protected under the Social State of Law (Estado Social de Derecho). To assume otherwise would imply accepting that the state apparatus would be authorized and legitimized to adopt unjust and arbitrary measures, which by definition would be contrary to fundamental rights and the common good. Fortunately, due to the hierarchy of the Law of the Constitution, its regulations, due to the potency and resistance of superior norms of the legal system, are enforceable, and this has formal implications in the law-making process, and materially safeguards the content of fundamental rights. Thus, the conformity of all actions of public power (laws and public acts in general) requires being in conformity with the ideology of the Political Constitution, and the binding obligations of international human rights law, including international labor legislation, and the general principles of International Law. The problem attributed to the challenged Transitional Provision is whether it lacks a technical basis to support the eighteen-month period granted for the application of the new reform, which involves the technical reasonableness of the norm regarding the proportionality between the means used and the end sought by the norm, within the context of pension regimes. Indeed, for the foregoing, we must bring up the opinion of this Constitutional Chamber, No. 2017-0011714 at 12:00 p.m. on July 26, 2017, which analyzed a bill that allowed the transfer of insured persons under the Disability, Old Age, and Death Regime administered by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) to the National Teachers' Fund (Magisterio Nacional); and on that occasion, it was established that: “In this matter, it is necessary that the Legislative Assembly have technical studies demonstrating that the entry into force of the Law will not affect the financial sustainability of the regime of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social), especially in the current situation, where its sustainability has been questioned, as has been known to the public. In the absence of technical studies in this direction, and having established that the bill entails an impact on the regime's Reserve, there is no doubt that a violation of constitutional provision 73 has occurred. The situation would be very different if the technical studies existed, for in the event that no impact on the financial sustainability of the Disability, Old Age, and Death regime is demonstrated, the legislator, constitutionally speaking, would have no impediment to exercising the power to legislate. As is well known, this Tribunal has required in environmental matters the need for technical studies to reduce protected areas, and has concluded that this omission constitutes an essential defect in the legislative procedure (see advisory opinion No. 2012-13367). Following that same doctrine, the optional legislative constitutional consultation is resolved, in the sense that the Bill titled: \"Reform of the Pension and Retirement System of the National Teachers' Fund (Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional)\", legislative file number 17,561, is unconstitutional for violation of Article 73 of the Political Constitution, since it lacks a study that technically and scientifically determines the real impact on the Reserve of the Disability, Old Age, and Death regime of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), a defect that is essential to the legislative procedure.” In addition to the interpretation given by the Chamber, we believe it is important to add to the preceding reasoning that there are specific international obligations that compel the country to technically support changes and reforms affecting pension regimes. In this regard, technical studies are essential to demonstrate that the means used are adequate for the proposed legal ends, without abandoning individuals who might retain their rights and legitimate expectations. When a modification or legal reform to a pension regime is sought, it logically revolves around the interest of seeking a positive impact on the fund and its benefits. But, as happened with the case transcribed above, the absence of an actuarial technical study was manifest and evident, which affected the determination of the \"… real impact on the Reserve of the Disability, Old Age, and Death regime, a defect that is essential to the legislative procedure.\" It is clear that when the Social State of Law (Estado Social de Derecho) must exercise the initiative for the reform of a pension regime, the core foundation is financial equilibrium, as established in international legislation, which will be addressed below. In this sense, when eliminating risks, it must be demonstrated that there will be a positive impact on the reserve, to guarantee sustainability and financial equilibrium, and the future granting of benefit rights. Thus, it is for the technical study to chart the course to support the measures that the legislation must take so that a reform is adequate to sustain current and future benefits. By Judgment No. 2020-19274 at 4:30 p.m. on October 7, 2020, the Chamber had the opportunity to assign the normative force of Article 71 of Convention No. 102 of the International Labour Organization, in the distribution of contributions and taxes, as well as in employer and state contributions, and held that: “… the right to social security at the international level must be characterized as being composed of a minimum level of benefits comprising at least basic health care, sickness cash benefits, unemployment benefits, old-age benefits, benefits in case of employment injury and occupational diseases, family benefits, maternity benefits, invalidity benefits, and survivors' benefits, all in accordance with Convention No. 102 of the International Labour Organization. The right to social security and social protection refers to the right that social security coverage not be denied arbitrarily or unreasonably, and the right to equality in the enjoyment of adequate protection in case of unemployment, sickness, old age, or lack of means of subsistence in circumstances beyond the person's control.” Furthermore, it was indicated that: “… the Convention constitutes a binding framework of reference for States; that is, it contains provisions that are the basis of the regulations that they may subsequently approve according to the different types of coverages to which they committed. It is worth noting, as has been indicated on other occasions, that States may improve those standards. In accordance with that regulatory framework, Part XIII of the aforementioned Convention contemplates other \"Common Provisions\" to the coverages offered to the insured, including the causes for suspension, the possibility of judicially discussing matters related to the rights involved, as well as the rules governing administration in general. This means that they are rules that amalgamate and unite some aspects of the coverages; and consequently, some administrative aspects must be considered together. In this way, it contains two core principles, the principle of financial solidarity (collective financing and financial solidarity in International Labour Organization documents) and the principle of State responsibility, where the first enunciates the obligation contained in section 1) of Article 71 of the indicated Convention No. 102 (…). (…) the principle of State responsibility in the provision of benefit obligations would be present in the same Article 71, but in section 3) of the aforementioned Convention No. 102. Said provision provides: \"The Member shall accept general responsibility for the provision of benefits provided in compliance with this Convention, and shall take all measures required for this purpose; it shall ensure, where appropriate, that the necessary actuarial studies and calculations concerning financial equilibrium are made periodically, and in any event, prior to any change in benefits, the rate of insurance contributions, or the taxes allocated to cover the contingencies in question.\" It is clear how the State is the guarantor of the country's pensions. This provision establishes a series of State guarantee obligations, especially that relating to leadership in the provision of benefits granted, which includes the formalities it must observe when exercising the implicit obligation to monitor and materialize all measures involving the preservation of pension funds, including corrective ones.” The international obligation established in Article 71.3 of Convention No. 102 of the International Labour Organization, regulations governing the issue of balances and imbalances of pension and retirement funds, obliges the State -as the principal responsible for the maintenance of pension funds- to surveillance and control, but referenced with technical support. From the norm arises the general responsibility that implies both when the State assumes the administration of the funds, and when it does so indirectly. In this sense, it always assumes the international commitment to ensure and control the effective materialization of the benefits -present and future- granted in the Convention. It must therefore be an active subject in the surveillance and control of measures that allow those benefits. Since pension funds are not static, the principle of State responsibility translates into permanent surveillance and control over benefits, their fluctuations, and whether the rights can be maintained over time. That is, it requires maintaining the sufficiency of resources so that the level of benefits can be maintained with premiums and/or contributions, taxes, and with administrative expenditures, an obligation that falls to the State, or the entity responsible for maintaining them over time. It is important to mention that Article 71 of the cited Convention No. 102 was pivotal in the judgment of this Chamber that resolved the problem of solidarity taxes and contributions to high-profile pensions, applying the conventional limit to those contributions at 50% on salaries/benefits. Thereby, the provision was considered binding for the Costa Rican State, so by parity of reasoning, it must also be a norm that defines and determines everything that must be resolved in this matter. In the case before us, when the reduction of rights and benefits of pension regimes begins, we consider that there is a risk that in the process some of them may be lost without clear justification, and that it goes against international standards, when these rights cannot be made effective. The Social State of Law (Estado Social de Derecho) must allow an adequate interpretation of the loss of benefit rights, which while operating within an economic context, must find limits, among which must be that it cannot ignore the time elapsed of contributions based on salaries and contributions. Article 71, under discussion, should be treated as protection against the arbitrary decrease of benefits, against the dismantling of protection in an unjustified manner, whether with insufficient or omitted actuarial studies, all of which would be non-conventional for being contrary to the international obligation, and because the rights must also be carefully defended to prevent the unjustified loss of rights to social protection. The question arises, do they only protect current or granted benefits? The answer should be no; for this, reform projects must contain a transitional norm, as the economic field should not be abstracted from the implications that its decisions have on economic, social, and cultural rights, which are also reasonably enforceable benefits. They cannot be considered isolated compartments from one another, nor can one dominate the other except through a reasonable exercise and balancing of the rights and interests involved. The legislator's freedom of configuration is not denied; however, it is important to remember that it has the limits established in the Law of the Constitution (values, principles, and rights), especially when it is subject to technical studies that are legally required, as established by the Chamber's jurisprudence. We consider that the obligations arising from this provision 71.3 of Convention No. 102 require that the formulation of legal reforms respond to the behavior of the funds and their sufficiency, and that these amendments respond to precise and correct technique at two moments: a) when appropriate to exercise periodic control due to the movements inherent in operation and management, and b) in any event, \"prior to any change in benefits, the rate of insurance contributions, or the taxes allocated to cover the contingencies in question.\" What is established in this norm allows ensuring protections in favor of the agreed benefit rights, especially those granted, to constrain reforms or amendments to the pension system to a mathematical technique linked to actuarial studies and calculations that reflect the condition of resource equilibrium, which is the international obligation that the Costa Rican State acquires. As was done in the aforementioned Judgment No. 2020-19274, in which reference was made to the General Survey concerning social security instruments, in light of the 2008 Declaration on Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution of the International Labour Organization), Report III (Part 1B), held at the International Labour Conference, 100th session, 2011, and which at this time, it is also important to transcribe the following: “465. The Committee wishes to underline that the sound financial and legal management of social security systems which are being reformed could be greatly facilitated if an actuarial valuation had to be carried out before their submission to parliaments. The Committee has observed that all too often changes in social security legislation are made hastily in the light of immediate interests without first carrying out a substantive financial and economic analysis of the effects of the reform and the possible costs which society will have to meet. Having observed that this is a common situation even in developed countries, it considers it likely that this also extends to developing countries. There is no doubt that social security must be governed by legal rules, but if the laws are changed, the clarity provided by independent actuarial assessments of the corresponding implications is essential not only from a short-term perspective, which is usually how governments evaluate such effects, but also from a long-term perspective in relation to the impact any new law may have on the financial sustainability of the system. 466. If social security legislators were to approach actuaries to work together as much as possible, the latter should in turn do the same by adopting a proactive approach towards social security legislation. An actuarial study should contain clear and objective observations on any matter affecting the financial status of a social security scheme, pointing out the deficiencies of the legal provisions governing the functioning of that scheme. These deficiencies in national legislation could be detected by comparing that legislation with the minimum standards of Convention No. 102 and, through the formulation of alternative future development hypotheses, determining the probability of a national social security scheme being sustainable. Actuarial studies and reports are important tools for legislators and national policy-makers to take measures aimed at complying with ILO social security standards; such tools are useful in cases where reforms aim to improve levels of social protection, but otherwise they become vital” (emphasis in original). In this way, the need to grant pro-fund protection in accordance with actuarial technique is addressed, and we also maintain that it must allow necessary space to resolve the relevant questions about changes to the economic and social rights it grants. Opportunistic and hasty approaches to reforms are completely discarded, due to their social cost. But it must be clear that every legal reform to the pension system requires, on the one hand, substantive analysis from an economic and financial perspective, and also on the other immediate side, the implications for the protection of present and future rights. All of this, it is possible to affirm, derives from Article 71.3 of Convention No. 102 of the I.L.O., which is established as the other international obligation. From all the foregoing, we conclude that one of the main purposes of the cited article 71 is to serve as a safety mechanism against the erosion of social security benefit rights, within the broad section of economic, social, and cultural rights, as it seeks equilibrium in a double sense: protection in favor of those who require assistance when the foreseen contingency occurs, and the other, to serve as a postulate in favor of the rationality of measures to ensure perpetuity of the fund without incurring in arbitrariness and lack of protection. It must be clear, as has been affirmed in the monitoring bodies of economic, social, and cultural rights in Europe, where it is stated that both cuts and costs should be borne collectively, in an equitable manner by society to avoid first affecting persons of less resources, taking into account the economic situation of the country and the class of persons protected. In our country, Article 73 of the Political Constitution establishes to a large extent the forced contribution of the State, employers, and workers, among other forms of financing. Observance of Article 71 ensures the fundamental purpose of pension systems: to grant rights from an actuarial point of view, and to maintain them once granted as acquired rights and consolidated legal situations, especially when they enter private patrimony. In such cases, measures must be adopted to promote the sufficiency of resources in favor of the pension fund; that is, through legal reforms so that it can operate at optimal levels of protection, with equilibrium in favor of Social Security protection. The same should be understood from the point of view of granting rights, that it must not be detached from the substantial aspects of Economic, Social, and Cultural Rights, in order to prevent the deprivation and unnecessary restriction of potential rights, when the issue is adjusting, limiting, or even slowing down the granting of benefit rights, but when it is adequately supported by technical studies. Of course, it must be insisted that this should not be understood as a dismantling of the Social State of Law (Estado Social de Derecho). By virtue of the pro-person protective principles, which privilege, prefer, and favor the application of norms that offer greater protection to the rights of the human person, whether in a legal, constitutional, or Human Rights norm, we believe it advises that a reform to the pension system should protect those who were in better conditions regarding contributions, time of service, and age, and with a sufficient technical basis that grants them these factors. A reform to the pension system -even applying the pro-fund principle- would be unreasonable if it did not take these factors into consideration. Ignoring specific contributions of a worker's premiums delivered to a specific pension and social security system, sustained over time, generally for a very long career of service, must be addressed by these actuarial studies. Only in cases of national economic collapse could serious measures be taken against these rights in the process of consolidation. Therefore, we believe that the actuarial study should not only reflect the economic condition of the fund, but must also have another aspect, which is the accommodation of workers who were in better conditions regarding contributions, time of service, and age, and with a sufficient technical basis that grants preeminence to the time of contribution, a factor that is intimately related to the economic part of the fund. We believe that this increases and maximizes the possibilities of recognizing benefit rights, even when they have not yet become acquired rights. Regarding the technical reasonableness of the norms approved by the legislator, this Chamber has indicated that: “As for the first, it must be noted that strictly speaking reasonableness is equivalent to justice, thus, for example, a law that establishes scientifically or technically nonsensical benefits would be a technically irrational or unreasonable law, and for that reason, it would also be legally unreasonable. In this sense, it should be noted that saying an act is reasonable is not the same as saying an act is not unreasonable, because reasonableness is a point within a range of possibilities or options, having an upper and a lower limit, outside of which the choice becomes unreasonable, due to excess or defect, respectively” (Judgment No. 1994-00486 at 4:03 p.m. on January 25, 1994). So, we do not deny that the legislator has broad powers and freedoms in the shaping of the law, so that the reasonableness of a norm would be within a point of greater or lesser intensity that would make a permissible or constitutionally reasonable regulatory range, and therefore it must also be concluded that what falls outside it is unconstitutional due to deficiency or excess of the standard. We maintain that Article 71.3 of Convention No. 102 of the I.L.O. provides normative coverage to legitimate expectations, unless one were facing an economic debacle, to deny benefits to those who would otherwise have them. We must remember that state decisions must respect social security rights, and makes the provision fall outside that permissible or reasonable regulatory range. Reducing what is established in the standard studied must be clearly justified, as these are Human Rights that would, in effect, be denied to those who were in better conditions to obtain a retirement or pension over time. C.- The problem of legitimate expectations without the adequate use of an actuarial study. 1.- More on the international obligation. In Judgment No. 2020-023789 at 7:00 p.m. on December 10, 2020, the Chamber established, regarding international obligations, that: “Now, in accordance with Article 1 of the Constitutional Jurisdiction Law, it is the responsibility of this Chamber to guarantee, in addition to the supremacy of Constitutional Law, also that of International Law. Thus, it is the responsibility of this Chamber not only to establish the supremacy of the law contained in the Law of the Constitution when treaties necessarily refer to human rights issues, but also of International Law, when by its interpretation and application its supremacy over laws must be declared, by virtue of Article 7 of the Political Constitution. (…) In this sense, since their ratification by our country, the international obligations it assumes should be producing lasting legal effects, which should be common practice in those Human Rights treaties that seek to elevate human dignity, and whose obligations consist of protecting, safeguarding, and ensuring respect for those rights. In other treaties as well, when they aim to legally regulate and eradicate other national practices that endanger those rights, especially if they are linked to life, human health, and the environment. These types of treaties also seek effet utile or what would be the same, to achieve lasting effects, legally speaking, as they are common efforts and international cooperation in a specific area, because they acquire special international interest. Therefore, it is logical to associate the binding commitments with control mechanisms for the agreed objectives, because they are not alien to them.” The binding legal force of international obligations in Costa Rica is pristinely revealed in Judgment No. 2016-006728 at 9:05 a.m. on May 18, 2016, which establishes that: “The way in which international law shapes the national legal system was decided by the constituent power when it established the normative hierarchy of the norms of international law. Although there may be different solutions to the way in which public international law relates to the national legal system, it is very revealing the form in which it is incorporated, even more so the place that the original and derivative constituent assigns to it in the normative hierarchy of the legal order, with the intention of assigning it a certain legal potency and resistance, emphasis added in some cases, for the coexistence of international law with the national norm, which would be: supralegal where the legal operator faces a norm with cascading force and potency that displaces the inferior norm; or of equal rank, where the judicial authority interprets international legislation with a force and potency equivalent to that of laws, applying the criteria of validity in time and space, and which, to avoid generating unnecessary conflicts between norms, must interpret international law with customary international law.

In these cases, the national norm is set aside or interpreted in accordance with the international obligation, except in those jurisdictions where the legislator assumes the preeminent role of expressly rendering it without effect, under risk of violating the international order. In our country, the design given to the constitutional provision was conceived to have very specific effects on the national legal system. In our case, of monist origin, international law is incorporated once the legislative procedures for the issuance of a law that receives it are fulfilled, with legislative approval, followed by sanction and publication, and finally the exchange of diplomatic notes or the deposit of instruments for the perfection of the international obligation - act of ratification. The manner in which national law is impacted would logically depend on the nature of the commitments or international obligations agreed upon between States or legal entities with the capacity to act at the international level. For example, the object of Human Rights Treaties is the human person, hence they are followed by their own mechanisms of interpretation such as the pro homine principle, which, insofar as it is combined with the principle of constitutional supremacy, integrates and surpasses the constitutional text insofar as it produces added protection or even protection omitted by the constitutional norm, but increasing its legitimacy, in human dignity (see judgment No. 1995-2313, among others)." Article 71.3 of Convention No. 102 of the International Labour Organization forms part of international labor law, and this must guide the resolution of this matter, since the international canon establishes a very specific standard, which must be observed, because the State: "shall guarantee, when appropriate, that the necessary actuarial studies and calculations relating to the balance are established periodically and, in any case, prior to any modification of the benefits" (underlining and highlighting not in the original). We consider it obvious that the change of benefits includes current and future ones. The legislator is able, through the freedom of configuration, to establish new terms supported by the aforementioned studies, but ensuring - except in moments of severe crisis and economic collapse - mechanisms that safeguard those persons in a greater position of expectation, those who would be in transition due to a matter of equity in interpretation, which must also be fair and balanced.

The positive international obligation accepted by the States imposes both the obligation to do certain things, as well as - not to do - against rights without a reasonable justification so as not to violate the norm. In the first of the scenarios, verifying the imbalance of pension funds as occurred with the Judicial Branch, where there is no doubt that the State requires the approval of adequate norms and policies to safeguard social benefits. But, in this aspect, we must be clear that when decisions are made that mark a turning point in a Social State of Law, there are always obligations to do as well as not to do regarding the rights that remain in a transition period. In such cases, it is valid to take age, contribution time, and service as a reference, always in order to maintain the balance of a fund, without failing to consider rights that could well have been protected because they were in transition. Thus, we insist that it is the State's responsibility to doubly ensure the protection of those who contribute for future benefits, and with greater intensity, to agree to the protection of the legitimate interests of those who are gradually approaching the fulfillment of the time and service requirements, and to an even greater degree, to those who would be in transition. The transitional norm must adapt these factors in order to protect these rights in consolidation.

We believe that Convention No. 102 of the International Labour Organization does not authorize decision-making devoid of technical reasonableness; on the contrary, it imposes upon the person responsible for the funds - the State - the principles of reasonableness and proportionality, foreseeing that any decision becomes more difficult to achieve without technical support, because this injures the substantive rights to a future and intergenerational benefit of those who have contributed more. The transitional norm must be appropriate to the rights of those who were in the fund, protecting a set of substantive rights for time of service, age, and contributions, all viewed together in a fair and equitable manner, with a legitimate interest that is undoubtedly of greater intensity.

The question that arises here is whether the legislator can sustain the reform, without any consideration of the consequences it may generate for all affected persons, by aggravating the substantive rights. We consider that the answer must be negative in light of the international obligation.

In the legislative file (folio 4164), Deputy Natalia Díaz Quintana stated that:

"Another important topic in this text that we are ruling on today, which I believe is also part of the transcendental reforms thereof, has to do with the transitional provision; a transitional provision that was handled responsibly in the committee; a transitional provision that even allows the servicial (sic) servers, and I read them verbatim, it is the sixth transitional provision, that comply with the ….

The Attorney General's Office had even told us that this transitional provision was not necessary, that even the norm or the law could take effect immediately for its application; however, also due to failures (sic) of the Constitutional Chamber regarding the IVM regime, where eighteen months of transition are established, we took this consideration to establish it and then grant the right to those who are within eighteen months of pensions to avail themselves of the current regulations and not the law we are approving, to also respect these benefits.

Let us remember that pensions are not acquired rights, but rather an expectation of right, so for that reason the transitional provision could be eliminated; however, we left it in the bill to open that eighteen-month window for those who wish to retire or are about to retire in these eighteen months and therefore can avail themselves of the current regulations." At this point, it must be established that the international obligation of Article 71.3 of Convention No. 102 of the International Labour Organization has a legal character, being an instrument that brings consequences due to its normative hierarchy in the national order - including the legislator and judge - to the extent that it obliges the adjustment of the will granted between subjects of international law, and as such, it must be applied in accordance with the principle of pacta sunt servanda and good faith. With this legal content, consequently, it is binding for the Costa Rican State, acquiring the character of a basic floor of the international obligation, which would give legitimacy by being based on technically balanced actions, ordered by norms of higher rank and hierarchy, which obliges, in the first order, that the adjustments do not negatively affect pension funds, and that rights are not abused in the name of the fund's balance, without a reasonable justification in economic difficulties that can be corrected in the future. In this sense, we consider it is clear that any improvement is preferred. The legitimacy that the international instrument provides is not only for the issue of resources, but rather, it must be extended to the granting and respect of rights in transition. It would make no sense for the action to be based solely on mathematical considerations without considering Economic, Social, and Cultural Rights.

By Judgment No. 2018-000230 of 10:40 a.m. on January 10, 2018, the Chamber established that:

"… the legislator has discretion, within the framework of its right to free configuration, to establish the requirements of the activity, in order to protect people's health, without having to justify each decision by means of a technical study, except when there is an express norm in this regard (for example, in environmental matters) or when the subject matter requires it." In this sense, the final actuarial studies sought a twenty-four-month transitional period for the consolidation of rights in transition. Thus, we consider it is obliged to conclude that the actuarial technical criteria are the objective instrument to sustain pension fund reforms, which must justify the modifications and limitations to benefits. Also, the transitional treatment after the entry into force of the reform. But, a modification that makes a transitional norm more restrictive must be based on a duly verified need.

The majority of the Chamber refers to the final considerations of the actuarial study called "Product 6 Final Report: 'Compilation and Final Report: Conclusions and Recommendations' (Final Version)," the actuarial team discusses some relevant points from the reports, and includes the following assertions from the prospective actuarial calculations at one hundred years carried out on the Judicial Branch Retirement and Pension Fund:

"b. Regarding the 'transitional provision' that would allow persons who would retire within a period of two years and the possibility of extending that transitional provision for persons who would retire within a period of five years.

An increase in the 'transitional provision' postpones the adjustments and therefore negatively affects the Fund's income. To properly assess the effect of an increase in this transitional provision, it would be necessary to perform a complete actuarial analysis.

On the other hand, a decision in this direction may induce administrators and political agents to take steps to include successively more numerous groups, so that in the end a 'transitional provision' of two years would end up being transformed into a transitional provision of five, six, or even more years.

Finally, the extension of the transitional provision postpones part of the adjustments, so profitability and solvency analysis of the Fund may generate the impression that the adjustments that were made had no effect" (page 73 of the report).

It is important to mention that of the last Normative Frameworks analyzed, IICE3 and IICE4, they were considered solvent in the tests performed on them; that is, in the "base or intermediate" and "optimistic" scenarios. Furthermore, they also refer to Product 5, that "they resulted solvent both if the additional income from abandoned processes is included and if it is excluded. These proposed new Normative Frameworks are self-sufficient and their operation does not require imposing burdens on the State or on Costa Ricans." All of the foregoing allows us to conclude that it is clear that within the actuarial solvency that was presented to the Legislative Assembly, the transitional regulations for two years (twenty-four months) were already "budgeted" or "contained." The legislation must maintain the adjustments and the adaptation of the modifications to the individual circumstances of the persons, from newly admitted workers, who start until they reach the period of membership and which transforms from a general interest to a concrete legitimate expectation based on age, contribution time, and service of the workers, as long as they belong to the regime. Pension regimes are of long duration, and during that period of membership, that interest will increase further, to that of a legitimate expectation that leads to the declaration of the right.

Not all reforms that safeguard the balance of pension funds are equal. We consider that the safeguarding of public resources in pensions directly charged to the national budget cannot behave in the same way as with those with funds contributed by workers' contributions in pension regimes that receive employer and State contributions, and which, it is worth saying, arise from the international obligations acquired with the International Labour Organization. However, in both, there must be the mandatory contribution of the worker, the employer, and mainly the State, whose participation is part of the need for it to make its contributions in the name of the national community, as it did in the case of pensions directly charged to the national budget and its five-year transitional period.

The Social Protection Floors Recommendation, 2012 (No. 202), which gathers what is related to the principles concerning social security, maintains a close relationship with Convention No. 102. In it, it defines social protection floors as the "nationally defined sets of basic social security guarantees" (point I.2), but also in I.3, it gathers the principles on adequacy and predictability of benefits (c); respect for the rights and dignity of people covered by social security guarantees (f); sound, responsible, and transparent financial management and administration (j); financial, fiscal, and economic sustainability, taking due account of social justice and equity (k). In addition to other stated principles, it is clear that there must always be a rational balance regarding short and long-term costs and benefits. To achieve this, we consider that actuarial studies are needed to guarantee that the required reforms and adjustments are necessary, justified, and respond to technical criteria. Hence, we believe that transparency, consultation, and social dialogue are important in any case, but more so when it concerns regimes administered directly or indirectly by the State, insofar as employers' and workers' organizations are involved. In this sense, the General Survey concerning the social security instruments of the International Labour Organization, cited earlier, mentions that it should be expected that the trust placed in actuarial studies must be broad and disseminated, especially among decision-makers, so that "…it will be easier for governments to obtain the support of the social partners and achieve a consensus on the changes to be made, if such changes are based on objective recommendations formulated by an independent actuary" (the highlighting is added).

There is also no doubt that the recognition of rights in the process of constitution and transition should be closely linked to the aforementioned, based on social justice and equity, due to the non-economic social cost it entails, and because it is already recognized by the technical studies of the fund of interest, whose studies are established by the international legal system itself.

2.- Transition rights in the national and international corpus iuris.

From this point, it is necessary for us to examine the existence of legal institutions developed by the jurisprudence of the courts of justice in our country, including the Constitutional Chamber itself, which respond to the rationalization of the application of legal changes, based on considerations of equity and justice, especially when it has unjust and arbitrary effects on persons.

The doctrine of legitimate expectations (doctrina de la confianza legítima), the estoppel, and the doctrine of one's own acts of the Public Administration, all respond to the protection and construction of law as a true bulwark against injustice and arbitrariness, and the courts become a backbone of justice in society.

When reforms are produced, there must be a minimum standard that guarantees an environment of predictability which is nothing more than also a consequence of the democratic principle that obliges rational decision-making, in addition to the publicity of valid public acts, and their effectiveness. From publicity derives the obligation of individuals to adjust to the norms and provisions issued by public authorities, for having fulfilled the formal and material requirements that allow them to be considered valid, the courts admitting - also - those that are apparently valid, and effective when they receive their publicity in an official manner.

At the level of the European Union, the principle of legitimate expectations is derived from the general principle of legal certainty (all derived from the principle of legality). It is the recognition that this legal institution comes from national laws. It is understood as the obligation of the authorities to be not only constrained by what the law expressly provides, but also by their promises and by the high expectations it creates. In this sense, there is legitimate expectation when actions are taken with a component of good faith, because people's legitimate expectations must be protected, since they act on the basis of the texts of the laws, and they must not see their legitimate expectations created based on them frustrated.

For example, it was recognized that the community measures that incentivized stopping the production of dairy products, and whose producers voluntarily submitted to that postponement in Europe, could expect that once the period was over, they would cease to have effect and they could return to exercising the economic activity they suspended. In Judgment of the Court of Justice of the European Union of April 28, 1988, Mulder v. Minister van Landbouw en Visserij, it established that:

"26 Contrary to the Commission's assertions, such a total and permanent exclusion, as long as the regulations on the supplementary levy remain in application, which has the effect of preventing the affected producers from resuming the marketing of milk at the end of the five-year period, was not foreseeable for those producers at the time they assumed, temporarily, the commitment not to supply milk. Indeed, neither the provisions nor the recitals of Regulation No. 1078/77 indicate that the non-marketing commitment entered into under this Regulation could imply, upon its expiry, the impossibility of resuming the activity in question. Such an effect therefore violates the legitimate expectation that the producers could have had in the limited nature of the effects of the system to which they submitted.

27 It follows that the regulations on the supplementary levy on milk were enacted in violation of the principle of legitimate expectations. Given that these regulations must be declared invalid for this reason, there is no need to examine the other grounds raised in the course of the proceedings against their validity." For its part, that praetorian character that has spread in many countries also has, from the point of view of national jurisprudence, application in the Constitutional Chamber. It has established, in Judgment No. 2016-008000 of 11:52 a.m. on June 10, 2016, that doctrine of legitimate expectations. The decision indicates that:

"Now, we are before a principle of jurisprudential origin evidently linked to matters of equity, which is why its application must be analyzed on a case-by-case basis. Let us remember that it has been conceived as a reaction of the judge to safeguard the trust of the Administered, when the Administration surprises him with an unexpected change in its conduct. As resolved by the Supreme Court of Spain (Chamber 3) in judgment of May 17, 2013: "In short, as noted by the CJEC judgment of 12-5-1998, to annul an irregular act issued within the national law of a State, the Judge must weigh the conflicting interests in each case, and resolve by giving primacy, either to the principle of legality, revoking the act, which the general interest demands, or by protecting legitimate expectations, in defense of the individual interest." Regarding the scope of the principle, the Supreme Court of Spain, in its rulings of February 21, 2006 (RC 5959/2001) and December 15, 2007 (RC 1830/2005), has concluded that "the potential of the principle invoked may entail the annulment of an act or norm and, at least, obliges one to respond, within the community framework of the alteration (without prior knowledge, without sufficient transitional measures so that the subjects can accommodate their conduct and proportionate to the public interest at stake, and without the due corrective or compensatory measures) of the usual and stable circumstances, that generate founded hopes of maintenance." In those same judgments, regarding the limits to the principle, it has pointed out that:

"However, the principle of legitimate expectations does not guarantee the perpetuation of the existing situation; which can be modified within the framework of the appreciation power of the institutions and public powers to impose new regulations assessing the needs of the general interest." On the other hand, in the STS of 1-2-99 Az 1633, it is recalled that "this principle cannot be invoked to create, maintain, or extend, in the field of public law, situations contrary to the legal system, or when the preceding act results in a contradiction with the purpose or interest protected by a legal norm that, by its nature, is not susceptible to supporting discretionary conduct by the Administration that implies the recognition of rights and/or obligations emanating from its own acts. Or, stated in other terms, the invoked doctrine of 'one's own acts' without the limitation just set out could introduce into the sphere of public law relations the principle of autonomy of will as a method of ordering matters regulated by norms of an imperative nature, in which the public interest safeguarded by the principle of legality prevails; a principle that would be violated if validity were given to an action by the Administration contrary to the legal system simply because it was decided by the Administration or because it responds to a precedent thereof. One thing is the irrevocability of one's own acts declaratory of rights outside the review channels established in the Law (arts. 109 and 110 of the Administrative Procedure Law of 1958, 102 and 103 of the Law on the Legal Regime of Public Administrations and Common Administrative Procedure, Law 30/1992 [RCL 1992 \2512, 2775 and RCL 1993\246], modified by Law 4/1999 [RCL 1999\114]), and another is the respect for the legitimate trust generated by one's own actions that necessarily have to be projected in the sphere of discretion or autonomy, not in that of the regulated aspects or normative requirements against which, in Administrative Law, what is resolved in an act or precedent that was contrary to those cannot prevail." In summary, the principle of legitimate expectations rests on the basis that the citizen adopts a behavior trusting that he/she is acting correctly, since the constant, stable, and long-term conduct of the Administration reasonably generates such an expectation; in other words, the Administration has issued external signs that have come to guide the citizen towards a certain conduct and have made him/her rely in good faith that such a situation will persist. As noted by Meza Valencia (2013), "the individual's trust arises from the birth in the legal world of a given word or promise from the administration, but it is strengthened and rooted with the chain of subsequent behaviors assumed by the administration, provided that these are oriented toward strengthening and developing the previously issued word. Without the existence of such subsequent, harmonious, and coherent acts, the previously given promise loses its vocation to consolidate legitimate expectations." The foregoing does not imply that the Administration is compelled to keep irreversible an act contrary to current regulations. On the contrary, in the exercise of its public powers, the Administration may well remedy the misapplication of the regulations or impose new regulations by assessing the needs of the general interest. However, to do so, the State must respect the doctrine of one's own acts, or else -especially when dealing with new measures or an unexpected decision- proceed in a reasonable manner, that is, communicate its new action with due anticipation, with sufficient transitional measures so that the subjects can accommodate their conduct and proportionate to the public interest at stake, without excluding other types of corrective or compensatory provisions for the usual and stable circumstances, which forge for the citizen founded hopes of the maintenance of a certain situation.

Costa Rican constitutional jurisprudence has already recognized this principle, as seen in the following precedents:

"(...) On the development of this principle and its deep constitutional roots, national doctrine has stated the following: 'This principle arises in the Federal Republic of Germany and, later, is taken up by the jurisprudence of the Court of Justice of the European Community, to define a situation worthy of being protected after the trust placed in the action of the Public Administration was violated. The Spanish Supreme Court, in its judgment of February 1, 1990, considered that this principle must be applied, not only when any type of psychological conviction arises in the benefited individual, but rather when it is based on external signs produced by the Administration sufficiently conclusive to reasonably induce him/her to trust in the legality of the administrative action, coupled with the fact that, given the weighing of interests at stake - individual interest and general interest - the revocation or annulment of the act increases in the assets of the beneficiary who reasonably trusted in said administrative situation, some damages that he/she does not have to bear, derived from expenses or investments that can only be restored with serious damage to his/her assets. Regarding the requirements of the principle of legitimate expectations, Spanish doctrine, following the jurisprudence of the Spanish Supreme Court, has established the following: There must be an act 1) of the administration sufficiently conclusive to provoke in the affected person one of the three following types of trust: a) trust of the affected person that the Public Administration acts correctly; b) trust of the affected person that the conduct he/she maintains in his/her relationship with the Public Administration is lawful, there being an eventual error of prohibition; c) trust of the affected person that his/her expectations as an interested party are reasonable. 2) The Public Administration must provoke external signs (acts or facts) that, even without needing to be legally binding, guide the administered person towards a certain conduct that, were it not for the appearance of legality created, he/she would not have performed. 3) An act of the Public Administration (v. gr. a regulation that recognizes or constitutes an individualized legal situation in whose stability the administered person trusts. 4) The suitable cause to provoke the legitimate expectations of the affected person cannot be caused by mere negligence, tolerance, ignorance of the Public Administration, or the irrationality of what is sought by the administered person. 5) The administered person must fulfill the duties and obligations incumbent upon him/her. The breach of the principle of legitimate expectations undoubtedly provokes several important legal effects, let us see: 1) It acts as a limit on the exercise of discretionary powers. 2) It operates as a guarantee of the principle of equality. 3) It provokes the duty of the Public Administration to compensate for the frustration of legitimate expectations and injured subjective rights. The principle of legitimate expectations, together with that of good faith in legal-administrative relations, emanates from the principle of legal equality, that is, the certainty of relations with public powers, knowing, the administered person, what to expect from them, who must avoid objectively confusing situations and maintain legal situations even if they are not absolutely in conformity with the legal system. This principle is materialized, among other scenarios, with the theory of the intangibility of one's own acts declaratory of rights for the administered person, the limitation of acts of encumbrance, and non-retroactivity. It also finds application when a public administration issues and carries out a series of acts and actions that, although legally incorrect, generate a series of expectations in the administered person believing that he/she holds a legal situation in accordance with the legal system (...)' (see judgment No. 2010-010171 of 9:58 a.m. on June 11, 2010)" (the highlighting is from the original).

In another judgment, the Chamber resolves an amparo action from a sixty-one-year-old person who had begun, many years before, working at the Ministry of Finance, who, due to modifications and new requirements for the cleaning service - through outsourcing - was excluded from continuing his work at the Ministry of Finance, harming his individual and concrete situation, and his opportunity to acquire a pension.

Furthermore, consideration is given to the fact that he is a person who forms part of the disabled population, and that, in his last employment contract, he was excluded due to the introduction of the academic requirement of having completed primary school. This Chamber resolved the case as follows:

“In light of the foregoing panorama, it can be observed how the Public Administration generated a trust in the affected party that it was acting correctly during all that time worked, creating expectations for the amparo petitioner (amparado) that are considered reasonable, since from 1996 to 2017 the ward (tutelado) worked for all the cleaning service companies that were awarded contracts by the Ministry of Finance, this becoming a common practice, where all the awarded companies hired him to keep him performing that cleaning work, with the same requirements for 30 years as indicated. Even though the change in the tender specifications (cartel) requirements is based on the minimum requirements for the use of products and activities inherent to the work, the amparo petitioner has demonstrated over nearly thirty years that he is a suitable person and can handle the job duties well. Regarding the administration's conduct, it can be shown that it has been representing stability and continuity in his employment relationship to the amparo petitioner, as no situation of rejection or complaint before the awarded companies is accredited. Considering that the petitioner is a person with special capacities and nearing his older adulthood, it can be affirmed that the change in the requirement for the position would cause an aggravation to his condition, due to the mentioned difficulty in finding employment because of his disability and age, and also now when he is short a few contributions to be able to retire. By virtue of the foregoing, this Chamber considers that, in the particular case of the amparo petitioner, the administration contributed to constituting a situation of trust and support, through the requirements demanded of the contracted companies to perform their functions, in whose stability the ward trusted; therefore, it is appropriate to grant this remedy (recurso) in the terms set forth in the therefore (por tanto) of this judgment” (2018-02910 at 9:15 a.m. on February 23, 2018).

In another Judgment, No. 2023-014857 at 1:11 p.m. on June 21, 2023, this Chamber agreed that it was necessary to sustain over time certain economic advantages obtained in a Collective Bargaining Agreement, given the omissive behavior of a public institution, and that it was not until the end of a labor process that an attempt was made to correct the economic situation, despite the existence of res judicata (cosa juzgada). In the resolution, it was stated that:

“It must be reiterated that, in Judgment No. 2021-001157 at 12:42 p.m. on January 20, 2021, another similar matter was heard that addressed the reasonableness of a conventional norm, but as previously indicated, it was denounced in a timely manner. Now, in this case before us, the omissive conduct consolidated a situation that it would now be improper for this Chamber to rule on, based on the doctrine of ‘estoppel’ (estoppel). By Judgment No. 1992-00746 at 11:20 a.m. on March thirteenth, 1992, this Chamber defines it as follows: ‘This position is known in the doctrine as administrative estoppel (estoppel administrativo), which prevents the interested party from benefiting from their own fraud or errors or from those of the administration and then invoking the nullity of the acts from which they benefited.’ In this sense, according to the foregoing, protection is owed to the party who benefited in procedural good faith and in safeguarding the values of the reliability of legal transactions, which in this case would be legal certainty (seguridad jurídica) and res judicata.” As is clear from all the above, the Chamber, in effect, has observed, through different legal institutions, the principle of legal certainty, especially its derivation, the principle of legitimate expectations (principio de la confianza legítima), as a mechanism for conserving the continued effects of rules and administrative acts as an extension of subjective rights that should have been protected, despite normative repeal when the individual has placed their trust in public actions. We consider that the individual behavior of the Judicial Branch workers has adjusted to the norms that raised their legitimate expectations, which have been generated with a degree of reliability and good faith, in their pension regime, contributing and working loyally in the Judicial Branch. It is recognized, then, that when there are normative changes, “the State must respect the doctrine of one's own acts, or - especially when dealing with new measures or an impromptu decision - proceed in a reasonable manner, that is, with due anticipation, communicate its new action, with sufficient transitional measures so that subjects can adjust their conduct and proportionate to the public interest at stake, without excluding other types of corrective or compensatory provisions for the habitual and stable circumstances that forge in the citizen founded hopes for the maintenance of a determined situation.” Therefore, we believe it is evident that options must be preferred that are consistent with the protective principles of the human person in the field of human rights, due to the intrinsic need and respect for the dignity of persons, especially those who have been subject to a specific legal regime for the longest time, which had not varied for more than twenty or thirty years, and where, in that field, for reasons of equity, justice, and legal certainty, appropriate corrective or compensatory transitional provisions must have been considered for their specific situations, and in accordance with the intensity of the legitimate expectations they held.

D.- Conclusion.

As a corollary of all the foregoing, we consider that the State, in the exercise and balancing of its decision-making regarding retirement funds, must be doubly careful to safeguard: a) the economic balance of the fund, based on demographic aspects, population mortality, and the country's economic situation, among other objective elements; and also, b) the legitimate rights and interests of its beneficiaries. It is clear that pension regimes must be periodically subjected to the respective actuarial studies, and except for devastating economic collapses in an economy, measures that severely affect all persons who have not formally attained that right could be taken. But when this is not the situation, the State and the funds that administer the pension regimes must seek solutions that do not anathematize workers at the gates of the declaration of the right. We consider that in this matter, there are no mere expectations of right, in consideration of a long-duration relationship (often of an entire lifetime) that includes the time served and the contribution, but under the protection of the securities and guarantees of a public employment regime, which in this case corresponds to a Branch of the Republic; consequently, a means should be defined for workers that grades the rights of those who have legitimate expectations due to the years of service rendered and the contributions made to the corresponding pension and retirement fund.

The actuarial studies conducted by the IICE had contemplated a transitional period of two years (twenty-four months) as part of the analysis of the corrective measures for the pension fund. However, it is clear that said information had no consequence on the Transitional Provision VI finally approved of eighteen months, by not considering the entirety of the economic information and the rights in favor of those serving persons who would be left uncovered, and to whom, consequently, no protection was granted despite being quantified and having rights in the process of consolidation. Although it could be argued against our conclusion that there will always be persons excluded by any temporal setting made by a transitional provision in this matter, it is clear to bring forth the majority criterion in Judgment No. 2021-11957 (previously cited), in which it stated that: “… the constitutional conformity of measures that cut or modify conditions regarding pensions requires that prior to the determination and as an unavoidable part of its reasoning, there must be technical support on the effects of the measures,” an interpretation that is correct and is an obligation that would be the responsibility of the Legislative Assembly. The recognition of the analyzed benefit rights, for those who did not yet have consolidated rights in the actuarial studies, which it is worth noting are calculated over one hundred years, could have merely constituted a factor of actuarial distortion between the time the studies were finalized and the approval of the reform, but it would not have derailed the solvency or insolvency calculations made, added to the other measures introduced, and could have been corrected administratively over such a long term.

Hence, we consider that the setting of an eighteen-month period is unconstitutional by omission, because that state measure was more restrictive and out of phase with the actuarial study, which had weighed a twenty-four-month period, with which the degree and adequacy of its economic impact on the future granted benefits had been measured, against the impact on rights in transition.

We consider that the two-year transitional provision that had been established was the means of establishing protection for benefit rights in the process of consolidation, which was varied by the legislator (as illustrated by the intervention of Deputy Díaz Quintana). The President of the Legislative Assembly is emphatic in pointing out that the legislator's discretionary criterion was used. In this sense, it invokes a prerogative that would imply a simple adaptation of parliamentary acts to the freedom of configuration (libertad de configuración). Therefore, if only this prerogative was used, and there was no other substantive criterion, contrasted with Article 71.3 of Convention No. 102 of the International Labour Organization, it is clear that the product is illegitimate for falling short of the technical standard previously established, and given that the Chamber has held that the legislator's freedom of configuration is limited to compliance with the technical studies required by a specific provision, whether in environmental matters, or according to the matter at hand, as is the international obligation before us.

Substantive law, in addition to requiring reasonable support, must be safeguarded with technical studies that must ensure financial equilibrium; also, in doing so, it must protect, to the extent possible, benefits in transition. Furthermore, it must be recognized that there is a special relationship of subjection and a true long-duration legal relationship with a basic pension plan for judicial officials, with economic implications such as those of workers who could be in protectable situations, who remained in their positions visualizing life plans and projects, with certain health conditions, and it is logical to think that the best social security conditions and the right to retirement would be within their considerations, all in a context from day one when work with the Judicial Branch begins.

For all these reasons, an irregular action claimed by the plaintiffs can be observed, which means that the means used and the ends were not well crystallized, especially in the case of the worsening of rights.

The minority position should not remain at this point as an abstract decision, since evidently, it would be recognizing that there is indeed an impact on an international obligation contained in Article 71.3 of Convention No. 102 of the International Labour Organization, as well as the economic, social, and cultural rights of workers. Therefore, we conclude with an estimatory judgment due to the unconstitutional and un-conventional omission of the norm, for the partial insufficiency in the coverage of the provision approved by the Legislative Assembly, in that it set eighteen months as a transitional period; and, for the insufficient coverage despite the actuarial study that allowed clearly establishing a longer period that could be technically supported, reflecting the needs of a reasonable financial equilibrium of the fund, with that of granting the fundamental rights of expectant workers, respecting the legitimate expectations of judicial servants. In conclusion, the transitional norm is omissive -unconstitutionally- by having departed from the actuarial background that established twenty-four months of transitional period, whose actuarial support was duly established.

As a consequence of all the foregoing, in accordance with articles 89 and 91 of the Constitutional Jurisdiction Law, we dimension this declaration to grade and dimension the retroactive effects of this declaration, to establish that judicial officials retain their rights to retirement and/or pension in accordance with the text prior to the reform operated by Law No. 9544 of April 24, 2018, within the twenty-four months following its promulgation. - Luis Fdo. Salazar Alvarado Ana María Picado Brenes [[]1] IACHR. Report No. 38/09, Case No. 12.670. Admissibility and Merits National Association of Former Employees of the Peruvian Social Security Institute and Others v. Peru, dated March 27, 2009.

[1] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-743320 [2] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1033446 [3] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1100699 [[][1] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-83512 [[][2] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-855812 [[][3] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1070372 [[][4] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-146437 [[][5] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-551124 [[][6] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-743319 [[][7] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1170949 [[][8] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1116679 [[][9] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-469338 [[][10] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-551124 [[][11] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-577456 [[][12] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-750387 [[][13] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-858306 [[][14] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81978 [[][15] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-743320 [[][16] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1070372 [[][17] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1100699 [[][18] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1100702 [[][19] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-994090 [[]20] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-80098 https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-121546 [4] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-141162 [[]22]Acción de inconstitucionalidad against Law establishing a special contribution from pension regimes. https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1027847 [[][23] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-80098 [[][24] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-82623 [[][25] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-193759 [[][26] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81978 [[][27] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-994090 [[][28] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-256862.

[[][29] Resolution No. 2010-10171. https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-481193 [[][30] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-184045 [[][31] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-133687 [[][32] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-138896 Observations by SALA CONSTITUCIONAL voted by ballot Classification prepared by SALA CONSTITUCIONAL of the Judicial Branch. Its reproduction and/or distribution for profit is prohibited.

It is a faithful copy of the original - Taken from Nexus.PJ on: 08-05-2026 13:13:25.

Sala Constitucional Clase de asunto: Acción de inconstitucionalidad Control constitucional: Sentencia desestimatoria Analizado por: SALA CONSTITUCIONAL Sentencia con Voto Salvado Sentencias del mismo expediente Contenido de Interés:

Temas Estrategicos: Constitución Política Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: PENSIÓN Subtemas:

NO APLICA.

PENSIÓN. REFORMA AL RÉGIMEN DE PENSIONES DEL PODER JUDICIAL Sentencia: 32259-23 del 13 de diciembre de 2023 Tipo de asunto: Acción de inconstitucionalidad Norma impugnada: Transitorio VI de la Ley de Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial. No. 9544 Parte dispositiva: Por mayoría se declaran SIN lugar las acciones acumuladas. El magistrado Cruz Castro salva el voto, declara con lugar la acción y considera que para ser conforme al Derecho de la Constitución el régimen transitorio debió haber cubierto a los servidores judiciales que contaran con veinte años o más de servicio en el Poder Judicial. Los magistrados Salazar Alvarado y Picado Brenes salvan el voto y declaran parcialmente con lugar la acción, al estimar que existe una omisión inconstitucional de no atender un transitorio de veinticuatro meses conforme a los antecedentes actuariales.

TEMAS ANALIZADOS Violación al art.167 Constitucional y al artículo 208 bis de la Asamblea Legislativa, por falta de consulta del texto modificado al Poder Judicial y por falta de publicación Violación al artículo 167 Constitucional y al artículo 208 bis de la Asamblea Legislativa, por aprobarse sin mayoría calificada.

Sobre el alegato de violación a la independencia judicial por la creación de la Junta de Jubilaciones y Pensiones del Poder Judicial Sobre el alegato de violación al artículo 26 de la Convención Americana de Derechos Humanos y el principio de progresividad.

Sobre los alegatos de violación al derecho a una pensión digna, proporcional y razonable Sobre los alegatos de violación al principio de igualdad Sobre el origen de la reforma al régimen de pensiones del Poder Judicial, realizado mediante ley n°9544.

Sobre el derecho de pensión y la jubilación como derechos fundamentales, y las posibles limitaciones.

DE LA CONSTITUCIONALIDAD DEL TRANSITORIO VI DE LA LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, LEY N.° 9544.

SOBRE EL PLAZO DE 18 MESES PREVISTO EN EL TRANSITORIO VI DE LA LEY N.°9544.

CUÁL ES LA SITUACIÓN ACTUAL DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL.

CUÁLES SON LAS CONSECUENCIAS DE DECLARAR CON LUGAR LA PRESENTE ACCIÓN DE INCONSTITUCIONALIDAD.

SOBRE LAS SITUACIONES JURÍDICAS CONSOLIDADAS Y LOS DERECHOS ADQUIRIDOS.

PRINCIPIO DE CONFIANZA LEGÍTIMA.

VIOLACIÓN A LOS PRINCIPIOS DE RAZONABILIDAD Y PROPORCIONALIDAD DERECHOS EN VÍAS DE ADQUISICIÓN LA SUPUESTA VIOLACIÓN DE LOS TRATADOS INTERNACIONALES Y LOS CONVENIOS DE LA O.I.T.

LA VIOLACIÓN DEL PRINCIPIO DE IGUALDAD.

VIOLACIÓN DE LOS PRINCIPIOS DEMOCRÁTICO, SOLIDARIDAD, SEGURIDAD JURÍDICA, BUENA FE, EQUIDAD, TRANSPARENCIA, INTANGIBILIDAD RELATIVA DEL PATRIMONIO, NO CONFISCATORIEDAD E IGUALDAD ANTE LA CARGAS PUBLICAS.

“…En definitiva, debe reiterarse que la mayoría de este Tribunal, en la supra citada sentencia nro.2021-11957, ya resolvió que la reforma al régimen jubilatorio del Poder Judicial –realizado mediante Ley nro. 9544 del 24 de abril de 2018– y, en general, la modificación a los requisitos y condiciones impuestas a los servidores judiciales para acogerse a la jubilación ordinaria y anticipada, lejos de resultar arbitraria, caprichosa, infundada o discriminatoria, obedeció a la necesidad real de garantizar la solvencia del Fondo de Jubilaciones y Pensiones del Poder Judicial, así como que tales cambios fueron realizados dentro “dentro del marco constitucional legítimo de acción del legislador en materia jubilatoria”, con fundamento en un “adecuado sustento técnico”. Concluyó, la mayoría de este Tribunal, que tales modificaciones en los requisitos y parámetros para el otorgamiento de las jubilaciones -tanto ordinarias como anticipadas- de los servidores judiciales eran constitucionalmente válidas, como medidas razonables y proporcionadas para garantizar la solvencia, estabilidad y permanencia del fondo, en atención a los criterios técnicos aportados al respectivo expediente legislativo. Indicó, en síntesis:

“(...) los cambios operados resultaban necesarios justamente para lograr el sostenimiento del régimen de jubilaciones y pensiones especial para los servidores judiciales y cuya debacle realmente hubiera significado una seria amenaza a la estabilidad económica de los administradores de justicia. Igual de importante para desechar el reclamo resulta ser el hecho de que las modificaciones legislativamente establecidas no resultan de arbitrios infundados de los legisladores, sino que fueron tomadas con fundamento en criterios técnicos, con amplia participación de las personas interesadas y no fueron ni intempestivos caprichosos y se basan en criterios técnicos. En ese aspecto, la Sala considera que el nuevo régimen previsional, en cuanto primer pilar del más amplio entramado de seguridad social que cubre a los administradores de justicia de forma similar a los demás trabajadores, les asegura un espacio de seguridad económica.”

En plena consonancia con lo anterior, debe insistirse -una vez más- que el plazo de 18 meses previsto en el transitorio impugnado, no solo se fundamenta -de forma razonable- en la amplia jurisprudencia de este Tribunal sobre este tema, sino que también en los criterios técnicos incorporados al expediente legislativo y, en definitiva, resulta coherente o congruente con el fin último de la reforma, de garantizar la solidez financiera del régimen y el derecho a la jubilación de los servidores judiciales…” Telf5585 ... Ver más Citas de Legislación y Doctrina Sentencias Relacionadas Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 050- Ambiente Subtemas:

NO APLICA.

Tema: 056- Trabajo Subtemas:

NO APLICA.

Tema: 074- Irrenunciabilidad de los derechos sociales Subtemas:

NO APLICA.

ARTÍCULOS 50, 56 Y 74 DE LA CONSTITUCIÓN POLÍTICA. “…Los artículos 50, 56 y 74 de la Constitución Política configuran el modelo de Estado social y democrático de Derecho. Como parte de este mismo modelo el principio de solidaridad social actúa como un eje orientador de política interna del Estado, porque el Estado Social de Derecho “entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables”. En forma consecuente y con sustento en el Estado Social de Derecho, nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de los trabajadores, como es el caso del derecho de jubilación…” CO08/24 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 073- Seguridad social. Caja Costarricense de Seguro Social Subtemas:

NO APLICA.

ARTÍCULO 73 DE LA CONSTITUCIÓN POLÍTICA. “…El modelo de Estado Social de Derecho y el concepto de seguridad social que adopta nuestra Constitución Política, incluye el derecho en favor de las personas trabajadoras de obtener una jubilación luego del cumplimiento de determinadas condiciones normativamente establecidas. Es ésta una de las formas de expresión del derecho fundamental a la seguridad social recogido en nuestra normativa constitucional, al que se suman el seguro de salud, los distintos tipos de jubilaciones contributivas, así como las no contributivas, entre otros.

-La jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo determinado, y cuyo fin es garantizar una vida digna para la persona, luego de que finalice su etapa como trabajador.

-El derecho a la pensión debe ser catalogado como un derecho fundamental, así la Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución…” CO08/24 DERECHO A LA JUBILACIÓN. “…el derecho a la pensión no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no impidan su ejercicio (o afecten su contenido esencial). El derecho de jubilación, como cualquier otro derecho está sujeto a condiciones y limitaciones pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten además razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin. Esto no es otra cosa que expresión de un conocido principio del Derecho de los Derechos Humanos, que puede denominarse de proporcionalidad y que se recoge en general como condición sine qua non de las limitaciones y restricciones a tales derechos autorizados excepcionalmente por los propios textos que los consagran (ver resoluciones n°2018-19030, n°2379-96, n°1147-90).

-El derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación. Claro está, tales limitaciones deben ser establecidas mediante una ley formal, deben ser razonables y no pueden impedir su ejercicio (o afecten su contenido esencial)…” CO08/24 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Confianza legitima Subtemas:

NO APLICA.

PRINCIPIO DE CONFIANZA LEGÍTIMA. “…la confianza legítima es un concepto acuñado en el Derecho Alemán (Vertrauensschutz), donde tiene rango constitucional, derivado del principio de seguridad jurídica y en otros ordenamientos jurídicos también del principio de buena fe. Este principio es de vieja data. En efecto, ya el Tribunal de Justicia de la Comunidad Europea (TJCE), pese a que no estaba recogido en los Tratados Constitutivos, lo reconoció en 1973 en materia de función pública (As. 81/1972 del 5 de junio). Para su correcta interpretación y aplicación, según la doctrina, se exigen ciertos requisitos: 1) que haya una acción de las autoridades comunitarias que justifique las legítimas expectativas de los afectados (y, en este sentido, es posible tanto una medida legal como ilegal que confiera beneficios, prácticas administrativas, promesas realizadas, información errónea suministrada, cambios normativos sorpresivos, etc.), 2) las expectativas de la persona que tienen una base subjetiva deben, en su caso, ser reconocidas y consideradas por un observador externo y ser capaces, de esa forma, de adquirir una base y dimensión objetiva de tal forma que se conviertan en lo que el Tribunal denomina “esperanzas fundadas” no contrarias al Derecho Comunitario; y 3) es preciso que en la valoración de los intereses de la persona afectada en contraposición con el interés público en presencia, este último no sea preponderante…” CO08/24 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 014- Sometimiento de la Sala Subtemas:

NO APLICA.

ARTÍCULO 14 DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…no obstante, esta Sala está obligada constitucionalmente a resolver los asuntos sometidos a su conocimiento, sin que circunstancias como las que ahora se presentan -falta de los Magistrados Titulares y suplentes necesarios para integrar Sala- enerve esa obligación o releve a este Tribunal de su cumplimiento. Por ello, según lo dispuesto en el artículo 14 de la Ley de la Jurisdicción Constitucional y el numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial -“Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos”-, corresponde a los magistrados propietarios el conocimiento de esos asuntos por imperativo de ley, sin que les alcance responsabilidad disciplinaria por esto. Lo anterior constituye, entonces, una causal de justificación normativa que libera de toda responsabilidad, incluida la penal, a los magistrados que conozcan de un asunto en el cual los magistrados suplentes, necesarios para integrar el Tribunal, tengan alguna causal de inhibitoria o impedimento para conocer del mismo asunto…” CO08/24 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: PENSIÓN Subtemas:

NO APLICA.

VIII.- VOTO SALVADO DEL MAGISTRADO CRUZ CASTRO.- La variación de las condiciones del régimen jubilatorio, debe responder a criterios de razonabilidad y proporcionalidad, conforme a criterios técnicos.

Conforme a las razones que se indican a continuación, considero que esta acción debe declararse con lugar. Considero que para ser conforme al Derecho de la Constitución, el régimen transitorio debió cubrir a los servidores judiciales que contaran con veinte años o más de servicio en el Poder Judicial. Estimo, además, que el proyecto de ley que dio origen a la ley en cuestión contiene vicios sustanciales de procedimiento y de fondo.

A. La ausencia de criterio técnico en la decisión legislativa, conculca el principio constitucional de razonabilidad técnica.

Los accionantes llevan razón en sus alegatos, en este caso se ha dado una violación procedimental por la falta de criterio técnico para proceder con un plazo en una norma transitoria restrictiva del derecho a la pensión (violación al principio constitucional de razonabilidad técnica), y además con ello, una violación a los principios de derecho a la pensión, principio de progresividad y principio de igualdad; todo conforme se explica a continuación. Debe existir prudencia y buen criterio del poder legislativo al reformar los sistemas de jubilación, porque se trata de uno de los componentes neurálgicos del estado social.

1.-) En jurisprudencia constitucional, esta Sala ha venido dictando varias resoluciones en donde se sientan las bases de lo que se entiende por el Principio Constitucional de Razonabilidad Técnica, definido como la proporcionalidad entre los medios elegidos y los fines propuestos, el cual permite evitar que la ley sea irracional, arbitraria o caprichosa, pero además, que los medios seleccionados tengan una relación real y sustancial con su objeto (ver resolución n°1992-1739[1][[]1], n°2018-15966[2][[]2], n°2021-11957[3][[]3], entre otras). Dicho principio se constituye así en un parámetro constitucional (ver resolución n°2001-732[4][[]4]). Parámetro que permite concluir constituye un vicio esencial de procedimiento legislativo. la ausencia de criterio técnico (véase la resolución n°2012-13367[5][[]5] y n°2017-11714[6][[]6], ésta última cuando indica: “este Tribunal ha exigido en materia ambiental la necesidad de que haya estudios técnicos para reducir áreas protegidas, y ha concluido que esta omisión constituye un vicio de carácter esencial en el procedimiento legislativo.”). El principio de razonabilidad técnica se aplica, tanto a potestades del Poder Ejecutivo (ver resolución n°2023-012575[7][[]7] donde se consideró que el Decreto 43810 “Reforma Reglamento de Personas Refugiadas”, al establecer como plazo máximo de un mes, para presentar la solicitud de protección internacional como persona refugiada, a partir del día de su ingreso al territorio costarricense, se acreditó una transgresión a los principios de razonabilidad, proporcionalidad y necesidad) como al Poder Legislativo (ver resolución n°2017-11714 donde se consideró que el proyecto de ley "Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional", expediente legislativo número 17.561, era inconstitucional … toda vez que carece de un estudio que determine técnica y científicamente cuál es el impacto real … vicio que se consideró de carácter esencial del procedimiento legislativo) y en cuanto a varias materias, entre ellas la ambiental (ver sobre el principio constitucional de objetivación de la tutela ambiental o principio de vinculación a la ciencia y la técnica en las resoluciones n°2022-23307[8][[]8] de las 13:40 horas del 25 de octubre del 2022, n° 2010-000075[9][[]9] de las 15:01 horas del 6 de enero de 2010, n°2012-013367[10][[]10] de las 11:33 horas del 21 de setiembre de 2012, n°2013-005964[11][[]11] de las 15:05 horas del 30 de abril de 2013 y n°2018-007978[12][[]12] de las 12:45 horas del 18 de mayo de 2018).

Se ha establecido que, en ciertas materias, las potestades legislativas deben estar vinculadas con las reglas unívocas de la ciencia o la técnica, principios elementales de justicia, lógica o conveniencia. Se trata de un límite al ejercicio arbitrario de las potestades legislativas. Claro está, no es que se requiera de un estudio técnico en cualesquiera casos de la función legislativa, pues ello vaciaría de contenido el principio de libre configuración del legislador. No todas las decisiones del legislador deben contemplar un estudio técnico, toda vez que dicha situación anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática. Sin embargo, esta Sala ha precisado que en ciertas materias ese estudio técnico o científico es necesario y por tanto, se ha entendido que la exigencia de tal sustento técnico, es parte del principio constitucional de razonabilidad técnica. Así ha dicho esta Sala que “Los estudios técnicos son necesarios, cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige, so pena de transformar la discrecionalidad en arbitrariedad.” (ver resolución n°2018-00230[13][[]13] de las 10:40 horas del 19 de enero del 2018). Ahora bien, sobre las materias en donde se exige, además de la ambiental, se puede indicar, por ejemplo, la aplicación del principio de razonabilidad técnica en materia de pensiones, ver al respecto la resolución n°2017-11714, donde se estableció lo siguiente, respecto del proyecto de ley "Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional", expediente legislativo número 17.561:

“En esta materia, es menester que la Asamblea Legislativa cuente con estudios técnicos que demuestren que la entrada en vigencia de la Ley no afectará (…)” (resaltado no corresponde al original) Asimismo, desde la resolución n°2379-96 ya esta Sala venía aplicando la obligatoriedad de sustento técnico para las modificaciones a los regímenes de pensiones:

“… esa posibilidad de modificación que tiene acordada a su favor el Estado, encuentra límites no sólo provenientes de la Constitución Política, sino del Derecho Internacional, entre los que se destacan los fijados en el Convenio número 102 de la Organización Internacional del Trabajo relativo a la norma mínima de seguridad social, que señala, en lo que aquí interesa, que las prestaciones concedidas en aplicación del citado Convenio y los gastos de administración se encuentren respaldados en estudios técnicos y no que sean implantados o modificados por una decisión política, arbitraria o antojadiza de la Administración, prestaciones entre las cuales se encuentra el monto de cotización para el régimen de pensiones por parte del empleado y el Estado como tal y como patrono y que obliga a fundamentar esas variaciones en estudios actuariales relacionados con la solvencia del régimen por afectar.”[14][[]14] (resaltado no corresponde al original) Además, esta Sala ha indicado que todas las medidas regresivas para el derecho a la pensión y la jubilación requieren de estudios técnicos y además, que la carga de la prueba de dichos estudios corresponde a los poderes públicos. Así se ha indicado en reiterada jurisprudencia:

“XV. (…) son los poderes públicos quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos, y que en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas, (…)” (ver resolución n°2018-5758[15][[]15], criterio ratificado en las resoluciones n°2021-11957[16][[]16], n°2022-8712[17][[]17], n°2022-10593[18][[]18]).

Según lo indicó esta Sala (ver resolución n°2019-00234[19][[]19]), todo lo anterior encuentra además sustento, en el artículo 71.3 del Convenio 102 de la Organización Internacional del Trabajo (OIT) cuando se indica que cada Estado tiene la responsabilidad de garantizar que cualquier modificación a las prestaciones de la seguridad social tenga de previo un estudio actuarial:

“Artículo 71 (…)

3. El Miembro deberá asumir la responsabilidad general en lo que se refiere al servicio de prestaciones concedidas en aplicación del presente Convenio y adoptar, cuando fuere oportuno, todas las medidas necesarias para alcanzar dicho fin; deberá garantizar, cuando fuere oportuno, que los estudios y cálculos actuariales necesarios relativos al equilibrio se establezcan periódicamente y, en todo caso, previamente a cualquier modificación de las prestaciones, de la tasa de las cotizaciones del seguro o de los impuestos destinados a cubrir las contingencias en cuestión.” Asimismo, esta Sala hizo referencia a lo resuelto por el Comité de Derechos Sociales del Consejo de Europa y al Tribunal Constitucional Colombiano, en los supuestos donde se admita la adopción de medidas regresivas en el ámbito de DESC (derechos económicos, sociales y culturales), indicando que:

“XXVIII.-Continúa redactando el Magistrado Araya García. (…) la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas debe haberse escuchado a los afectados porque se trata del ingreso que reciben en curso, como medio de subsistencia y en el cual se basa la gran parte de su proyecto de vida y de su derecho a una vejez digna.” (resolución n°2021-11957) En reforzamiento de lo indicado por esta Sala sobre la carga de la prueba técnica como obligación del Estado, se tiene además el caso Nombre80021, n°12.249 de la Comisión Interamericana de Derechos Humanos, donde se dijo:

“105. Cabe destacar que el desarrollo progresivo de los derechos económicos, sociales y culturales (DESC) conlleva para los Estados partes en la Convención Americana la obligación de no tomar medidas regresivas en lo relativo a tales derechos. En particular, el Comité del Pacto Internacional de Derechos Económicos, Sociales y Culturales de Naciones Unidas (PIDESC) ha indicado que no son permisibles las medidas regresivas adoptadas en relación con el derecho a la salud. (…) Asimismo, el Comité sostuvo que el Estado en cuestión tiene la carga de probar que esas medidas están debidamente justificadas por referencia a la totalidad de los derechos enunciados en el Pacto en relación con la plena utilización de los recursos máximos disponibles del Estado Parte”. (ver Naciones Unidas, Comité de Derechos Económicos, Sociales y Culturales, Observación General 3: La índole de las obligaciones de los Estados Partes, párrafo 1 del artículo 2 del Pacto, adoptada en el Quinto Período de Sesiones, 1990) 2.-) Asumiendo las premisas que se han expuesto, al examinar la ley impugnada en esta acción, debe indicarse que ya esta Sala procedió a examinar un alegato similar planteado en contra de la totalidad de la ley. Al respecto, esta Sala hizo una valoración GENERAL de dicho sustento técnico en la resolución n°2021-11957 donde se examinaron los argumentos de inconstitucionalidad presentados en contra de toda la ley n°9544. Así por ejemplo, en el considerando XXVIII se dijo lo siguiente: “la propuesta normativa consensuada por la Asamblea Legislativa recibió el aval de la entidad técnica, quien señaló la propiedad técnica de ese diseño finalmente adoptado mediante el informe IICE-186-2017…”. Luego, sobre el sustento técnico del salario de referencia para el cálculo de la pensión determinó que: “contrario a lo que se afirma en el escrito inicial, sí existe un criterio técnico que avala el parámetro fijado por el proyecto de ley con respecto al salario de referencia para el cálculo de la pensión, el Tribunal descarta la existencia del vicio acusado.” (ver resolución n°2021-11957). Ahora bien, resulta necesario expresar sobre el tema DOS importantes observaciones:

-En primer lugar, el sustento técnico al que alude la Sala lo fue para un proyecto que NO fue el finalmente aprobado. Véase las fechas de cada uno de los seis dictámenes del “Estudio actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” realizado por el Instituto de Investigaciones en Ciencias Económicas (IICE): dictamen 1 del 04 de agosto del 2016, dictamen 2 del 14 de noviembre del 2016, dictamen 3 del 01 de febrero del 2017, dictamen 4 del 24 de marzo del 2017, dictamen 5 del 22 de mayo del 2017 y dictamen 6 del 04 de julio del 2017. Lo anterior, en comparación con la fecha del primer debate que se dio mediante sesión extraordinaria n°14 del 30 de octubre del 2017, cuyo texto incorporó varias mociones de fondo y de reiteración que variaron su contenido.

-En segundo lugar, esta Sala NO ha realizado ninguna consideración PARTICULAR sobre el criterio técnico que sustenta el Transitorio VI de la ley impugnada, referido a quienes podrían seguir cubiertos por el régimen anterior a la reforma. Así entonces, tal estudio actuarial del IICE NO se refiere en particular a la medida regresiva adoptada en el transitorio cuestionado en esta acción, pues al respecto indica: “Un aumento en el transitorio pospone los ajustes y por lo tanto afecta negativamente los ingresos del Fondo. Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo.” (ver página 73 del producto n°6, IICE). De modo tal que se constata que no se hizo ningún estudio técnico para valorar el aumento en el transitorio, situación que impidió verificar si existía otra medida menos gravosa que la adoptada en dicho transitorio. Por lo tanto, lo indicado por esta Sala, en el sentido de que la ley en cuestión contaba con estudio técnico, NO se aplica en concreto al transitorio.

Además, de lo acontecido en la vista realizada para esta acción (en fecha 05 de octubre del 2023), quedó demostrado que el Transitorio cuestionado no contó con criterio técnico alguno. Así se evidencia de lo siguiente:

“El estudio del IICE analizó la situación actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial (FPJPJ) según la situación vigente al 31 de diciembre de 2015” (oficio IICE-103-2023 de 9 de junio de 2023 entregado en la Sala el 9 de junio de 2023). “Los resultados del estudio del IICE de la Universidad de Nombre2042 presentan los posibles efectos actuariales de diversas propuestas, con información hasta diciembre de 2015. No obstante, la reforma en la Ley 9544 no fue evaluada en ninguno de estos análisis” (Oficio Acta de Comisión Adhoc EMat-50-2023 de 11 de agosto de 2023 aportado a la Sala el 25 de agosto de 2023). En oficio de la UCR entregado a la Sala el 5 de octubre de 2023 se indica:

“En ese sentido queremos reafirmar lo dispuesto por la Escuela de Matemática en el sentido que la citada ley no se apegó en su momento a ningún modelo actuarial para establecer el transitorio que se está accionando. Por tanto, habría que modelar si se quisiera tener certeza de la seguridad técnica para establecer dicho transitorio” 3.-) Otro aspecto que requiere el análisis de la razonabilidad técnica del Transitorio VI, se refiere a un principio importante: la carga de la prueba de las medidas restrictivas o regresivas de derechos sociales debe provenir de la misma Administración Pública, en este caso, de la Asamblea Legislativa. Si bien es cierto esta Sala indicó que: “una declaración de inconstitucionalidad en este caso, requiere de la aportación de elementos de juicio que logren demostrar la ausencia de proporcionalidad y razonabilidad de emplear el plazo de 18 meses fijado por la jurisprudencia constitucional a partir de la vigencia de la reforma, para la extensión del ámbito de cobertura del régimen previsional anterior.” (resolución n°2021-11957). Empero, si se pretende ser consecuente con lo establecido en jurisprudencia anterior, considero claro que, por un lado, debió contarse con el criterio técnico de previo a la aprobación del transitorio VI (así se dijo en el referido voto n°2021-11957: “la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas.”), y por otro lado, la carga de la prueba debió aportarla la Asamblea Legislativa, cosa que no se hizo, porque no existe tal criterio técnico y así lo reconocieron. Los poderes públicos son quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos, y que en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas. Se constata que la Asamblea no contó con criterio técnico particular para el Transitorio VI impugnado, según la respuesta a la prueba solicitada por esta Sala y ante la pregunta concreta al Presidente del Órgano Parlamentario:

“Sala Constitucional de la Corte Suprema de Justicia. San José, a las diez horas cuarenta y cinco minutos del veintiséis de mayo de dos mil veintitrés.

Como prueba para mejor resolver, solicítese:

• A)Visto el informe del Presidente de la Asamblea Legislativa … se solicita: Indicar y aportar a esta Sala, en concreto, el criterio técnico en que se basó la Asamblea Legislativa para establecer el plazo de 18 meses que indica en el Transitorio VI de la Ley de Reforma del régimen de jubilaciones y pensiones del Poder Judicial, n°9544. Donde se demuestre la razonabilidad de ese plazo.

(…)

Quien suscribe… en mi condición de Presidente de la Asamblea Legislativa de la República de Costa Rica, presento, en tiempo, el informe requerido (…)

En el caso concreto del Transitorio VI de la Ley 9544, el legislador dispone un plazo de 18 meses, … luego del amplio análisis que el legislador realiza conforme la discusión del proyecto de ley que consta en las actas… se considera que el plazo de 18 meses es razonable ya que no se trata de una plazo excesivamente corto, ni excesivamente largo. // La atribución de este plazo responde a la atribución que la Asamblea Legislativa en el ejercicio de la función de dictar leyes… donde goza de una amplia libertad de conformación para desarrollar el programa constitucional fijado por el Poder Constituyente.

(…)

Se considera que en el caso consultado la Asamblea tomó en consideración que no se trataba de un plazo arbitrario, ni antojadizo, ni intempestivo, sino que se trata de un plazo razonable…” Ello debe entenderse así, pese a que esta Sala en resolución n°2021-11957 indicara que: “la decisión legislativa final de reconocerle únicamente a los cotizantes con 28 años y medio de servicio la posibilidad de jubilarse bajo el régimen anterior, sí formó parte de los requerimientos técnicos necesarios que se tomaron en cuenta para diseñar las modificaciones que darían sustento financiero al régimen de Jubilaciones y Pensiones del Poder Judicial. // Asimismo, el plazo de 18 meses estuvo ampliamente apoyado por el criterio técnico, no sólo por razones de seguridad jurídica de acuerdo a la jurisprudencia constitucional, sino también por razones de solvencia actuarial.” Así que debe entenderse, porque se desprende de la prueba solicitada y del expediente legislativo que, NO hubo criterio técnico para sustentar el plazo del transitorio cuestionado, sino que, el propio órgano legislativo fue quien consideró razonable el plazo establecido por “no ser excesivamente corto ni excesivamente largo”, bajo el sustento de la discrecionalidad legislativa. Es evidente que afirmar que no es ni excesivamente corto ni excesivamente largo, es un juicio que sólo responde a una apreciación que parece de sentido común, pero que está lejos de un criterio técnico que responda a un análisis de todas las variables en juego, máxime en un caso en que se restringen o modifican derechos en vías de consolidación.

4.-) Toda medida regresiva de derechos sociales, del derecho a la pensión y la jubilación, debe contar con un estudio técnico que reúna los siguientes requisitos:

-Sea previo a la aprobación de la norma.

-Demuestre los efectos que las medidas regresivas puedan tener en los derechos de los afectados.

-Demuestre que no existen medidas menos gravosas que pudieran haber sido tomadas.

Nótese además que, la Sala ha establecido como parámetro de referencia para examinar la legitimidad constitucional de una medida regresiva de DESC (derechos económicos, sociales y culturales) estos otros criterios de fondo:

*analizar si la restricción de derechos es “idónea” o “adecuada”, *analizar si es “necesaria” o “indispensable”, *analizar si es “proporcionada” en estricto sentido o “ponderada” *determinar que no existan otros medios para alcanzar con la misma eficacia el fin perseguido que sean menos onerosos en términos de sacrificio de los derechos constitucionales susceptibles de limitación en cada caso o, en otras palabras, que no exista otro medio que pueda conducir al fin y que sacrifique en menor medida los principios constitucionales afectados por el uso de esos medios. En palabras de la Corte Interamericana, se debe verificar si “(…) la restricción de los derechos afectados es equivalente a los beneficios que la disposición genera. Si el daño que se produce sobre el patrimonio jurídico de los ciudadanos es superior al beneficio constitucional que la norma está en capacidad de lograr, entonces es desproporcionada (…)”.

5.-) Se observa del expediente legislativo, que inicialmente se tenía un transitorio escalonado, pero luego, en el Plenario Legislativo mediante moción de fondo, se dejó un transitorio de 18 meses, sin mayor sustento técnico. Se observa además que, no consta en el expediente legislativo cuántas eran las personas que estaban prontas a jubilarse, ni cómo les afectaría el cambio de circunstancias, razones por las cuales se constata la ausencia de valoración del impacto de la medida regresiva. Así entonces, la primera conclusión que considero se desprende de todo lo expuesto, es que al constatarse que NO hubo criterio técnico que sustentara el Transitorio VI aquí impugnado, resulta claro que tampoco se cumplió con los requisitos anteriores: ni se demostraron los efectos de la medida sobre los derechos de los afectados; ni que dicha medida fuera la menos gravosa de las que pudieron ser tomadas; ni tampoco que fuera idónea, necesaria, ni proporcionada; ni mucho menos que el daño producido al patrimonio jurídico de los afectados fuera inferior al beneficio constitucional que la norma lograría. Por ello, al no contar, en concreto, el Transitorio impugnado, con un criterio técnico que respalde haber establecido un plazo de 18 meses, ello hace que la norma violara un requisito de procedimiento, y por ello, que resulte inconstitucional por la forma. Se produce una restricción y una variación de las condiciones para adquirir un derecho tan importante como la jubilación, sin el sustento técnico que justificara tal modificación. A diferencia de lo que se considera en el voto de Nombre3382 de esta Sala cuando indica que: “un plazo de 18 meses resulta razonablemente suficiente para proteger a aquellas personas que aún no han cumplido los requisitos para adquirir el derecho a la pensión o jubilación…”, estimo que, no es posible que este tribunal sustituya al legislador indicando de manera genérica y para siempre que un plazo de 18 meses en los transitorios de leyes que reformen los regímenes de pensiones, resulta razonable, pues el plazo transitorio requiere de un sustento técnico específico, individualizado. En materia que incide en derechos fundamentales, no puede definirse un plazo, en abstracto, sin tomar en cuenta las circunstancias de cada reforma. Este criterio responde a una lógica de sentido común, que no es el parámetro aceptable en la tutela del derecho a la jubilación de los funcionarios judiciales. La jurisprudencia de la Sala Constitucional donde se menciona el plazo de los 18 meses no puede considerarse como único parámetro para examinar la razonabilidad y proporcionalidad de los regímenes transitorios. Nótese que en todo caso, esa jurisprudencia es genérica, y no puede considerarse que aplique igual plazo a todos los casos de regímenes transitorios. El criterio aplicado en el voto de Nombre3382 ignora la singularidad del caso en examen y deriva una regla general, desconociendo que en los casos en que se aplicó, existen diferencias que no permiten derivar una conclusión como la que asume, desconociendo que las premisas de cada precedente, son diferentes. El análisis de razonabilidad y proporcionalidad debe ser casuístico, atendiendo a las situaciones particulares de cada reforma. Una conclusión no puede asumirse si no es congruente con las premisas.

Por otro lado, tampoco es de recibo lo que se indica en el voto de Nombre3382 sobre que el plazo de los 18 meses contó con sustento técnico en el informe emitido por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Nombre2042 (IICE), el 4 de julio de 2017, denominado Producto 6 “Recopilación e informe final: conclusiones y recomendaciones”, puesto que:

a. Dicho informe (de fecha julio 2017) fue el sustento técnico del texto vigente a ese momento, que NO es el texto finalmente aprobado en octubre del 2017 (donde en el Plenario sufrió modificaciones de fondo importantes mediante mociones, en cuenta, allí fue donde se estableció el transitorio de 18 meses).

b. Dicho informe solo puede entenderse como sustento para el texto del proyecto de ley de ese momento y no el que finalmente se aprobó. Si el texto del proyecto cambió (en cuanto a condiciones, edad, monto y demás), es lógico que la solvencia del Fondo sería mayor que la que existía cuando el informe técnico se rindió. Así entonces, las conclusiones a las que arribaría con un transitorio de 20 años, serían diferentes.

c. Dicho informe es incompatible con lo indicado por los representantes de la Junta de Pensiones del Poder Judicial, tanto en el informe rendido como en la vista, donde se indica expresamente “no hay ningún riesgo de insolvencia del Fondo con incluir en el transitorio a los que cuenten con 20 años, tomando como base que el Fondo tendría una solvencia de casi 80% con población abierta, en comparación con el IVM de la CCSS que tiene un 50%, siendo así el Fondo del Poder Judicial los que mayor solvencia tienen.” El voto de Nombre3382 ignora este dato actualizado y asume el criterio de un informe que no respondía a la realidad de la época y a la situación financiera del fondo en la actualidad.

d. El oficio suscrito por la Superintendencia de Pensiones de octubre del 2023 no se puede citar en un voto porque la SUPEN no es interviniente en la acción, y por lo tanto, sus afirmaciones no pudieron ser contextualizadas o incluso rebatidas en la vista. Se trata de un criterio que no pudo ser confrontado y discutido en el proceso de la acción. El voto de Nombre3382 toma en cuenta un dictamen que no fue confrontado y rebatido en la acción o en la audiencia oral.

e. El mismo informe 6 indica en las conclusiones (página 73), que “Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo.” 6.-) Como prueba que demuestra que el plazo establecido ha tenido efectos gravosos en los afectados, se indica en el informe presentado por la Corte Suprema de Justicia que:

-La cantidad de renuncias que se han dado desde el 2018 hasta la fecha suman 750.

-La cantidad total de personas que se vieron afectas por la Ley de Reforma del régimen de jubilaciones y pensiones del Poder Judicial es de 1292, lo cual representa un 9,68% del personal judicial.

-Es indiscutible el impacto de las renuncias que se han dado en el Poder Judicial en términos de los costos asociados con la contratación y capacitación de nuevo personal.

-Las personas trabajadoras más antiguas tienen que asumir tareas adicionales para cubrir las responsabilidades del puesto vacante, aumentando su carga de trabajo y potencialmente afectando su desempeño.

-Es ineludible que el cambio en las condiciones para jubilarse ha tenido un impacto negativo en la salud física y emocional de una persona trabajadora que ya estaba planificando su retiro y estaba preparada para hacerlo. El estrés adicional y la exigencia física y mental del trabajo prolongado puede aumentar el riesgo de enfermedades crónicas y problemas de salud mental.

-Se observa en el cuadro resumen durante los años cercanos a la reforma se observa un repunte de los diagnósticos por ansiedad, igualmente debe llamar la atención el incremento de los diagnósticos relacionados a cuadros de depresión que emergen posterior a implementada la reforma en análisis. En relación con ese tema, las personas trabajadoras han manifestado sentimientos de frustración, desmotivación, malestar, tristeza, apatía, desesperanza, angustia, entre otros. Además, se atienden cuadros de ansiedad, depresión, estrés laboral, síndrome de la persona trabajadora quemada, entre otros.

En este sentido, resulta claro que no se ha demostrado que el plazo establecido fuera el menos gravoso del que pudo haberse establecido, tornándolo irrazonable y desproporcionado, además de ser un plazo inidóneo e innecesario. Máxime si se compara con otros plazos establecidos en transitorios de otras leyes, a saber:

Plazos de transitorios 1) MAGISTERIO NACIONAL *20 años de pertenencia al régimen Ley n°8536 del 2006:

Quienes al 18 de mayo de 1993 o al 13 de enero de 1997 hayan servido al menos durante 20 años en el Magisterio Nacional, mantendrán el derecho de pensionarse o jubilarse al amparo de la ley n° 2248 y n°7268.

• 2)IVM CCSS *Edad de 55 años Reglamento n°7952 del 2005:

Quienes cuenten con 55 años o más, conservarán el derecho a pensión según las condiciones vigentes antes de la presente reforma.

• 3)*54 meses de vigencia de la reforma Reglamento n°8856 del 2016:

La reforma entra a regir a partir del 1° de setiembre del 2016. Una vez transcurridos 54 meses desde la entrada envigencia, ninguna persona podrá acceder a un retiro anticipado.

• 4)FUNCIONARIOS DEL TSE *Con solo hayan cotizado al Fondo de Pensiones del Poder Judicial Ley n°9544 del 2018 Funcionarios del TSE que hayan cotizado al Fondo de Pensiones del Poder Judicial de previo a la entrada en vigencia de esa ley, la reforma no se les aplicará en perjuicio.
• 5)PENSIONES CON CARGO AL PRESUPUESTO NACIONAL Ley n°9388 del 13/09/2016 PLAZO DE 5 años:

ARTÍCULO 8.- Reforma del transitorio III de la Ley N.° 7302. Se reforma el transitorio III de la Ley N.° 7302, Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, de Otros Regímenes Especiales y Reforma a la Ley N.° 7092, del 21 de abril de 1988, y sus Reformas, Ley de Impuesto sobre la Renta, de 8 de julio de 1992. El texto es el siguiente:

"Transitorio III.- Dentro del plazo de cinco años, contado a partir de la entrada en vigencia de la presente ley, las personas que tengan derecho podrán pensionarse bajo los términos originales contemplados en la Ley N.° 7302, Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, de Otros Regímenes Especiales y Reforma a la Ley N.° 7092, de 21 de abril de 1988, y sus reformas, Ley del Impuesto sobre la Renta, de 8 de julio de 1992, tanto en lo que respecta al porcentaje a otorgar en la tasa de reemplazo como la posibilidad de descontar de la edad de retiro un año por cada dos de los años servidos y cotizados para la Administración Pública.

En el plazo citado en el párrafo anterior, para poder pensionarse o jubilarse se requerirá tener un mínimo de cincuenta y cinco años de edad y los años servidos y cotizados que determine su régimen.

Finalizado este plazo, la edad mínima de retiro quedará establecida en los sesenta años, igual a la edad contemplada en el artículo 4 de la Ley N.° 7302." 7.-) Si bien, el haber declarado la inconstitucionalidad de un vicio de procedimiento -como lo es en este caso, la ausencia de criterio técnico para establecer una medida restrictiva del derecho a la pensión-, es suficiente para la estimatoria de esta acción. Si bien ello hace innecesario referirme al resto de alegatos de fondo indicados por los accionantes, considero que también estamos frente a otras violaciones al Derecho de la Constitución, tales como: violación al derecho de pensión en vías de adquisición de las personas que resultaron excluidas del transitorio sin criterio técnico, derecho derivado del Derecho Internacional de los Derechos Humanos, violación al principio de confianza legítima, violación al derecho de igualdad, según se indica a continuación.

B.-) Sobre cómo se violentaron los derechos en vías de adquisición Los accionantes indican que, la aplicación automática de una disposición transitoria tan severa y nunca antes aplicada a ningún grupo con situaciones jurídicas consolidadas en materia jubilatoria, resulta contrario al Derecho de la Constitución, por lo que solicita se declare la inconstitucionalidad y se permita a sus representados poder jubilarse con las anteriores condiciones a dicha reforma, dada la cantidad de tiempo que han pertenecido al régimen en cuestión. Agregan además que, otras reformas jubilatorias han tenido un transitorio escalonado que les ha permitido modular sus expectativas jubilatorias, situación que no se ha permitido en el Poder Judicial. Indican además que, otros tribunales constitucionales reconocen el derecho a un tratamiento diferenciado a las personas que se encuentran cercanas a adquirir los requisitos jubilatorios y que se encuentran frente a una modificación legislativa, por lo que se solicita la aplicación del derecho comparado. Así consideran que, no solo se parte de una tutela al derecho jubilatorio que se da cuando se cumplen los presupuestos fácticos que establecen las normas, sino que, además, se reconocen y protegen los derechos en vías de adquisición, que, conforme a la cercanía con el momento de alcanzar el derecho, requieren de una tutela o protección del Estado. La Procuraduría General de la República (PGR) indica que, en nuestro medio se reconoce únicamente el derecho adquirido a la jubilación cuando se han cumplido todos los requisitos, mientras que el mal denominado “derecho de pertenencia” no es más que una simple expectativa, que se extingue con la reforma o derogación introducida por la nueva normativa que sea promulgada. Agrega que, si bien la jurisprudencia constitucional ha reconocido que, en el caso de los regímenes contributivos de pensión, la cotización origina un “derecho de pertenencia”, ello no hace inmodificable las reglas del sistema. Por su parte, el Presidente de la Asamblea Legislativa manifiesta que, no resulta pertinente lo alegado por los accionantes, en cuanto a que la ley 9544 entre en contradicción con lo establecido en los convenios de la Organización Internacional de Trabajo. Agrega que, la Sala Constitucional al resolver la consulta facultativa no encontró que en la ley 9544 afectación a los derechos adquiridos y situaciones jurídicas consolidadas. Tampoco considera que se haya dado violación a Pacto Internacional de Derechos Civiles y Políticos, ni al Pacto Internacional de los Derechos Económicos, Sociales y Culturales, pues la ley no afecta los derechos a la seguridad social. Se rechaza además la lesión a los principios de trasparencia, seguridad jurídica, buena fe, confianza legítima, intangibilidad relativa del patrimonio, no confiscatoriedad y respeto de los derechos adquiridos y situaciones jurídicas consolidadas. En criterio de la Corte Suprema de Justicia, en las tres ocasiones en la Corte fue consultada se emitió criterio negativo y se opuso al proyecto de ley consultado, debido a que incide en la organización y funcionamiento del Poder Judicial. Consideran que debió haberse resguardado el derecho a la jubilación, con un transitorio razonable, justo, sustentado en criterios técnicos y objetivos.

Al respecto considero que los accionantes llevan razón en sus alegatos, y se ha dado en este caso una violación al derecho de pensión en vías de adquisición, derecho derivado del Derecho Internacional de los Derechos Humanos; todo conforme se explica a continuación. La trascendencia de la jubilación requiere una tutela específica, cuando ese derecho está en vías de consolidación. No puede ignorarse esa condición tutelando sólo el derecho adquirido y dejando sin tutela el lento proceso en que el funcionario alcanzará, después de años, tal condición.

Tradicionalmente se ha entendido que, el artículo 34 Constitucional protege los “derechos adquiridos” y las “situaciones jurídicas consolidadas”. Sin embargo, en razón de lo que establece el Derecho Internacional de los Derechos Humanos relacionados con el derecho al trabajo, podemos agregar otro concepto constitucionalmente tutelado, el concepto de “derechos en vías de adquisición”. En términos generales, se pueden definir los conceptos de la siguiente manera:

Derechos adquiridos (art.34 constitucional) Se refieren a aquella circunstancia consumada en lo que una cosa -material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable.

(ver sentencia n° 2765-97) Situaciones jurídicas consolidadas (art.34 constitucional) Representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante es cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que —por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a /a vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica de/tipo 'si..., entonces.. .M, vale decir si se ha dado el hecho condicionante, entonces la 'situación jurídica consolidada' implica que, necesariamente, deberá darse también el efecto condicionado.

(ver sentencia n° 2765-97) Derechos en vías de adquisición (art.34 constitucional y normativa de la OIT) Derechos de quienes están cerca de acceder a un derecho específico bajo un régimen anterior.

Derechos que están prontos a consolidarse de haberse mantenido las condiciones establecidas.

Derechos que se ubican en una posición intermedia entre los derechos adquiridos o situaciones jurídicas consolidadas, y las meras expectativas, por lo tanto son merecedores de una cierta protección, que también encuentra cobijo en el art.34 Constitucional.

Derecho Comparado, ver sentencia de Corte Constitucional de Colombia C-789 del 24 de setiembre del 2002: No es posible eliminar el régimen de transición de aquellas personas que hubieren logrado el 75% del tiempo de servicio necesario para adquirir la prestación antes de la entrada en vigencia de la reforma de pensiones, pues ello desconocería la expectativa legítima del estado.

En todos estos casos, el parámetro constitucional protege, tornando intangible para el legislador, la situación de quien obtuvo el derecho (derecho adquirido), de quien disfruta de la situación (situación jurídica consolidada) o de quien estará pronto a disfrutarlo (derecho en vías de adquisición), por razones de equidad y certeza jurídica. Sobre los derechos en vías de adquisición existe diversa normativa internacional.

Así, el Convenio Multilateral Centroamericano de Seguridad Social (San José), aprobado por Nombre2042 mediante ley n°5333 del 22 de agosto de 1973, artículo 27 establece:

“Artículo 27:

1º.- En caso de denuncia del presente Convenio, será mantenido todo derecho adquirido en virtud de sus disposiciones.

2º.- Los derechos en vías de adquisición, relativos a períodos cumplidos con anterioridad a la fecha en que la denuncia sea efectiva, no se extinguirán por el mero hecho de la denuncia, su conservación se determinará por vía de acuerdo o, a falta de acuerdo, por la legislación correspondiente a la Institución competente.” La Convención sobre el Estatuto de los Refugiados, aprobado por Nombre2042 mediante ley n°6079-A del 29 de agosto de 1977, en el artículo 24:

“Artículo 24:

1. Los Estados Contratantes concederán a los refugiados que se encuentren legalmente en el territorio de tales Estados el mismo trato que a los nacionales en lo concerniente a las materias siguientes:

(…)

• b)Seguros sociales (disposiciones legales respecto a accidentes del trabajo, maternidad, enfermedad, invalidez, ancianidad, fallecimiento, desempleo, responsabilidades familiares y cualquier otra contingencia que, conforme a las leyes o los reglamentos nacionales, esté prevista en un plan de seguro social), con sujeción a las limitaciones siguientes: i) Posibilidad de disposiciones adecuadas para la conservación de los derechos adquiridos y de los derechos en vías de adquisición; (…).” Lo cual es reconocido también como una máxima, según el artículo 7 del Convenio 118 de la OIT denominado Convenio sobre la igualdad de trato (seguridad social), 1962, según el cual:

“Artículo 7 1. Los Estados Miembros para los que el presente Convenio esté en vigor deberán esforzarse en participar, (…) en un sistema de conservación de derechos adquiridos y de derechos en vías de adquisición, reconocidos en virtud de su legislación a los nacionales de los Estados Miembros (…)” (resaltado no corresponde al original) Asimismo, el artículo 30 del Convenio 128 de la OIT, denominado Convenio sobre las prestaciones de invalidez, vejez y sobrevivientes, 1967, según el cual:

“Artículo 30:

La legislación nacional deberá, bajo condiciones prescritas, prever la conservación de los derechos en curso de adquisición respecto de las prestaciones contributivas de invalidez, vejez y sobrevivientes.” (resaltado no corresponde al original) Además, del artículo 6 del Convenio 157 de la OIT, denominado Convenio sobre la conservación de los derechos en materia de seguridad social, 1982 (núm. 157):

“Artículo 6 A reserva de las disposiciones del apartado a) del párrafo 3 del artículo 4 del presente Convenio, todo Miembro deberá esforzarse en participar con cada uno de los demás Miembros interesados en un sistema de conservación de los derechos en curso de adquisición respecto de toda rama de seguridad social mencionada en el párrafo 1 del artículo 2 del presente Convenio para la cual esté en vigor una legislación de cada uno de estos Miembros, en favor de las personas que hayan estado sujetas sucesiva o alternativamente a las legislaciones de dichos Miembros.” (resaltado no corresponde al original).

Sobre el valor de los convenios internacionales no ratificados por Costa Rica, debe recordarse el valor de los instrumentos internacionales de derechos humanos. La Sala Constitucional, desde temprana jurisprudencia de los años 90 indicó que el artículo 48 Constitucional -reformado en 1989-, había creado una nueva categoría de normas: los instrumentos internacionales sobre derechos humanos, lo cuales, tienen un rango, no solo superior a las leyes (en virtud del artículo 7) sino además superior a la Constitución Política, en la medida es que protejan más los derechos humanos (ver sentencias 1147-90, 3805-92, y además 1739-92, 3435-92, 2313-95,[20][[]20]. Ahora bien, incluso se han considerado como parte del parámetro o bloque de constitucionalidad, aquellos instrumentos internacionales de derechos humanos que no hayan sido aprobados por Costa Rica. Así se ha dicho:

“En este aspecto hay que rescatar la referencia específica que hoy la Constitución hace de los "instrumentos internacionales", significando que no solamente convenciones, tratados o acuerdos, formalmente suscritos y aprobados conforme al trámite constitucional mismo … sino cualquier otro instrumento de tenga la naturaleza propia de la protección de los Derechos Humanos, aunque no hay sufrido ese trámite, tiene vigencia y es aplicable en el país. Así, la Declaración Universal de Derechos Humanos (París, 10 de diciembre de 1948), por su carácter y naturaleza, no ha necesitado de los trámites constitucionales de aprobación, para entenderse como vigente y con la fuerza normativa que le otorga la materia que regula. Otro tanto cabe decir de las "Reglas Mínimas para el tratamiento de los reclusos", de la Organización de las Naciones Unidas, que aunque sean producto de reuniones de expertos o el trabajo de algún departamento de esa organización, por pertenecer nuestro país a ella, y por referirse a derechos fundamentales, tienen tanto el valor de cualquier normativa internacional que formalmente se hubiera incorporado al derecho interno costarricense.” (sentencia n°2000-9685. Resaltado no corresponde al original. Ver además sentencia [21][4] Tal como lo ha dicho esta Sala resolviendo otra acción relacionada con el tema de pensiones, esta acción de inconstitucionalidad tiene en el trasfondo los derechos económicos, sociales y culturales, derechos humanos muy concretos, que se constituyen en temas que deben ser cuidadosamente analizados y tutelados por este Tribunal Constitucional, especialmente, al tratarse de los derechos que acompañan a las personas adultas mayores en momentos muy importantes de su vida (ver resolución n.º 2020-19274, de las 16:30 horas del 07 de octu[22][[]22]). Por Sentencia N° 2012-16628 de las 16:30 horas del 28 de noviembre de 2012 (ratificado en sentencia anterior n°2020-19274), esta Sala estableció, sobre la normativa internacional en materia de seguridad social como un piso o mínimo:

“Lo cierto es que la normativa internacional establece lo que la jerga de la seguridad social denomina en algunos de los documentos de la OIT el piso social o piso de protección social como un mínimo de obligaciones fundamentales que sí podrían ser justiciables, sí existen obligaciones jurídicas no cumplidas y exigibles en forma doméstica, o agotada ésta, a nivel internacional. […]” La Sala ha indicado que “hay un derecho al mantenimiento de la protección que el asegurado recibe conforme a la legislación nacional, al pertenecer a un régimen y especialmente declarado al cumplir con las condiciones y requisitos necesarios, para el disfrute de un derecho de goce pacífico.” (ver sentencia n°2020-19274). Derecho al mantenimiento de la protección que se puede extender, no sólo al disfrute de un derecho declarado, sino además, al derecho a pertenecer a un régimen con las condiciones y requisitos pactados desde el inicio. Lo cual está relacionado también con el principio constitucional de confianza legítima relacionado con el principio de seguridad jurídica y el principio de buena fe, pues opera como un límite al poder público que impide vulnerar la confianza de los administrados en el sentido de que no sea vulnerada sin razón fundamentada, protegiendo la estabilidad de las situaciones jurídicas, de derechos adquiridos y de derechos en vías de adquisición. Dicho principio, aplicado a este caso significa que, el cambio en las condiciones y requisitos jubilatorios si bien pueden cambiar por decisión del legislador (pues ciertamente no es que exista un derecho a la inmutabilidad del ordenamiento jurídico), pero, a diferencia de lo que se consideró en el voto de mayoría, estimo que dicho cambio debe respetar los derechos en vías de adquisición de aquellos que estén prontos a cumplir dichas condiciones y requisitos. En tema tan trascendental en la vida del ciudadano trabajador, se requiere una distinción jurídica que recoja la particularidad de una situación tan relevancia, cuál es el régimen que regula el proceso jubilatorio.

Por otro lado, ya lo ha dicho esta Sala “la crisis financiera ni es en sí misma ni puede ser una justificación para la toma de decisiones regresivas”. Además, “la falta de recursos no puede servir de pretexto para el incumplimiento de ellos [los derechos sociales]”. (ver sentencia n°2020-19274). Por ello, no considero procedente que el voto de Nombre3382 sustente la regresión de condiciones asociadas al derecho de pensión, en la crisis del régimen de pensión. En el mismo sentido en que esta Sala lo dijo en la resolución de referencia (sentencia n°2020-19274) debe entenderse un tope a la potestad legislativa para cambiar las condiciones de un régimen de pensiones, referido al denominado “derecho de pertenencia” que protege además los derechos en vías de adquisición. Tal como se dijo, sobre este concepto de derechos en vías de adquisición, los mencionados artículos 7 del Convenio 118 de la OIT, artículo 30 del Convenio 28 OIT y artículo 6 del Convenio 157 de la OIT, convenios que, aunque no aprobados por Costa Rica, constituyen parte del derecho internacional de los derechos humanos, y por tanto, parte de nuestro bloque o parámetro de constitucionalidad. Y es que ello no se trata de darle preponderancia a intereses particulares frente a los generales, como se indica en el voto de mayoría, sino que, el interés general en su adecuada dimensión incluye el respeto de los derechos en vías de adquisición. No considero admisible aceptar el argumento que asume que las crisis financieras están por encima de los derechos fundamentales, en cuanto consideremos ello así, estaríamos admitiendo la muerte inminente del Derecho de la Constitución, pues en nuestros días, prácticamente todo cabe justificarse por una crisis fiscal. Y, no es que desconozca que tales crisis existan, sino que, los derechos fundamentales siempre deben tener supremacía frente a ellas, siendo lo procedente responsabilizar a quienes han llevado a tales crisis pero no a costa de los derechos sociales. En este sentido no puedo menos que estar en desacuerdo con el concepto que ha venido indicando la Nombre3382 de esta Sala, en cuanto al Estado social de derecho posible, concepto que viene a constituir una clara regresión de lo debe entenderse como Estado social de derecho, incluso así lo ha entendido la Corte Constitucional Italiana en el considerando 11 de la sentencia 275/2016 cuando se entiende que el equilibrio presupuestario no puede condicionar la satisfacción de los derechos humanos. Asimismo, la sentencia de la Corte Constitucional Colombiana (140/19) cuando se indica que ninguna autoridad pública podrá invocar la sostenibilidad fiscal para socavar derechos fundamentales. Es preocupante que se postule un concepto tan vago e inexacto como “Estado social de derecho posible”, ese horizonte, que luce como una entelequia, viene a condicionar todo el estado social. No hay Estado de derecho si asumimos que los derechos sociales sólo son admisibles, si son posibles. Es decir, que en función de valoraciones estrictamente fiscalistas o economicistas, los sectores con menos poder económico y político, ven reducidos, restringidos o suprimidos, los derechos sociales. Hay que reflexionar mucho sobre estos horizontes que abren la puerta a la devaluación y reducción del Estado social, que incluye, sin duda alguna, el tema del régimen jubilatorio. Más grave aún si se restringen sin un criterio técnico específico y adecuado al caso concreto.

En Derecho Comparado, se observa por ejemplo las consideraciones que al respecto ha hecho la Corte Constitucional Colombiana, indicando que, las expectativas legítimas de quienes aspiran a pensionarse bajo un régimen determinado, deben ser objeto de alguna consideración protectora por el legislador, siendo una de las maneras de protección de las expectativas legítimas el establecimiento de regímenes de transición, que amplían el ámbito de protección más allá de sólo los derechos adquiridos (ver sentencias C-147 del 19 de marzo de 1997 y C-428 del 01 julio 2009). A diferencia de lo que se indica en el voto de mayoría, que yerra al indicar que en Colombia no se fija un plazo para garantizar los derechos en vías de adquisición, estableciéndose en un 75% de cotización del régimen anterior, véase lo que se indicó en la sentencia de Corte Constitucional de Colombia C-789 del 24 de setiembre del 2002:

“3.3. La protección de las expectativas legítimas de los trabajadores y la interpretación más favorable (…) En virtud de dicha protección, los tránsitos legislativos deben ser razonables y proporcionales, y por lo tanto, la ley posterior no podría desconocer la protección que ha otorgado a quienes al momento de entrada en vigencia del sistema de pensiones llevaban más de quince años de trabajo cotizados.

(…)

Por lo tanto, resultaría contrario a este principio de proporcionalidad, y violatorio del reconocimiento constitucional del trabajo, que quienes han cumplido con el 75% o más del tiempo de trabajo necesario para acceder a la pensión a la entrada en vigencia del sistema de pensiones, conforme al artículo 151 de la Ley 100 de 1993 (abril 1º de 1994), terminen perdiendo las condiciones en las que aspiraban a recibir su pensión.

En tal medida, la Corte establecerá que los incisos 4º y 5º del artículo 36 de la Ley 100 de 1993 resultan exequibles en cuanto se entienda que los incisos no se aplican a las personas que tenían 15 años o más de trabajo cotizados para el momento de entrada en vigor del sistema de pensiones consagrado en la Ley 100 de 1993, conforme a lo dispuesto en el artículo 151 del mismo estatuto.

(…)

Por lo tanto, las personas que hubieran cotizado durante 15 años o más al entrar en vigencia el sistema de pensiones, y se encuentren en el régimen de prima media con prestación definida, tendrán derecho a que se les apliquen las condiciones de tiempo de servicios, edad y monto de la pensión, consagradas en el régimen anterior, siempre y cuando: (…)” (resaltado propio) En el caso del derecho a la jubilación o a la pensión se tiene lo siguiente:

o El derecho a la jubilación o la pensión es una situación jurídica consolidada, el cual se adquiere cuando el interesado cumple con todos los presupuestos establecidos por ley.

o El derecho de pertenencia a un régimen jubilatorio que es el derecho a permanecer en un régimen de pensiones propio de la institución en que se labora, así como sus elementos o condiciones definitorias. El derecho a pertenecer al régimen implica el derecho a no ser excluido, a que se mantengan sus parámetros generales. Se puede ubicar aquí el derecho de pensión en vías de adquisición. Este derecho deja de ser una simple expectativa de derecho y se adquiere desde que se ingresa al régimen jubilatorio (ver s[23][[24]23] y n°6491-98[[]24]). La jurisprudencia ha reconocido que la cotización para un régimen de pensiones origina un "derecho de pertenencia al régimen", como queda dicho, pero no hace inmodificable las reglas del sistema" (ver s[25][[]25]). Así que no se trata de una simple expectativa de derecho, sino que tiene un grado mayor de protección. El régimen al que se pertenece puede ciertamente sufrir reformas, pero ellas están sujetas a ciertas limitaciones, básicamente, esas reformas deben tener un sustento técnico y además, deben respetar los derechos en vías de adquisición. De lo primero ya se ha indicado lo correspondiente supra, y de lo segundo, se trata que el legislador tome en cuenta esos derechos en vías de adquisición en sus disposiciones transitorias.

Así lo ha indicado antes esta Sala:

“… el derecho de jubilación se manifiesta primeramente bajo el nombre y la forma de "derecho de pertenencia al régimen" desde el ingreso del funcionario al sistema y hasta que acontece el evento consistente en el cumplimiento de los requisitos necesarios para la obtención del beneficio. Luego, deja ese ropaje para pasar a llamarse "derecho a la prestación actual", una vez que ha ocurrido aquella señalada eventualidad.” (ver re[26][[]26]).

Es importante poner énfasis en la protección constitucional del derecho a la pensión, en su contenido esencial. Procede ejercer el control de constitucionalidad de la actividad parlamentaria y, por consiguiente, de las leyes, por vulnerar los principios de razonabilidad y proporcionalidad cuando están vinculados a un derecho fundamental pues ello, además, vació su contenido esencial. Esta Sala ha indicado ya (ver resol[27][[]27]) que el derecho a la jubilación o la pensión es una situación jurídica consolidada, violentándose los derechos en vías de adquisición, para el caso de aquellos funcionarios que pudieron técnicamente incluirse dentro del transitorio y que pese a ello no se hizo. Ello no quiere decir que todos los cotizantes o que todos los que pertenezcan al régimen de pensiones del Poder Judicial tuvieran en este caso una situación jurídica consolidada, sino que se trata de la protección de los derechos en vías de adquisición -derivados del derecho de pertenencia- de aquellos que, pudiendo técnicamente incluirse dentro del transitorio, no se les incluyó. El derecho de pertenencia hace surgir en favor de los cotizantes que estuvieren prontos a acogerse a la jubilación, una protección de sus derechos en vías de adquisición, bajo las condiciones más favorables del régimen anterior, derechos protegidos constitucionalmente al amparo del artículo 34 Constitucional, pero además, bajo el amparo del derecho internacional de los derechos humanos. A este grupo de funcionarios, la norma cuestionada permitió que se les violentara su derecho en vías de adquisición, y con ello, de pensionarse bajo el régimen anterior que les resultaba más favorable.

Claramente, no es la misma situación, ni el mismo amparo constitucional, que tienen las personas que recién inician su cotización en el Fondo de Pensiones y aquellas que llevan muchos años e incluso, están a pocos años de pensionarse. Esta distinción tan importante en la tutela del derecho a la jubilación, no se hace, de ninguna manera, en el transitorio que se discute en esta acción. Todo lo cual violenta además el principio de progresividad de los derechos fundamentales, pues el legislador democrático está limitado por los derechos fundamentales, tal como lo ha indicado esta Sala:

“Los Derechos Fundamentales vinculan negativa y positivamente al legislador. En un sentido negativo, debe respetarlos para lograr su plena efectividad, esto es, funcionan como una barrera o un límite. En un sentido positivo, los derechos fundamentales son para el legislador constituido un mandato, un principio rector o un programa por lo que debe desarrollarlos y configurarlos pero con respeto de su contenido esencial, esto es, del núcleo mínimo e indisponible – límite de límites- de cada uno de estos. El legislador constituido al desarrollar los derechos fundamentales debe velar por su progresiva intensificación y extensión de su eficacia y, en general, por su plena efectividad, para evitar cualquier regulación regresiva y restrictiva”. (ver reso[28][[]28]).

Todo lo cual encuentra fundamento en el artículo 26 de la Convención Americana de Derechos Humanos, y lo que esta Sala ha establecido al respecto:

“El artículo 26 obliga a los Estados signatarios a tomar providencias a nivel interno así como de cooperación internacional, con el propósito de lograr progresivamente la plena efectividad de los derechos que se derivan de las normas económicas, sociales, de educación, ciencia y cultura, contenidas en la Carta de la Organización de los Estados Americanos.” Resolución n°1995-03932.

Nombre5650.-) Sobre el efecto que debió tener la declaratoria de inconstitucionalidad del transitorio cuestionado En esta controversia, considero que la declaratoria de inconstitucionalidad no puede tener por único efecto el anular toda la norma, pues lo inconstitucional no es haber establecido un transitorio sino un plazo sin sustento técnico. Por ello me inclino por anular únicamente el plazo de “dieciocho meses” establecido en el Transitorio VI de la norma impugnada. Ahora bien, es evidente que el anular dicho plazo es insuficiente para la protección de los derechos fundamentales aquí involucrados, corresponde indicar los efectos adicionales que tendría esta declaratoria de inconstitucionalidad. Si bien esta Sala ha indicado en anteriores oportunidades que no le corresponde “la potestad de elaborar, con los elementos técnicos aportados, una solución al problema real presentado por la situación financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial.” Debido a que consta en esta acción, y en la vista realizada, elementos técnicos que permiten poder elaborar una solución, se procede a indicar cuál es el plazo que debe entenderse aplica para el Transitorio VI de la ley impugnada. Estableciéndose como parámetro razonable el plazo establecido para acogerse a la pensión anticipada, a saber, el plazo de 20 años o más de cotización para el régimen, pues ello equivaldría a haber cotizado un 66% del plazo total (que eran 30 años). Dicho plazo permite respetar los derechos en vías de adquisición y el derecho de pertenencia de quienes habían cotizado la Nombre3382 del plazo total, y que estaban prontos a jubilarse. Además, de resultar proporcional al plan de vida, razonable conforme a la sostenibilidad financiera del Fondo de Pensiones, en respeto del principio de confianza legítima (confianza en que condiciones no serán variadas de forma abrupta, confianza en que las reglas establecidas se respetarán y si [29][[]29]). Así, considero que debe leerse el transitorio VI impugnado de la siguiente manera:

“Transitorio VI.- Los servidores judiciales que cuenten al momento de entrada en vigencia esta ley con, veinte años o más de servicio en el Poder Judicial, podrán pensionarse al amparo de las disposiciones establecidas en el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, según las condiciones vigentes antes de esta reforma.” El fundamento técnico para el plazo indicado de 20 años lo sustento en el siguiente criterio técnico:

-El anterior Presidente de la Junta Administradora del Fondo, señor Carlos Montero, ante una comparecencia en la Corte Plena del Poder Judicial (sesión n° 08-2021, del 22 de febrero de 2021, artículo XVIII) manifestó que el Fondo se encontraba en condiciones de asumir las jubilaciones con las condiciones anteriores a la reforma, de personas que al momento de la entrada en vigencia del Transitorio VI, contaban con 20 años o más de servicio en el Poder Judicial.

-El artículo 29 del Convenio n°102 de la OIT establece un plazo mínimo de 20 años de residencia para la concesión de una pensión. En un inicio esta Sala interpretó di[30][31][[]30] y n°00-673[[]31]) entendiendo “residencia” como pertenencia a un régimen, para luego, cambiarse de criterio, indi[32][[]32] que “residencia” significa la residencia habitual en el territorio del Miembro y el término “residente” designa la persona que reside habitualmente en el territorio del Miembro. Sin embargo, es lo cierto que, el parámetro de 20 años constituye un criterio válido y razonable para entender también que 20 años puede ser el plazo de protección de pertenencia a un régimen al que se cotiza.

-El Código Iberoamericano de Seguridad Social (de la Organización Iberoamericana de Seguridad Social O.I.S.S., suscrito por Nombre2042 en San Carlos de Bariloche, Argentina, en octubre de 1995) establece en su artículo 50.1, un período de veinte años de cotización como periodo mínimo para garantizar una cuantía.

-Observando el plazo establecido en el transitorio de otras leyes relacionadas con Fondo de Pensiones, se tiene una media. Así por ejemplo la Ley del Magisterio Nacional estableció un plazo de 20 años de pertenencia al régimen (ley n°8536), mientras que otras leyes establecen un plazo mayor de transitorio: en 5 años las pensiones con cargo al Presupuesto Nacional (ley n°9388), 54 meses el IVM de la CCSS (reglamento n°8856); o incluso, con solo haber empezado a cotizar quedan al amparo de normativa anterior en el caso de funcionarios del TSE (ver transitorio II de ley n°9544).

-El porcentaje de cotización que corresponden a 20 años de pertenencia al régimen es de un 66% del plazo total anterior (30 años), lo cual resulta en un porcentaje mayoritario, que sobrepasó la mitad y que resulta razonable atendiendo al plan de vida de quien ya pasó la Nombre3382 de sus años de servicio cotizando para un determinado régimen bajo unas determinadas condiciones.

-El Transitorio, en su versión anterior (ver dictamen de la Comisión del 27 de julio del 2017) establecía un plazo de 23 años y 6 meses de servicio para cobijarse, de forma escalonada, en la normativa anterior de pensiones.

-Según la prueba para mejor resolver, aportada por la Junta actual del Fondo de Pensiones y Jubilaciones del Poder Judicial, se indica que un incremento de 10 años de servicio albergaría a 2759 personas, y cuya razón de solvencia del fondo pasaría de un 86,29% a un 79,43%, bajando 7 puntos porcentuales, manteniéndose siempre el porcentaje dentro de lo razonable, el cual según se indicó ello es así siempre que el porcentaje se mantenga igual o por arriba de 70%.

-Atendiendo a criterios, más allá de los económico-financieros, sino del orden de los derechos sociales, esta sería la mayor cantidad de funcionarios posibles que el Fondo de Pensiones pudiera acoger con las condiciones de pensión anteriores a la reforma, y con ello, más favorables a la persona (principio pro personae, principio pro operario).

Finalmente, a diferencia de como se hace en el voto de mayoría, considero que los Tribunales Constitucionales deben resolver con base en el Derecho de la Constitución, sin ignorar las consecuencias de los fallos, pero tomando en consideración los efectos sobre otros derechos fundamentales. El tema de las consecuencias del fallo, es una materia de contenido impreciso, debe precisarse más en su contenido y en sus derivaciones en la misma sentencia. En este caso, si bien existe un tema importante respecto de las consecuencias de la decisión en la salud financiera del régimen jubilatorio, tal evaluación requiere un análisis más amplio y detallado, situación que desde mi perspectiva no se cumple en el voto de mayoría. Las consecuencias de una decisión no pueden eclipsar el análisis y tutela de otros derechos. En esa ponderación me inclino más en la preeminencia de los derechos reclamados que en las consecuencias de la decisión, sin ignorar, como lo he expuesto, que la decisión favorable a los recurrentes, no pone en peligro la salud financiera del fondo de pensiones del Poder Judicial. En el caso en examen, no sólo debe evaluarse la salud financiera del régimen, sino además, los efectos de la decisión legislativa que se cuestiona, en la esfera de los derechos fundamentales de los involucrados y en los principios democráticos de la institución donde laboran.

Nombre8518.-) Sobre el resto de vicios de procedimiento En el mismo sentido que el voto salvado a la resolución número 2018-5758, suscrito por el Magistrado Cruz Castro y otros magistrados, y pese a no haber participado el Magistrado Cruz en la votación que resolvió sobre alegatos concretos de violaciones de procedimiento legislativo en sentencia n°2021-11957, ni tampoco en la resolución que le dio curso a esta acción, n°2022-008712, se procede a ratificar los vicios de procedimiento que se consideraron allí existen en la ley impugnada n°9544.

“XXIII.- Voto salvado de los Magistrados Cruz Castro, Salazar Alvarado y Hernández Gutiérrez.

Redacta el Magistrado Salazar Alvarado; y, Al contrario del criterio de la Nombre3382 de la Sala, consideramos que el proyecto de ley denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo N° 19.922, presenta vicios de inconstitucionalidad, que invalidan el proyecto consultado, según las siguientes consideraciones:

ÚNICO.- Vicios en el procedimiento legislativo.

a.- Texto del proyecto de ley no consultado a la Corte Suprema de Justicia. Dentro de las dudas de constitucionalidad que plantean los consultantes, está la falta de consulta al Poder Judicial del texto sustitutivo aprobado en la sesión del 27 de julio de 2017 de la Comisión Especial. A juicio de los diputados y diputadas que plantean la consulta, ese proyecto de ley contiene una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial, lo que obliga a consultarlo a la Corte Suprema de Justicia, de conformidad con lo preceptuado en el artículo 167, de la Constitución Política. En concreto, aducen que el artículo 239, del proyecto de ley, crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la que define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le otorga. A dicha Junta, se le otorga independencia funcional y se le asigna una serie de competencias, tales como elevar el aporte obrero al Fondo de Pensiones, conocer solicitudes de jubilación, por citar algunas, con lo cual, a su entender, se produce una modificación en la estructura del Poder Judicial. De igual modo, al Consejo Superior del Poder Judicial, se le restan competencias, y, además, el artículo 240, del proyecto de ley, confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Por el contrario, aclaran que los textos sustitutivos anteriores sí fueron consultados a la Corte Suprema de Justicia, por lo que estiman contrario al Derecho de la Constitución que ello no se diera con respecto a este último texto.

Precisamente, a la base de la discusión, tal y como bien se afirma en el voto de mayoría, está la determinación de si, al tenor de lo dispuesto en el artículo 167, de la Constitución Política, el órgano legislativo estaba o no en la obligación de consultar el citado proyecto de ley al Poder Judicial, deber que, por lo demás, ha sido incorporado en los artículos 126 y 127, del Reglamento de la Asamblea Legislativa, en los cuales se estipula el procedimiento que ha de observarse al efecto. Del texto constitucional se colige, que la consulta obligatoria a la Corte Suprema de Justicia solo es tal si el proyecto de ley se refiere a la organización o funcionamiento del Poder Judicial. De modo, que el meollo del asunto está en lo que se ha de entender por “organización o funcionamiento del Poder Judicial”.

Al respecto, el voto de Nombre3382 sostiene, que cuando la Carta Política Fundamental hace referencia a la organización y funcionamiento del Poder Judicial, se refiere -únicamente- a la afectación de la función jurisdiccional, y no de la propiamente administrativa. En abono de esta posición, se citan las Sentencias N° 1998-5958 de las 14:54 del 19 de agosto de 1998, N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 y N° 2008-5179 de las 11:00 horas del 4 de abril de 2008. Asimismo, en relación con el tema concreto del Fondo de Pensiones y Jubilaciones del Poder Judicial y la obligación de la Asamblea Legislativa de consultar a la Corte Suprema de Justicia los proyectos de ley que versan sobre aquel, el voto de Nombre3382 cita las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, con base en las cuales concluye, que en esos casos, la Asamblea Legislativa no está obligada a consultar el proyecto de ley a la Corte Suprema de Justicia, en los términos dispuestos en el artículo 167, Constitucional. Sin embargo, a criterio de los suscritos, tal interpretación del numeral constitucional, restringida únicamente a la función jurisdiccional, no se deriva ni del texto de la Carta Fundamental, ni de la jurisprudencia de esta Sala. En efecto, en cuanto a los precedentes de cita, es de destacar, que con respecto a las tres primeras sentencias, de ellas no se infiere lo que, en su voto, sostiene la mayoría. Así, en la Sentencia N° 1998-5958 de las 14:54 del 19 de agosto de 1998, lo que se desarrolla es solo el término “funcionamiento” -del binomio “organización o funcionamiento”- del Poder Judicial, sin referirse al tema de la organización de ese Poder de la República. En concreto, en la cita que se hace de ese voto, la Sala claramente indica que “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados” (el destacado es agregado), con lo cual se hace evidente, que el tema de la organización -que es el que aquí interesa- no fue desarrollado en dicha resolución, simplemente, porque el caso no lo requería, ya que se trató de la consulta legislativa preceptiva de constitucionalidad sobre el proyecto de “Adición de un nuevo Capítulo IV, denominado “Del recurso de hábeas data”, al Título III de la Ley de la Jurisdicción Constitucional, ley Nº 7185 del 19 de octubre de 1989”, que se tramitó en el expediente legislativo número 12.827, donde el tema en discusión era que la reforma afectaba la función jurisdiccional del Poder Judicial. Que esto es así, se desprende del propio texto de la sentencia que no se cita con la debida amplitud en el voto de mayoría: “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados. Y, en Costa Rica, la jurisdicción constitucional es indudablemente judicial, desde que tanto la Constitución Política como la Ley de la Jurisdicción Constitucional integran a esta Sala dentro de la estructura de la Corte”. Hecha la cita en su contexto, no se puede inferir, que la Sala haya restringido el binomio “organización o funcionamiento” meramente a lo jurisdiccional, sino que, en el caso de cita, este Tribunal Constitucional únicamente se refirió al aspecto de la función jurisdiccional del Poder Judicial, porque era el tema en discusión, sin hacer exclusión, ni referirse al tópico de la organización administrativa de dicho Poder de la República. Lo mismo cabe decir en relación con la Sentencia N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 a la que alude la mayoría. Se trata de una consulta legislativa facultativa de constitucionalidad respecto del proyecto de ley de “Modificación del Código Penal, Ley número 4573 y sus reformas”, expediente legislativo número 14.158. Nuevamente, se trató de una reforma que afectaba directamente la función jurisdiccional del Poder Judicial, no su organización administrativa. De allí que, en este caso, tampoco la Sala desarrolló este último tema, por resultar ocioso. Es por ello, que la discusión de fondo se centró y agotó en los aspectos de la función jurisdiccional del Poder Judicial: “…dicha consulta [la del artículo 167, de la Constitución Política] resulta obligatoria cuando lo discutido en la Asamblea es un proyecto de ley que pretenda establecer reglas de funcionamiento y organización del Poder Judicial, entendido esto no apenas como las disposiciones que regulen la creación de tribunales de justicia o competencias jurisdiccionales, sino incluso aquellas que dispongan sobre modo de ejercicio de dichas competencias, es decir, sobre la forma en que el Poder Judicial lleva a cabo su función jurisdiccional, incluidas normas propiamente procesales” (el resaltado no pertenece al original). Ciertamente, es evidente que lo expresado se limitó a examinar lo relativo al ejercicio de las competencias jurisdiccionales de los Tribunales de Justicia, toda vez que era sobre ese aspecto en particular que versó la consulta. Pero, la Sala no dijo que este sea el único extremo en que la consulta del numeral 167, de la Constitución Política, sea obligatoria, sino que lo que dijo es que, en ese caso, es obligatoria, sin referirse a otros casos en que también lo sea, como lo es lo referente a la organización y competencias administrativas del Poder Judicial.

Comentario separado merece la Sentencia N° 2008-5179 de las 11:00 horas del 4 de abril de 2008, puesto que aquí, a diferencia de la lectura que hace la mayoría, sí se establece que lo relativo a la organización administrativa del Poder Judicial cae dentro de la consulta obligatoria que estipula el citado artículo 167, Constitucional. En esa ocasión, este Tribunal Constitucional, como intérprete máximo de la Constitución Política, al referirse a los términos de “organización o funcionamiento” del Poder Judicial, contenidos en el artículo 167, de la Carta Política, como condición de la consulta obligatoria a ese Poder de la República por parte de la Asamblea Legislativa, consideró “…que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas…” (el resaltado es agregado). No se trata de un cambio de criterio de este Tribunal en la materia, sino, dentro de la línea jurisprudencial ya trazada, de una mayor determinación de los términos “organización o funcionamiento” que emplea el artículo 167, de la Constitución Política, para establecer los casos en los cuales los proyectos de ley que estén en la corriente legislativa deben ser consultados -obligatoriamente- a la Corte Suprema de Justicia. Esta sentencia no amplió, en modo alguno, los supuestos de consulta obligatoria; por el contrario, lo que hizo fue definirlos de una manera más amplia y precisa. Por ello, allí claramente se determinó, que en esos casos, pero solo en estos, la consulta es obligatoria. Así se entiende que, en esa misma sentencia, se expresara: “[c]abe apuntar que tal exégesis se impone en aras de mantener el equilibrio de poderes, sin privilegiar a uno u otro órgano constitucional, de manera que cada uno pueda ejercer sus funciones de manera independiente y separada como lo impone el propio texto constitucional (artículo 9° de la Constitución). En otros términos, la precisión de tales conceptos evita cualquier colisión, extralimitación o exacerbación de las respectivas funciones, en aras de mantener el equilibrio y la contención de los poderes, por cuanto, el fin de la norma lo constituye no sólo la independencia funcional y la autonomía presupuestaria del Poder Judicial, sino, también, el equilibrio entre el Poder Legislativo y Judicial. En efecto, una interpretación amplia de los términos empleados por el constituyente originario, por parte de la Corte Plena, podría conducir a que determinadas materias que, en sentido estricto no están referidas a la organización y funcionamiento del Poder Judicial, ameriten, injustificadamente, de una ley reforzada, con lo cual se ralentiza o entorpece, innecesariamente, la función legislativa. De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equívocamente, que el proyecto no versa sobre organización y funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial”. De lo anterior se colige, que todo lo relativo a la materia de organización y funcionamiento del Poder Judicial, pero solo y estrictamente esto -para guardar el equilibrio entre independencia funcional y autonomía presupuestaria del Poder Judicial, por un lado, y la libertad de configuración del legislador ordinario, por otro-, es lo que obliga al órgano legislativo a realizar la consulta ante la Corte Suprema de Justicia, sin que se pueda extender a otras materias. En este sentido, no hay la menor duda, de que la Sala Constitucional ha entendido que lo relativo a la organización administrativa del Poder Judicial, y no solo lo concerniente a la afectación, directa o indirecta, de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167, de la Constitución Política. Y no podría ser de otra manera, ya que la afectación o modificación de la organización administrativa del Poder Judicial en general -y no solo lo atinente a los órganos jurisdiccionales o judiciales en sentido estricto- también repercute en el servicio de Administración de Justicia que presta, y en la independencia que constitucionalmente se garantiza a ese Poder y a los jueces como funcionarios llamados a impartir justicia.

Por otra parte, las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, que se citan en el voto de Nombre3382 como fundamento para concluir que los proyectos de ley relativos al tema específico del Fondo de Pensiones y Jubilaciones del Poder Judicial no necesitan ser consultados a la Corte Suprema de Justicia, tampoco tienen la virtud de dar el fundamento que, en relación con esta materia, afirma que tienen la Nombre3382 de la Sala.

En la primera de dichas sentencias, la Sala conoció unas acciones de inconstitucionalidad acumuladas planteadas contra la Ley Marco de Pensiones, Ley N° 7302 de 8 de julio de 1992. Este Tribunal, en aquella ocasión, lo único que afirmó es que, en el caso de la Ley Marco de Pensiones, no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley respectivo, por la sencilla razón, de que dicho proyecto no afecta a los servidores judiciales; y, por lo tanto, no cae dentro de lo preceptuado por el artículo 167, de la Constitución Política. Asimismo, en el voto de cita, se indica que el funcionamiento está referido a la función jurisdiccional, pero no hace alusión alguna al tema de la organización del Poder Judicial, que es de lo que aquí se trata.

De igual modo, en la Sentencia N° 2002-4258 de las 9:40 del 10 de mayo de 2002, la Sala conoció de acciones de inconstitucionalidad acumuladas interpuestas contra el artículo 4, de la Ley N° 7605, de 2 de mayo de 1996, en cuanto reforma los artículos 224, 226 y 236, incisos 1) y 2), de la Ley Orgánica del Poder Judicial, N° 7333 de 5 de mayo de 1993, así como, por conexidad y consecuencia, contra el artículo 33, inciso a), del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. La Sala descartó, entre otros temas alegados, la violación al artículo 167, de la Constitución Política, por el hecho de que la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho al respecto en la Sentencia N° 1995-3063 de las 15:30 del 13 de junio de 1995, que, como ya se dijo, solo se refirió al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. De modo tal, que, a diferencia del criterio externado por la mayoría, dichas sentencias no excluyen la materia relativa al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, sino solo en el tanto y en el cuanto el respectivo proyecto de ley no tenga relación directa con la “organización o funcionamiento del Poder Judicial”, temas que, ciertamente, no estaban involucrados en las acciones que se plantearon ante esta Sala y que fueron resueltas en las sentencias de cita. Con ello, no se excluye la materia concerniente al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, como lo entiende la mayoría, ya que este tema, en sí mismo considerado, no está excluido de dicha consulta, sino que ello dependerá de si el proyecto de ley en cuestión contiene o no regulaciones relativas a la organización o el funcionamiento de ese Poder, aspecto que habrá que determinar de previo en cada caso para así establecer la obligatoriedad o no de dicha consulta.

En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establecida en el artículo 9, y reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar, en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167, Constitucional. En este sentido, a criterio de los suscritos, es un grave error conceptual confundir o asimilar la función jurisdiccional en sentido amplio, con inclusión de la función auxiliar a la jurisdiccional, con la función estrictamente administrativa. La función jurisdiccional es una función especial y diferente a la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Una cosa es la Administración de Justicia y otra muy distinta la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa, aun cuando los jueces y los auxiliares judiciales sean también funcionarios públicos. Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la independencia, en su doble vertiente, tanto de Poder Judicial en sí mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. Basta para comprender la delicada tarea que realizan los jueces de la República, con la colaboración de los funcionarios que los asisten y los auxilian en sus funciones y sin los cuales aquellos no podrían ejercer debidamente su función, con tener presente que ellos deciden los casos sometidos a su conocimiento con fuerza de cosa juzgada; es decir, deciden cuál es la verdad con fuerza de autoridad de ley en cada caso, sin que su decisión, una vez alcanzada esa condición, pueda ser, en principio, revisada. Esto implica una función sumamente delicada y una gran responsabilidad, la cual no podría llevarse a cabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no pude haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De allí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios.

Existe consenso en la doctrina administrativa, en que la función jurisdiccional es, si no la más compleja, una de las más complejas y difíciles de llevar a cabo en el Estado Constitucional de Derecho en las sociedades modernas. Esto por cuanto, a diferencia de lo que se decida en los Poderes Legislativo y Ejecutivo, las decisiones del Poder Judicial, en ejercicio de la función jurisdiccional, son inapelables; es decir, tiene fuerza o autoridad de cosa juzgada. Esto no solo implica una gran responsabilidad, sino la necesidad de contar con una serie de principios y garantías que permitan el adecuado ejercicio de esa función. En este contexto, la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de esa delicada función. Corresponde al juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Pero esta independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función. Por ello, en materia de remuneración y jubilación, no puede equipararse con el sector administrativo. La necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica, en torno al tema objeto de esta consulta, que la jubilación o pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo. Lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad; y, por ende, en la paz social. En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho, es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia. La independencia judicial es una garantía institucional establecida a nivel constitucional, sea, en el rango más elevado de la jerarquía de las normas, al punto que también se encuentra estipulada como un Derecho Humano. En efecto, la Convención Americana de Derechos Humanos ha establecido, como derecho humano, el ser oído por un juez imparcial. Al respecto, en el artículo 8.1, se establece:

“Artículo 8. Garantías Judiciales.

1. Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazorazonable, por un juez o tribunal competente, independiente e imparcial, establecido conanterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contraella, o para la determinación de sus derechos y obligaciones de orden civil, laboral, fiscal ode cualquier otro carácter”. (La negrita no es del original).

La independencia judicial constituye un principio fundamental dentro del Estado Constitucional de Derecho. Pero esa independencia, para ser real, no solo debe ser organizativa y funcional, sino también económica. Esa independencia económica está también garantizada en el artículo 177, de la Constitución Política, al establecer que el proyecto de presupuesto ordinario deberá asignar al Poder Judicial al menos un 6% de los ingresos ordinarios calculados para el año económico. La intención del Constituyente originario, con la promulgación de esta norma -que establece un egreso constitucional atado-, es garantizar, entre otras cosas, que los jueces y el resto del personal auxiliar de la justicia, tuvieran una retribución adecuada a la complejidad y dificultad de la función jurisdiccional, lo que implica, una jubilación o pensión adecuada también a ello y a las prohibiciones especiales que dicha función implica para los servidores judiciales, las cuales no pesan sobre los servidores públicos de los otros Poderes del Estado. La norma constitucional previene que la asignación presupuestaria pueda convertirse en un instrumento de intervención política en la función jurisdiccional. Pero esto debe verse en toda su amplitud, ya que los salarios de los juzgadores y del personal auxiliar, así como el régimen de pensiones y jubilaciones que les es aplicable, tiene que guardar estricta relación con la labor que realizan, so pena de tornar nugatorio el principio de independencia judicial. De allí, que la independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Así las cosas, una forma de garantizar la independencia del Poder Judicial, de los Jueces de la República y de los auxiliares de justicia, es con una jubilación o pensión digna, acorde con sus funciones constitucionales.

En la exposición de motivos que dio lugar a la promulgación de la Ley de Jubilaciones y Pensiones Judiciales, como adición a la Ley Orgánica del Poder Judicial, el diputado Teodoro Picado Michalski, en fecha 2 de junio de 1938, expresó:

“Es el Poder Judicial uno de los tres principales sostenes en que descansa el Gobierno de la República; y es a sus servidores, a los que por ejercer muy delicadas funciones para la vida misma de la Sociedad, se exige, más que a otros empleados, mayor ilustración, probidad y trabajo. Y es por eso, seguramente, que al pedirse a los servidores judiciales una completa dedicación, durante largos años, a la importantísima tarea de administrar justicia, -con el noble fin de asegurarles su subsistencia al llegar a la vejez o cuando por padecimientos físicos ya no puedan trabajar,- que se ha venido instando ante el Congreso, en distintos períodos legislativos, la promulgación de una ley que contemple esa difícil situación de los funcionarios y empleados del Poder Judicial”.

No se debe soslayar, que las personas juzgadoras y el funcionariado judicial en general, está sometido a un régimen de prohibiciones y de incompatibilidades de mucha mayor intensidad y rigurosidad que el régimen de incompatibilidades y prohibiciones que afecta al resto de los funcionarios públicos, lo que lo hace de una naturaleza completamente distinta. Las regulaciones que se aplican al funcionariado administrativo de todo el sector público no pueden aplicarse también a los funcionarios judiciales. En este sentido, los principios de razonabilidad y proporcionalidad constitucional obligan a que ese régimen de incompatibilidades y prohibiciones asimétrico, que responde a la propia naturaleza de las funciones jurisdiccional y administrativa, deba tener una compensación económica, tanto salarial como al término de la relación laboral. Pero también el principio de igualdad, recogido en el artículo 33, de la Constitución Política, implica la prohibición de tratar como iguales a los desiguales, porque de ello se deriva una discriminación contraria al Derecho de la Constitución. En el caso de los jueces y funcionarios judiciales, existen condiciones objetivas, razonables, justificadas y fundadas en la propia naturaleza de la función jurisdiccional que se ejerce, para darles un trato diferente al del resto de los servidores públicos de las distintas administraciones, con lo cual, lejos de incurrirse en una discriminación, se tutela el principio de igualdad regulado en el citado numeral constitucional. Lo cual quiere decir, que si existe un régimen jubilatorio diferenciado para el sector jurisdiccional, ello no obedece a una decisión arbitraria, subjetiva o antojadiza del legislador, sino a la propia naturaleza específica y diferente de la función jurisdiccional que, objetiva y constitucionalmente, lo justifican.

Lo anterior no solo se deriva de nuestra propia Constitución Política y de los valores y principios que la informan, sino que está contenido en diversos instrumentos internacionales. Así, por ejemplo, en los “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11, se dice lo siguiente:

“11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas”. (El resaltado no es del original).

Con lo cual, las Naciones Unidas recomienda a todos los países del mundo, que las normas jurídicas deben garantizar a los jueces una remuneración, pensiones, condición de servicios y de jubilación adecuadas y proporcionadas a la complejidad y dificultad de la función jurisdiccional que ejercen. Lo cual debe entenderse, también, extensivo a los funcionarios auxiliares de la justicia, pues, de otro modo, tal independencia sería imposible.

De igual modo, en la “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, en aras de lograr una independencia real y efectiva del Poder Judicial y de los funcionarios que administran justicia, así como de sus colaboradores y auxiliares, en los párrafos 6.1 y 6.4, se establece lo siguiente:

“6.1 El ejercicio profesional de las funciones judiciales da derecho a la remuneración del / de la juez, cuyo nivel será determinado con el fin de preservarle de las presiones destinadas a influir en sus resolucionesy en general en su actuación jurisdiccional, alterando de ese modo su independencia e imparcialidad.

6.4 En particular, el estatuto asegurará al / a la juez que haya alcanzado la edad legal de cese en sus funciones, después de desarrollarlas a título profesional durante un período determinado, el pago de una pensión de jubilación cuyo importe se aproximará en lo posible al de su última retribución de actividad judicial”. (El destacado no es del original).

El citado instrumento pretende lograr un Poder Judicial real y efectivamente independiente, lo que es una garantía a favor de la ciudadanía. De modo tal, que la adecuada remuneración y pensión de los jueces y de los auxiliares de justicia, en los términos allí expresados, constituye la debida y razonable consecuencia del ejercicio de una función delicada y de mucha dificultad y responsabilidad.

También, el “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32, se hace eco de los mismos principios ya citados, al estatuir:

“Art. 32. Remuneración.

Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”. (El destacado no es del original).

Y, en el artículo 33, dispone:

“Art. 33. Seguridad Social.

El Estado debe ofrecer a los jueces su acceso a un sistema de seguridad social, garantizando que recibirán, al concluir sus años de servicio por jubilación, enfermedad u otras contingencias legalmente previstas o en caso de daños personales, familiares o patrimoniales derivados del ejercicio del cargo, una pensión digna o una indemnización adecuada”. (El destacado no es del original).

Debe tenerse presente, que la jubilación y la pensión forman parte de los Derechos Económicos, Sociales y Prestacionales contenidos en el Pacto Internacional de Derechos Económicos, Sociales y Culturales, adoptado y abierto a la firma, ratificación y adhesión por la Asamblea General de las Naciones Unidad, en su resolución 2200 A (XXI), de 16 de diciembre de 1966. Estas regulaciones también han sido acogidas en el Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces, dicho Consejo recomendó:

“…es generalmente importante (y especialmente en el caso de las nuevas democracias) fijar disposiciones legales específicas que garanticen unos salarios de jueces protegidos contra reducciones y que aseguren de facto “el aumento de los salarios en función del coste de vida”.

Estas recomendaciones son de total aplicación al tema de las pensiones y jubilaciones de los jueces y de los servidores judiciales en general, ya que están íntimamente relacionadas con el principio de independencia del Poder Judicial, tal y como ya ha quedado expuesto.

Pero no solo en el ámbito internacional se ha regulado esta materia en los términos dichos, sino que también ha sido objeto de regulación a lo interno del Poder Judicial, con consideraciones semejantes a las dichas.

En efecto, la Corte Plena aprobó el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces, en sus diferentes facetas. En el artículo 24, relativo a las condiciones materiales de la independencia judicial, se establece que el Estado debe garantizar “la independencia económica del Poder Judicial, mediante la asignación del presupuesto adecuado para cubrir sus necesidades y a través del desembolso oportuno de las partidas presupuestarias”, lo cual está íntimamente relacionado con lo dispuesto en el ya citado artículo 177, de la Constitución Política, en cuanto a la asignación constitucional de un mínimo del Presupuesto Ordinario para el Poder Judicial, como manifestación de esa independencia.

Asimismo, el artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez: “Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”. Como ya se explicó, esta especial regulación tiene su fundamento en la independencia del Poder Judicial, lo cual debe ser también extendido al tema de la pensión o jubilación de los jueces y del personal auxiliar de la justicia, pues de otro modo, el principio de independencia judicial no sería posible.

El respeto a la independencia judicial, que es uno de los fines que persigue el artículo 167, Constitucional, también fue objeto de regulación expresa en el Estatuto, artículo 20, al disponer que “[l]os otros Poderes del Estado y, en general, todas las autoridades, instituciones y organismos nacionales o internacionales, deben respetar y hacer efectiva la independencia de la judicatura”.Y, precisamente, la intromisión inconsulta del órgano legislativo en la organización y funcionamiento del Poder Judicial, sea creando, modificando o suprimiendo órganos o competencias, judiciales o administrativos, es constitucionalmente inadmisible, por constituir esto una flagrante violación al principio de independencia judicial.

Por último, cabe indicar, que la independencia del Poder Judicial es un principio que tiene una naturaleza particular y específica, distinta al de los otros Poderes del Estado, ya que consiste en un escudo de protección contra la intromisión del poder político, de lo cual no están protegidos los otros Poderes del Estado. Esto, debido a que el Poder Judicial es el que administra justicia y esta debe ser imparcial y libre de cualquier presión externa. Y, en este punto, la presión económica, bien por el salario o estipendio, bien por el monto y condiciones de la jubilación o pensión de los jueces y demás auxiliares de la justicia, juega un papel trascendente en la consecución de una independencia real y efectiva del Poder Judicial.

Con base en las consideraciones precedentes, corresponde, entonces, examinar el contenido del proyecto de ley en consulta con el fin de determinar si este afecta o no la organización o el funcionamiento del Poder Judicial, en los términos expresados.

En este orden de ideas, los consultantes, según se dijo supra, alegan que el artículo 239, del proyecto de ley en cuestión, crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la cual define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le otorga, órgano al que se le otorga independencia funcional y se le asigna una serie de competencias, entre otras, elevar el aporte obrero al Fondo de Pensiones y conocer de las solicitudes de jubilación, lo cual implica una modificación en la estructura del Poder Judicial. De igual modo, se restan competencias al Consejo Superior del Poder Judicial; y, además, en el artículo 240, del proyecto de ley, se confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Los mencionados numerales del proyecto disponen:

“Artículo 239- Se crea la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (Conassif) y la Superintendencia de Pensiones (Supén).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley.

Artículo 240- La Junta Administradora estará conformada por tres miembros que serán electos democráticamente por el colectivo judicial, así como por tres miembros designados por la Corte Plena, con perspectiva de género en ambos casos. Cada integrante titular tendrá un suplente para que lo sustituyan en sus ausencias, quien deberá cumplir con los mismos requisitos del titular.

Quienes integran la Junta durarán en sus cargos cinco años, luego de los cuales podrán ser reelectos, todo conforme con la reglamentación que al efecto habrá de dictarse por la Corte Plena, previa audiencia conferida a las organizaciones gremiales del Poder Judicial.

En la primera sesión ordinaria, la Junta designará a la persona que habrá de presidir las sesiones, esta designación se hará por un espacio temporal de un año, debiendo alternarse cada año entre los representantes del colectivo judicial y de la Corte Plena. Además, se designará a quien le sustituya en caso de ausencia. La persona que preside tendrá voto calificado en caso de empate.

Los miembros de la Junta Administradora no devengarán ninguna dieta pero sí contarán con los permisos necesarios para atender las sesiones. Para ser miembro de la Junta se deberá cumplir con los siguientes requisitos, los cuales deberán ser documentados y demostrados ante la Superintendencia de Pensiones (Supén):

• a)Contar con título universitario en carreras afines a la administración de un fondo de pensiones y estar incorporado al colegio profesional respectivo, cuando así corresponda.
• b)Ser de reconocida y probada honorabilidad.
• c)Contar con conocimientos y al menos cinco años de experiencia en actividades profesionales o gerenciales relevantes para la administración de un fondo de pensiones, de manera que todos los miembros de este órgano posean habilidades, competencias y conocimientos que les permitan realizar el análisis de los riesgos que afectan a la Junta y al Fondo.

No podrán ser miembros de la Junta:

• 1)Las personas contra quienes en los últimos diez años haya recaído sentencia judicial penal condenatoria por la comisión de un delito doloso.
• 2)Las personas que en los últimos diez años hayan sido inhabilitadas para ejercer un cargo de administración o dirección en la Administración Pública o en las entidades supervisadas por la Superintendencia General de Entidades Financieras (Sugef), la Superintendencia General de Seguros (Sugese), la Superintendencia de Valores (Sugeval) y la Superintendencia de Pensiones (Supén).

La integración del órgano deberá garantizar la representación paritaria de ambos sexos, asegurando que la diferencia entre el total de hombres y mujeres no sea superior a uno”.

De la lectura del artículo 239, transcrito, es claro que en él se crea un nuevo órgano dentro de la estructura del Poder Judicial, denominado “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial”, al que se le confiere completa independencia funcional, técnica y administrativa, para ejercer las facultades, competencias y atribuciones que le otorga la ley, enumeradas en los incisos a), b), c), d), e), f), g), h) e i), del propio artículo, para el cumplimiento de sus cometidos, para lo cual contará con personalidad jurídica instrumental. De tal manera, que se crea, ex novo, un órgano administrativo y se adscribe dentro de la estructura del Poder Judicial, con competencias y atribuciones determinadas; y, concomitantemente, se sustraen y eliminan competencias y atribuciones previamente otorgadas -por ley formal- al Consejo Superior del Poder Judicial. Esta sola circunstancia, por las razones dichas, obliga al órgano legislativo a consultar -necesariamente- el proyecto al Poder Judicial, en los términos dispuestos en el artículo 167, de la Constitución Política, ya que ello modifica la organización administrativa del Poder Judicial, con la creación de un nuevo órgano administrativo, y la supresión de competencias del Consejo Superior en favor de ese órgano de nueva creación, lo que, claramente, afecta la independencia de ese Poder de la República.

Lo mismo cabe decir en relación con el artículo 240, del proyecto de ley consultado, en el tanto en él se abordan temas propios de la organización administrativa del Poder Judicial, en torno a la conformación y designación de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, su duración en los cargos, la designación de la persona que ha de presidirla y los requisitos para poder ser miembro de esa Junta, entre otros. Es de destacar, que aun cuando la Corte Plena está facultada, por la Ley Orgánica del Poder Judicial, para dictar los reglamentos internos que sean necesarios para el buen funcionamiento del Poder Judicial, el hecho de que, por medio del proyecto de ley en consulta, se le imponga la obligación de reglamentar lo relativo a la duración en los cargos de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, sin que el texto sustitutivo del proyecto, que fue finalmente aprobado en Primer Debate, haya sido consultado a la Corte Suprema de Justicia, implica una grave intromisión en las competencias del órgano máxima jerarquía del Poder Judicial, con afectación de la organización de ese Poder de la República, en contravención de la consulta obligatoria preceptuada en el artículo 167, de la Constitución Política; y, por ende, una lesión a la independencia judicial. A simple vista, la citada normativa, ahora consultada por los representantes del pueblo, le quita, al Presidente de la Corte Suprema de Justicia, y por consiguiente, al Presidente del Consejo Superior del Poder Judicial, la competencia que le da la Ley Orgánica del Poder Judicial, de administrar el Fondo de Pensiones y Jubilaciones del Poder Judicial, precisamente de acuerdo con las políticas de inversión establecidas por la Corte Plena, tal y como actualmente está contemplado en el artículo 81, inciso 12.

No obstante lo anterior, el reparo de los consultantes es que el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, no fue consultado a la Corte Suprema de Justicia, a pesar de contener una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial. Sin embargo, tal y como se afirma en el voto de mayoría, a folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017, por la Comisión Especial, por oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, con base en lo cual, la Corte Suprema de Justicia emitió su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según consta a folios 2759 a 2807 del expediente legislativo. Esto significa, entonces, que el Poder Judicial sí fue consultado y externó su criterio en relación con el texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, lo que se produjo incluso antes de que dicho texto fuera conocido por el Plenario.

A pesar de ello, dicho texto no fue el que se aprobó en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance N° 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, ya que el que se aprobó en Primer Debate es un texto sustitutivo introducido por moción vía artículo 137, del Reglamento de la Asamblea Legislativa. Este último texto no fue consultado a la Corte Suprema de Justicia, tal y como correspondía, según lo analizado supra, al tenor de lo dispuesto en el artículo 167, de la Constitución Política.

Este punto, si bien no fue alegado de manera expresa por los consultantes, no es óbice para que la Sala, de oficio, entre a examinarlo, ya que se trata de un vicio esencial en el procedimiento legislativo en la tramitación del proyecto de ley consultado. Al respecto, cabe destacar, que este Tribunal Constitucional tiene competencia para conocer y pronunciarse -de oficio- sobre cualquier aspecto de constitucionalidad que detecte al revisar un expediente legislativo en el que se tramite un determinado proyecto de ley, en vía de consulta legislativa de constitucionalidad, sin importar si ese determinado aspecto no fue objeto de consulta. Esto se deriva del texto del artículo 101, de la Ley de la Jurisdicción Constitucional, que indica:

“Artículo 101.- La Sala evacuará la consulta dentro del mes siguiente a su recibo, y, al hacerlo, dictaminará sobre los aspectos y motivos consultados o sobre cualesquiera otros que considere relevantes desde el punto de vista constitucional.

El dictamen de la Sala sólo será vinculante en cuanto establezca la existencia de trámites inconstitucionales del proyecto consultado.

En todo caso, el dictamen no precluye la posibilidad de que posteriormente la norma o normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad”. (El destacado no es del original).

Al respecto, también la doctrina nacional ha expresado:

“En lo relativo al contenido del parecer emitido por la Sala Constitucional, no existe un congruencia absoluta y rígida entre los motivos o aspectos consultados y la opinión vertida por la Sala, puesto que, la Sala Constitucional bien puede, ex officio, emitir su parecer “sobre cualesquiera otros que considere relevantes desde el punto de vista constitucional” (artículo 101, párrafo 1°, LJC), los que incluyen, desde luego, tanto los vicios formales del procedimiento legislativo no consultados como cuestiones sustanciales o de fondo contenidas en el proyecto y no observadas por los consultantes”. (Jinesta Lobo, Ernesto. Derecho Procesal Constitucional, Primera Edición, Editorial Guayacán, San José, Costa Rica, pág. 334).

De manera, que, si como en este caso, la Sala, al examinar el expediente legislativo, determina que en el procedimiento de formación de la ley de un proyecto se incurrió en algún vicio esencial, o si su contenido resulta contrario al Derecho de la Constitución, bien puede pronunciarse de oficio al respecto, no solo porque la ley que regula su funcionamiento así lo contempla, sino también por resultar ello razonable y conforme con una sana economía procesal, pues no tendría sentido que la Sala pasara por alto la inconstitucionalidad detectada en el proyecto de ley por el solo hecho de que los consultantes no la hayan advertido, a la espera de que luego, por vía de acción de inconstitucionalidad sea reclamada y tenga que pronunciarse al respecto, con la correspondiente declaratoria de inconstitucionalidad de una ley ya vigente, con las consecuencias perjudiciales que ello podría implicar para el ordenamiento jurídico. En este sentido, sería absurdo permitir la aprobación legislativa de una ley que contiene una inconstitucionalidad, sea en el trámite legislativo o en la normativa de fondo, que a la postre tendrá que ser declarada. Máxime si se trata, como en este caso, de un vicio en la tramitación del proyecto consultado, que resulta vinculante para el órgano legislativo. Por ello, el vicio detectado en el procedimiento legislativo del proyecto de “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo número 19.922, por la omisión de consultar a la Corte Suprema de Justicia el texto sustitutivo aprobado en Primer Debate, debe ser declarado de oficio, toda vez que esto viola lo dispuesto en el artículo 167, de la Constitución Política, al afectar la organización administrativa del Poder Judicial, por la creación de un nuevo órgano administrativo dentro de su estructura, otorgarle competencias sustanciales en materia de pensiones y jubilaciones; y, a la vez, suprimir competencias otorgadas previamente por ley al Consejo Superior del Poder Judicial (artículos 239 y 240 del proyecto).

Esta Sala, en abono de lo anterior, en la Sentencia N° 2001-13273, de las 11:44 horas del 21 de diciembre de 2001, al evacuar una consulta legislativa de constitucionalidad sobre un proyecto de ley de reforma al Código Penal, en cuanto modifica aspectos relativos a la organización o funcionamiento -meramente administrativa- del Archivo Judicial, sostuvo, por unanimidad, que:

“De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial. A pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia (al menos la misma no consta en la copia certificada del expediente remitida por el Presidente del Directorio), sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que estima la Sala que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia funcional reconocida por el constituyente al Poder Judicial, y en ese sentido debe entenderse que el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado”. (El resaltado es agregado).

Nótese por lo dicho, que el vicio apuntado no se subsanaría aun cuando, en segundo debate, el proyecto sea aprobado por Nombre3382 calificada, pues esto solo sería así si se tratase de la aprobación de un texto de obligada consulta al Poder Judicial, por afectar su organización, estructura y funcionamiento -como en este caso-, y, una vez consultado a la Corte Suprema de Justicia, el órgano legislativo persistiera en aprobarlo apartándose del criterio técnico del órgano judicial. Pero de lo que aquí se trata, es de la aprobación -en Primer Debate- de un texto inconsulto, en contravención de lo preceptuado en el artículo 167, de la Constitución Política, vicio de procedimiento que resulta insalvable e insubsanable. Esto por cuanto, si bien es cierto, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, fue consultado a la Corte Suprema de Justicia, este texto no fue el que, finalmente, se aprobó en Primer Debate, sino un nuevo texto sustitutivo que, de previo, no fue consultado, no obstante tener relación directa con la organización, estructura y funcionamiento del Poder Judicial, según ha quedado expuesto. Y aún más, si bien el anterior texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 sí fue consultado a la Corte, al haber esta mostrado disconformidad con el texto, hacía obligada una votación calificada por el Pleno, al tenor del artículo 167, de la Carta Fundamental, lo que tampoco se hizo así.

La Corte Plena, en Sesión N° 27, del 7 de agosto de 2017, Artículo XXX, al evacuar la consulta a la Asamblea Legislativa sobre el Dictamen Afirmativo de Nombre3382, aprobado por la citada Comisión Especial, dispuso:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aun y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundaría en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Tomando en cuenta las observaciones planteadas al Proyecto de Ley tramitado bajo el expediente 19922 (20035), las cuales encuentran apego y sustento en el estudio actuarial realizado por el IICE y con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la Nombre3382 calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 08 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalar la incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Nombre3956, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial”. (La negrita no es del original).

La parte final, del citado artículo constitucional (167), expresa literalmente que “para apartarse del criterio de ésta [La Corte], se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea Legislativa”; y, dicho texto final, -no consultado en todo caso- se aprobó por la Asamblea Legislativa el 30 de octubre de 2017, con solo treinta y un votos (folios 4000 y 4173 del expediente legislativo).

b.- Falta de publicidad del texto sustitutivo aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016. Del estudio del iter legislativo, ha quedado establecido, que el texto sustitutivo del proyecto de ley en consulta, aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016, no fue publicado, tal y como lo plantean los diputados consultantes y quedó debidamente acreditado por la prueba rendida por el Director Ejecutivo de la Asamblea Legislativa el 12 de marzo de 2018. Por otra parte, de conformidad con las reglas fijadas por el procedimiento especial aprobado por la Asamblea Legislativa para el expediente número 19.922, en Sesión Ordinaria N° 37 del 30 de junio de 2016, con base en lo dispuesto en el artículo 208, bis, del Reglamento de la Asamblea Legislativa, esa publicación era obligatoria, lo cual se desprende claramente del inciso h, del punto 2, “Mociones de Fondo”, del procedimiento en cuestión, que a la letra dice:

“h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto…”. (El resaltado no es del original).

La Nombre3382 de la Sala estima que esa falta de publicidad -hecho sobre el que no hay discusión- no afecta el trámite del proyecto de ley; y, por ende, no constituye un vicio esencial del procedimiento, toda vez que, en definitiva, ese no fue el texto que aprobó la Comisión Especial el 27 de julio de 2017, texto sustitutivo, este último, que sí fue publicado en el Alcance N° 189 de la Gaceta Digital N° 147 del 4 de agosto de 2017.

Sin embargo, a juicio de los suscritos, tal razonamiento no es de recibo; esto por cuanto, en primer lugar, las reglas que acordó el Plenario Legislativo para la tramitación por procedimiento especial del proyecto de ley en consulta, vía artículo 208, bis, del Reglamento Legislativo, resultan de obligado y estricto cumplimiento, habida cuenta de que se trata de un procedimiento mucho más restrictivo que el ordinario, donde, de modo particular, deben observarse los principios democrático y de publicidad. Además, independientemente de que el texto en cuestión fuese o no el que, finalmente, fue aprobado por Comisión Especial el 27 de julio de 2017 -que sí fue publicado-, la falta de publicación es un vicio esencial en sí mismo considerado, por lo que el hecho de que, con posterioridad, dicho texto fuera sustituido por otro que sí se publicó, no tiene la virtud de subsanar el vicio apuntado.

Lo anterior ya ha sido sostenido por esta Sala, al evacuar las Consultas Legislativas Facultativas de Constitucionalidad presentadas con respecto a la aprobación del proyecto de ley denominado “Ley de Solidaridad Tributaria”, que se tramitó en el expediente legislativo N° 18.261, ocasión en la que, por Sentencia N° 2012-004621 de las 16:00 horas del 10 de abril de 2012, dijo:

“VII.- Este Tribunal Constitucional advierte que cuando la Asamblea Legislativa, vía moción de orden del artículo 208 bis del Reglamento, crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa y estricta. El procedimiento especial creado a través del artículo 208 bis, como tal, es una excepción a las reglas de los procedimientos legislativos ordinarios que es consentida por una Nombre3382 calificada, pero, como tal, será, siempre, una excepción. El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado, evita cualquier infracción a los principios de la seguridad jurídica (enfatizado por este Tribunal en el Voto No. 398-2005 de las 12:10 hrs. de 21 de enero de 2005) y democrático. Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una Nombre3382 agravada.

VIII.- VICIO ESENCIAL DEL PROCEDIMIENTO DE CARÁCTER EVIDENTE Y MANIFIESTO AL OMITIRSE LA PUBLICACIÓN DE UN NÚMERO SIGNIFICATIVO DE MOCIONES DE FONDO APROBADAS EN LA COMISIÓN ESPECIAL QUE, EN CONJUNTO, MODIFICARON SUSTANCIALMENTE EL PROYECTO ORIGINAL. De otra parte, los diputados consultantes manifiestan que, pese a lo estipulado en el apartado I.2.h., del procedimiento legislativo especial, durante su trámite se omitió publicar una serie de cambios realizados al proyecto que mermaron la expectativa recaudatoria, la cual, originalmente, fue planteada en un 2% y que, posteriormente, bajó entre un 0.5% y un 1% del PIB. Específicamente, indicaron que se omitieron publicar las mociones Nos. 92, 128, 221, 222, 225, 227, 262, 267, 623, 624, 639, 5189-208 bis, 650, 661, 662, 674, 761, 778, 1717, 1786, 1843, 3767, 2325, 3771, 3879, 3991, 4128, 4129, 4157, 4241, 4242, 4243, 4244, 4245, 1375-208 bis, 1378-208 bis, 1379-208 bis, 1382-208 bis, 1383-208 bis, 1384-208 bis, 1388-208 bis, 4940-208 bis, 5142-208 bis, 5143-208 bis, 5144-208 bis, 5145-208 bis, 5146-208 bis, 5165-208 bis, 5166-208 bis, 5190-208 bis, 5193-208 bis, 5194-208 bis, 5215-208 bis, 5219-208 bis y 5428-208 bis. No obstante, de previo, resulta oportuno aclarar que esta Sala no entrará a conocer lo referente a las mociones Nos. 92, 225, 639, 5189-208 bis y 4245. Debe observarse que el contenido de la moción No. 92, no hace referencia a lo que manifiestan los diputados consultantes. Si bien los citados legisladores argumentan que dicha moción versa sobre la exoneración a los insumos de pesca del pago del impuesto sobre las ventas, lo cierto es que la misma guarda relación con el plazo para presentar las declaraciones del impuesto sobre la renta. Por su parte, la moción 225, únicamente, aclaró que el monto total del salario escolar que se encuentra exento del pago del impuesto de la renta comprende tanto a los trabajadores públicos como a los privados. De igual forma, la moción 639 no versa sobre lo que los consultantes señalan en el presente asunto. La moción se encuentra referida a la exención del pago del impuesto sobre las ventas al cobro de comisión por retiro de dinero en cajeros automáticos y no, como lo sostienen los legisladores, a la exoneración de un 50% del impuesto a las utilidades a las entidades empresariales del Estado. En todo caso, los mismos consultantes señalan que dicho beneficio fue eliminado, posteriormente, mediante la moción 5189-208 bis. Asimismo, la moción 4245, únicamente, aclara que se mantendrá el tratamiento fiscal para los sistemas de pensiones establecido en la Ley de Protección al Trabajador. Ahora bien, en cuanto al resto de mociones, resulta menester señalar que el principio de publicidad en el trámite legislativo resulta de significativa y especial relevancia tratándose de la materia tributaria, habida cuenta que debe existir una absoluta transparencia de todas las modificaciones que sufra un proyecto sobre la materia, dado el carácter general de la potestad tributaria y del principio de igualdad en el sostenimiento de las cargas públicas. Es así como cualquier modificación sustancial de un proyecto de ley de tal naturaleza debe estar sometida a una intensa y escrupulosa publicidad. De conformidad con el apartado I.2.h. del procedimiento especial aprobado ex artículo 208 bis “Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad”. En la presente consulta, es evidente que el abundante número de mociones de fondo aprobadas, en su conjunto, produjeron un cambio sustancial del proyecto original, empezando por la modificación y reducción de las tarifas de algunos de los impuestos para ciertos sujetos, bienes y servicios, así como el establecimiento de exoneraciones o exenciones a distintos sujetos de derecho público y privado y actividades, la introducción de algunos beneficios fiscales, el establecimiento de regímenes transitorios especiales, etc. Tales mociones de fondo, ciertamente, versan sobre la materia regulada por el proyecto original y debidamente publicado, pero, su sumatoria, produce una cambio sustancial de tal entidad y magnitud que, por tratarse de la materia tributaria, exige una publicidad acentuada y calificada, habida cuenta que los ciudadanos tienen derecho a saber y conocer las razones por las cuales determinados sectores, grupos, sujetos, actividades, bienes y servicios son exonerados, sometidos a una tarifa reducida o diferenciada o a un régimen de beneficios fiscales o exenciones o a uno transitorio diferente, de manera diversa al resto de los contribuyentes. La publicidad en materia tributaria tiene mayor importancia por la generalidad e igualdad que debe existir en materia de imposición de las cargas impositivas. Nótese que ha sido un hecho público y notorio, exento de prueba, que la expectativa recaudatoria contenida en el proyecto original, fue, sustancialmente, reducida con las mociones de fondo aprobadas. Según se desprende de la revisión integral de los doscientos catorce tomos del expediente legislativo y del oficio del Presidente de la Asamblea Legislativa No. Pal-1612-2012 de 10 de abril de 2012, recibido por este Tribunal el 10 de abril pasado, tales mociones de fondo no fueron publicadas en el Diario Oficial La Gaceta. Específicamente, sobre este punto en el oficio citado, el Presidente de la Asamblea Legislativa manifestó lo siguiente:

“Respecto de la solicitud que se hace en la cédula de notificación del 9 de abril de 2012 de las 16:50 horas respecto del expediente No. CED43815, consulta legislativa facultativa interpuesta por señores Nombre80022 y otros, respondemos lo siguiente. Tal y como nos lo certifica el Lic. Marcos William Quesada Bermúdez en el oficio SD-98-11-12 del 9 de abril del año presente y que adjuntamos, del proyecto # 18.261 Ley de Solidaridad Tributaria, sólo se registra en el trámite la publicación de su texto base, o texto inicial del mismo en la Gaceta 187, Alcance 70 del 29 de septiembre de 2011. Ningún otro texto actualizado fue publicado ya que, ni la Comisión respectiva tomó ningún acuerdo para solicitárselo al Directorio Legislativo, ni lo hizo así la Presidencia de la Comisión propiamente. Por otra parte las mociones de orden en el Plenario Legislativo tendientes a aprobar su publicación, fueron sistemáticamente rechazadas por la Nombre3382 de los señores y señoras diputadas, por todo lo cual no se llevó a cabo dicha publicación”.

Consecuentemente, de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original”.

De manera tal, que al no haberse observado, de forma estricta, el procedimiento especial establecido vía artículo 208, bis, del Reglamento de la Asamblea Legislativa, en la tramitación del proyecto de ley en consulta, por haberse omitido la publicación del texto sustitutivo del proyecto de ley en consulta, aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016, se incurrió en un vicio esencial en el procedimiento legislativo de formación de la ley, con violación del principio democrático y de publicidad, sin que la sustitución, en definitiva, de dicho texto, pueda convalidar el procedimiento.

Así lo determinó también esta Sala en la Sentencia N° 2015-001241, de las 11:31 horas del 28 de enero de 2015, al declarar inconstitucional varios artículos de la Ley de Impuesto a las Personas Jurídicas, N° 9024 del 23 de diciembre de 2011, por violación al principio de publicidad, al disponer:

“Del análisis anterior y, particularmente de lo resaltado, se desprende que el texto sustitutivo no publicado introdujo dos sanciones que inmovilizan cualquier sociedad, tales como la no emisión de certificaciones de personería jurídica y la cancelación de inscripción de documentos a los morosos. En tal sentido se aprecia, igualmente, que en el texto sustitutivo se aprobaron cuestiones esenciales del impuesto, relativas a las sanciones, que no estaban previstas en el proyecto de ley original y que, por lo tanto, ameritaban garantizar el principio constitucional de publicidad. Como Nombre3956 del examen realizado, se concluye que los artículos 1, 3 y 5 de la Ley No. 9124, Impuesto a las Personas Jurídicas, son inconstitucionales a la luz de lo dispuesto en el artículo 73, inciso c), de la Ley de la Jurisdicción Constitucional. Lo anterior, por cuanto, en la formación de la ley en cuestión se violentaron requisitos o trámites sustanciales relativos a la publicidad del proyecto, principio que, como se ha venido reiterando, es básico en un Estado Constitucional de Derecho, más aún, cuando de materia tributaria se trata. En efecto, la omisión de realizar una nueva publicación del proyecto de ley, a fin de garantizar la publicidad del texto, así como, procurar la más amplia participación ciudadana e institucional, violentó un aspecto esencial en el procedimiento parlamentario, cuya omisión acarrea un vicio de inconstitucionalidad sobre el procedimiento legislativo”. (El resaltado no es del original).

c.- Publicación tardía del texto sustitutivo del proyecto de ley aprobado en Primer Debate por el Plenario Legislativo. Del expediente legislativo N° 19.922, se desprende que el texto sustitutivo aprobado en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, fue publicado en el Alcance 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, en tanto esta consulta fue planteada el 1 de noviembre de 2017. Es decir, que no solo dicho texto fue publicado en forma extemporánea, luego de ser aprobado en Primer Debate, sino que al momento de la presentación de la consulta ante este Sala no había sido publicado, con lo cual se produjo, también, otra violación al principio de publicidad; y, por ende, a un trámite esencial del procedimiento legislativo. La publicación del texto sustitutivo del proyecto de ley debió haberse producido antes de su aprobación en primer debate, ya que, al haberse hecho con posterioridad, se violó, asimismo, el principio democrático, al impedir, a la ciudadanía, conocer, de previo a su aprobación, el texto sustitutivo del proyecto. En tales circunstancias, la publicación tardía tiene, sobre el procedimiento legislativo, los mismos efectos que la no publicación, ya que la finalidad de la publicación -sea, que la población conozca, de previo a su aprobación, el texto final del proyecto de ley y pueda fiscalizar debidamente la labor legislativa- se tornó en nugatoria, vicio esencial en el procedimiento legislativo que no puede ser salvado por la publicación posterior. Así, lo dicho en el considerando anterior, con respecto a la no publicación del texto aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016, es de plena aplicación a la publicación tardía del texto sustitutivo, una vez aprobado en Primer Debate, debido a que una publicación tardía de un proyecto de ley, equivale a la no publicación del proyecto.

Con base en las anteriores consideraciones, estimamos que el proyecto de ley consultado a la Sala Constitucional adolece de varios vicios esenciales de procedimiento que lo afectan en su totalidad y que lo tornan contrario al Derecho de la Constitución, razón por la cual, resulta inconducente entrar a analizar los alegatos de fondo planteados por los consultantes contra el contenido sustancial del proyecto de ley en cuestión. En los términos dichos, diferimos del criterio de la Nombre3382 y dejamos así evacuada esta consulta legislativa relativa al proyecto de ley denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo N° 19.922.

XXIV.-El Magistrado Cruz Castro expone razones adicionales al voto salvado.

• 1)Nota aclaratoria sobre la falta de publicación del proyecto como un vicio esencial Tal como se indica en el voto de mayoría, el texto sustitutivo en la Comisión, aprobado el 13 de setiembre del 2016, no fue publicado. Aunque posteriormente, el texto fue aprobado por la Comisión el 27 de julio del 2017 y publicado el 04 de agosto del 2017; y aunque luego el texto aprobado en primer debate fue publicado hasta el 9 de noviembre del 2017. En este contexto, no puede ignorarse que la moción que norma el procedimiento de aprobación del proyecto consultado, señala que se debe publicar en caso de que haya un texto sustitutivo. Por lo tanto, se trató en esta hipótesis de una transgresión a lo indicado en la moción que norma el procedimiento (por por demás, por tratarse de la aplicación del artículo 208 bis hace que dicha moción haga las veces de normas reglamentarias en ese proyecto en concreto), siendo que cualquier tipo de publicación normada, es un requisito esencial. Por tratarse de un procedimiento legislativo abreviado, con mayor rigor debe respetarse el principio de publicidad de las normas discutidas o aprobadas. La debilidad de un procedimiento abreviado requiere una aplicación más rigurosa de la exigencia de publicidad, sin admitir una convalidación respecto de un requisito tan importante como la publicidad. Por otro lado, la publicidad de los proyectos de ley es la única forma en que la actividad de los representantes populares trasciende a toda la población. Es la proyección de la actividad parlamentaria hacia el exterior, operando como una garantía constitucional que impide que el parlamento actué de espaldas a la ciudadanía. A diferencia de otros asuntos en donde he considerado que la falta de publicación no ha sido un vicio esencial, en este caso considero que lo es, por tres razones: porque la norma que regula el procedimiento así lo indica, porque se trata de un texto sustitutivo, y además porque, la falta de publicación no permitió el conocimiento de la población del texto que se estaba discutiendo en ese momento, impidiendo, además, que la ciudadanía pudiera realizar manifestaciones sobre lo que pretendía el parlamento con el proyecto de ley. En este caso, tampoco se discute si se omitió la publicación de unas normas que no variaban la esencia del proyecto, es que en este asunto, se omitió, totalmente, la publicidad durante el desarrollo de un procedimiento legislativo abreviado, que como lo expresé, debilita totalmente los principios constitucionales que rigen el procedimiento parlamentario.” Nombre9892.-) Sobre cómo se violentó el artículo 167 Constitucional Luego, en el mismo sentido que el voto salvado a la resolución número 2022-10593, de los Magistrados Salazar, Garita y Nombre52336, con redacción del primero, considero que hay una violación al artículo 167 Constitucional:

“… en el procedimiento legislativo se incurrió en una violación grosera, manifiesta y evidente del artículo 167, de la Constitución Política, y que, por su relevancia, demanda la inconstitucionalidad de la totalidad de la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”.

Debe empezarse por señalar, que la Comisión Especial encargada para la tramitación del expediente legislativo N° 19.922, puso en conocimiento de la Corte Plena los respectivos proyectos de ley que se iban aprobando, para cumplir con lo establecido en el citado numeral 167. Las consultas a la Corte Suprema de Justicia ocurrieron en tres ocasiones; a saber:

• a)El proyecto de ley se consultó a la Corte Suprema de Justicia y el informe rendido se conoció en la sesión de Corte Plena N° 29-16 del 26 de septiembre de 2016, artículo XVIII, comunicándose a la Asamblea Legislativa, mediante oficio SP-288-16 del 28 de septiembre de 2016 con la indicación expresa de que el proyecto de ley consultado incide en la organización y funcionamiento del Poder Judicial.
• b)En una segunda ocasión, la Corte Plena en sesión N° 9-17 del 24 de abril de 2017, artículo XXIX, conoció la consulta que se le planteó y mediante oficio SP-118-17 de 26 de abril de 2017, en el que se puso en conocimiento de la Comisión Especial Legislativa que la Corte Plena había emitido el criterio negativo al proyecto de ley consultado, por incidir en la organización y funcionamiento del Poder Judicial.
• c)En una tercera ocasión, la Corte Plena en sesión N° 26-17 de 7 de agosto de 2017, artículo XXX, conoció de la consulta planteada por la Comisión Especial sobre el Dictamen Afirmativo de Nombre3382, y se emitió el criterio negativo indicando que el proyecto de ley tramitado bajo expediente N° 19.922, incide en la organización, estructura y funcionamiento del Poder Judicial; decisión que se comunica a la Asamblea Legislativa mediante oficio SP-253-17 de 10 de agosto de 2017.

En todas y cada una de las consultas formuladas, la Corte Plena estableció que se trataba de proyectos de ley que afectaban su organización y funcionamiento, de modo que, con base en ese criterio negativo, de conformidad con el artículo 167, de la Constitución Política, y los principios de coordinación, respeto mutuo e igualdad, que informa las relaciones entre órganos constitucionales, entre dos poderes del Estado [sistema de frenos y contrapesos, checks and balances], se debía aprobar la ley con Nombre3382 calificada. Además, se debe mencionar que el último de los proyectos que fue el Dictamen Afirmativo de Nombre3382 aceptado por la Comisión Especial el 27 de julio de 2017, no fue ese el final. Por el contrario, el texto del proyecto fue objeto de mociones de fondo y reiteración aceptadas por la Comisión Especial, sobre las que votó posteriormente el Plenario Legislativo en Primer Debate, en la sesión extraordinaria N° 14 del 30 de octubre de 2017 (folios 4000, 4306 a 4327 del expediente legislativo). De este modo, el texto votado por el Plenario Legislativo en Primer Debate fue el texto modificado manteniendo algunos de los puntos sobre los cuales la Corte Plena había emitido su criterio negativo, entre ellos, la instalación de una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial en perjuicio de las competencias del Consejo Superior del Poder Judicial. Pero además, debe indicarse que contenía otros cambios sustanciales al proyecto de ley, entre ellos los que agravaron algunas condiciones para los funcionarios judiciales, para el goce y disfrute del derecho a la pensión y jubilación, situación que la Corte Plena debía pronunciarse -respecto del artículo 167, Constitucional- por su relevancia en el Derecho de la Constitución. Estas modificaciones fueron votadas en el Primer Debate, y quedaron aprobadas en el Segundo Debate. Lo anterior, sin haberse hecho la consulta institucional al proyecto aprobado en Comisión y que posteriormente fue votado por el Plenario en la sesión extraordinaria N° 14 del 30 de octubre de 2017.

Si bien, la Asamblea Legislativa consideró era innecesario hacer la consulta al Poder Judicial del texto final, aprobado en Comisión Especial del 27 de julio y las subsiguientes modificaciones realizadas por mociones de fondo y reiteración, y continuar con el trámite legislativo siguiendo el criterio de la Sala la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, dado que esas modificaciones al régimen de pensiones del Poder Judicial no afectaban la estructura y funcionamiento del Poder Judicial, ni el contenido esencial de la independencia judicial, ello no es de recibo para los suscritos juzgadores, como se desarrollará más adelante. Además, hay un patrón de agravamiento a las condiciones de los funcionarios del Poder Judicial que se pueden enumerar de algunas disposiciones que fueron modificadas por las mociones de fondo y de reiteración que quedaron plasmados en el texto aprobado en Comisión, que implicaban un cambio sustancial en el proyecto anteriormente consultado. Como se indicó, este último texto fue aprobado en Primer Debate el 30 de octubre de 2017, según el cual, con un ejercicio de comparación, se observan algunas de las siguientes modificaciones sustanciales de consideración, como por ejemplo las siguientes:

• a)En el artículo 224, se estableció el agravamiento de un 85% del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en la vía laboral, y se modifica para establecerlo en un 82% del promedio de los últimos veinte años de salarios mensuales ordinarios.
• b)En el artículo 229, similar disminución corrió el régimen por sobrevivencia, donde por la muerte del servidor activo la cuantía por viudez, unión de hecho u orfandad disminuiría de un 85% a un 80%.
• c)En el artículo 227, similar ocurre por la incapacidad permanente (invalidez) del funcionario de un 85% a un 83%.
• d)En lo que respecta a los ingresos del fondo de pensiones y jubilaciones del Poder Judicial, se evidencia que se establecía un aporte obrero de entre un once por ciento (11.00%) y un quince por ciento (15%) de los sueldos que devenguen los servidores judiciales, y de las jubilaciones y pensiones a cargo del fondo. Finalmente, quedó aprobado en un trece por ciento fijo (13%), lo que implica que el piso o base del aporte obrero no podría disminuirse al porcentaje menor del once por ciento. Si bien se elimina el extremo superior, el porcentaje fijo eliminó la disminución a favor del empleado judicial, quien históricamente viene aportando una suma importante al fondo.

De este modo, al contrario del criterio de la Nombre3382 de la Sala, que se sustenta de forma importante en la doctrina de la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, antecedente en el cual los suscritos suscribimos un voto salvado junto al magistrado Cruz Castro, consideramos que la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, contiene el vicio sustancial del procedimiento legislativo, por la violación a la norma constitucional que impone la consulta constitucional, con base en los argumentos que se exponen a continuación.

A.- Texto de la ley no consultado a la Corte Suprema de Justicia.

A la base de la discusión, tal y como bien se afirma en el voto de mayoría, está la determinación de si, al tenor de lo dispuesto en el artículo 167, de la Constitución Política, el órgano legislativo estaba o no en la obligación de consultar el citado proyecto de ley al Poder Judicial, deber que, por lo demás, ha sido incorporado en los artículos 126 y 157, del Reglamento de la Asamblea Legislativa, en los cuales se estipula el procedimiento que ha de observarse al efecto. Del texto constitucional se colige, que la consulta obligatoria a la Corte Suprema de Justicia sólo es tal si el proyecto de ley se refiere a la organización o funcionamiento del Poder Judicial. De modo, que el meollo del asunto está en lo que se ha de entender por “organización o funcionamiento del Poder Judicial”.

Al respecto, el voto de Nombre3382 sostiene, que cuando la Carta Política Fundamental hace referencia a la organización y funcionamiento del Poder Judicial, se refiere -únicamente- a la afectación de la función jurisdiccional, y no de la propiamente administrativa. En abono de esta posición, se citan las Sentencias N° 1998-5958 de las 14:54 del 19 de agosto de 1998, N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 y N° 2008-5179 de las 11:00 horas del 4 de abril de 2008. Asimismo, en relación con el tema concreto del Fondo de Pensiones y Jubilaciones del Poder Judicial y la obligación de la Asamblea Legislativa de consultar a la Corte Suprema de Justicia los proyectos de ley que versan sobre aquel, el voto de Nombre3382 cita las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, con base en las cuales concluye, que en esos casos, la Asamblea Legislativa no está obligada a consultar el proyecto de ley a la Corte Suprema de Justicia, en los términos dispuestos en el artículo 167, Constitucional. Sin embargo, a criterio de los suscritos, tal interpretación del numeral constitucional, restringida únicamente a la función jurisdiccional, no se deriva ni del texto de la Carta Fundamental, ni de la jurisprudencia de esta Sala. En efecto, en cuanto a los precedentes de cita, es de destacar, que con respecto a las tres primeras sentencias, de ellas no se infiere lo que, en su voto, sostiene la mayoría. Así, en la Sentencia N° 1998-5958 de las 14:54 del 19 de agosto de 1998, lo que se desarrolla es solo el término “funcionamiento” -del binomio “organización o funcionamiento”- del Poder Judicial, sin referirse al tema de la organización de ese Poder de la República. En concreto, en la cita que se hace de ese voto, la Sala claramente indica que “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados”, con lo cual se hace evidente, que el tema de la organización -que es el que aquí interesa- no fue desarrollado en dicha resolución, simplemente, porque el caso no lo requería, ya que se trató de la consulta legislativa preceptiva de constitucionalidad sobre el proyecto de “Adición de un nuevo Capítulo IV, denominado “Del recurso de hábeas data”, al Título III de la Ley de la Jurisdicción Constitucional, ley Nº 7185 del 19 de octubre de 1989”, que se tramitó en el expediente legislativo número 12.827, donde el tema en discusión era que la reforma afectaba la función jurisdiccional del Poder Judicial. Que esto es así, se desprende del propio texto de la sentencia que no se cita con la debida amplitud en el voto de mayoría: “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados. Y, en Costa Rica, la jurisdicción constitucional es indudablemente judicial, desde que tanto la Constitución Política como la Ley de la Jurisdicción Constitucional integran a esta Sala dentro de la estructura de la Corte”. Hecha la cita en su contexto, no se puede inferir, que la Sala haya restringido el binomio “organización o funcionamiento” meramente a lo jurisdiccional, sino que, en el caso de cita, este Tribunal Constitucional únicamente se refirió al aspecto de la función jurisdiccional del Poder Judicial, porque era el tema en discusión, sin hacer exclusión, ni referirse al tópico de la organización administrativa de dicho Poder de la República. Lo mismo cabe decir en relación con la Sentencia N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 a la que alude la mayoría. Se trata de una consulta legislativa facultativa de constitucionalidad respecto del proyecto de ley de “Modificación del Código Penal, Ley número 4573 y sus reformas”, expediente legislativo número 14.158. Nuevamente, se trató de una reforma que afectaba directamente la función jurisdiccional del Poder Judicial, no su organización administrativa. De allí que, en este caso, tampoco la Sala desarrolló este último tema, por resultar ocioso. Es por ello, que la discusión de fondo se centró y agotó en los aspectos de la función jurisdiccional del Poder Judicial: “…dicha consulta [la del artículo 167, de la Constitución Política] resulta obligatoria cuando lo discutido en la Asamblea es un proyecto de ley que pretenda establecer reglas de funcionamiento y organización del Poder Judicial, entendido esto no apenas como las disposiciones que regulen la creación de tribunales de justicia o competencias jurisdiccionales, sino incluso aquellas que dispongan sobre modo de ejercicio de dichas competencias, es decir, sobre la forma en que el Poder Judicial lleva a cabo su función jurisdiccional, incluidas normas propiamente procesales”. Ciertamente, es evidente que lo expresado se limitó a examinar lo relativo al ejercicio de las competencias jurisdiccionales de los Tribunales de Justicia, toda vez que era sobre ese aspecto en particular que versó esa consulta. Pero, la Sala no dijo que este sea el único extremo en que la consulta del numeral 167, de la Constitución Política, sea obligatoria, sino que lo que dijo es que, en ese caso, es obligatoria, sin referirse a otros casos en que también lo sea, como lo es lo referente a la organización y competencias administrativas del Poder Judicial.

Comentario separado merece la Sentencia N° 2008-5179 de las 11:00 horas del 4 de abril de 2008, puesto que aquí, a diferencia de la lectura que hace la mayoría, sí se establece que lo relativo a la organización administrativa del Poder Judicial cae dentro de la consulta obligatoria que estipula el citado artículo 167, Constitucional. En esa ocasión, este Tribunal Constitucional, como intérprete máximo de la Constitución Política, al referirse a los términos de “organización o funcionamiento” del Poder Judicial, contenidos en el artículo 167, de la Carta Política, como condición de la consulta obligatoria a ese Poder de la República por parte de la Asamblea Legislativa, consideró “…que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas…”. No se trata de un cambio de criterio de este Tribunal en la materia, sino, dentro de la línea jurisprudencial ya trazada, de una mayor determinación de los términos “organización o funcionamiento” que emplea el artículo 167, de la Constitución Política, para establecer los casos en los cuales los proyectos de ley que estén en la corriente legislativa deben ser consultados -obligatoriamente- a la Corte Suprema de Justicia. Esta sentencia no amplió, en modo alguno, los supuestos de consulta obligatoria; por el contrario, lo que hizo fue definirlos de una manera más amplia y precisa. Por ello, allí claramente se determinó, que en esos casos, pero solo en estos, la consulta es obligatoria. Así se entiende que, en esa misma sentencia, se expresara: “[c]abe apuntar que tal exégesis se impone en aras de mantener el equilibrio de poderes, sin privilegiar a uno u otro órgano constitucional, de manera que cada uno pueda ejercer sus funciones de manera independiente y separada como lo impone el propio texto constitucional (artículo 9° de la Constitución). En otros términos, la precisión de tales conceptos evita cualquier colisión, extralimitación o exacerbación de las respectivas funciones, en aras de mantener el equilibrio y la contención de los poderes, por cuanto, el fin de la norma lo constituye no sólo la independencia funcional y la autonomía presupuestaria del Poder Judicial, sino, también, el equilibrio entre el Poder Legislativo y Judicial. En efecto, una interpretación amplia de los términos empleados por el constituyente originario, por parte de la Corte Plena, podría conducir a que determinadas materias que, en sentido estricto no están referidas a la organización y funcionamiento del Poder Judicial, ameriten, injustificadamente, de una ley reforzada, con lo cual se ralentiza o entorpece, innecesariamente, la función legislativa. De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equívocamente, que el proyecto no versa sobre organización y funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial”. De lo anterior se colige, que todo lo relativo a la materia de organización y funcionamiento del Poder Judicial, pero solo y estrictamente esto -para guardar el equilibrio entre independencia funcional y autonomía presupuestaria del Poder Judicial, por un lado, y la libertad de configuración del legislador ordinario, por otro-, es lo que obliga al órgano legislativo a realizar la consulta ante la Corte Suprema de Justicia, sin que se pueda extender a otras materias. En este sentido, no hay la menor duda, de que la Sala Constitucional ha entendido que lo relativo a la organización administrativa del Poder Judicial, y no sólo lo concerniente a la afectación, directa o indirecta, de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167, de la Constitución Política. Y no podría ser de otra manera, ya que la afectación o modificación de la organización administrativa del Poder Judicial en general -y no solo lo atinente a los órganos jurisdiccionales o judiciales en sentido estricto- también repercute en el servicio de Administración de Justicia que presta, y en la independencia que constitucionalmente se garantiza a ese Poder y a los jueces como funcionarios llamados a impartir justicia.

Por otra parte, las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, que se citan en el voto de Nombre3382 como fundamento para concluir que los proyectos de ley relativos al tema específico del Fondo de Pensiones y Jubilaciones del Poder Judicial no necesitan ser consultados a la Corte Suprema de Justicia, tampoco tienen la virtud de dar el fundamento que, en relación con esta materia, afirma que tienen la Nombre3382 de la Sala.

En la primera de dichas sentencias, la Sala conoció unas acciones de inconstitucionalidad acumuladas planteadas contra la Ley Marco de Pensiones, Ley N° 7302 de 8 de julio de 1992. Este Tribunal, en aquella ocasión, lo único que afirmó es que, en el caso de la Ley Marco de Pensiones, no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley respectivo, por la sencilla razón, de que dicho proyecto no afecta a los servidores judiciales; y, por lo tanto, no cae dentro de lo preceptuado por el artículo 167, de la Constitución Política. Asimismo, en el voto de cita, se indica que el funcionamiento está referido a la función jurisdiccional, pero no hace alusión alguna al tema de la organización del Poder Judicial, que es de lo que aquí se trata.

De igual modo, en la Sentencia N° 2002-4258 de las 9:40 del 10 de mayo de 2002, la Sala conoció de acciones de inconstitucionalidad acumuladas interpuestas contra el artículo 4, de la Ley N° 7605, de 2 de mayo de 1996, en cuanto reforma los artículos 224, 226 y 236, incisos 1) y 2), de la Ley Orgánica del Poder Judicial, N° 7333 de 5 de mayo de 1993, así como, por conexidad y consecuencia, contra el artículo 33, inciso a), del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. La Sala descartó, entre otros temas alegados, la violación al artículo 167, de la Constitución Política, por el hecho de que la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho al respecto en la Sentencia N° 1995-3063 de las 15:30 del 13 de junio de 1995, que, como ya se dijo, solo se refirió al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. De modo tal, que, a diferencia del criterio externado por la mayoría, dichas sentencias no excluyen la materia relativa al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, sino solo en el tanto y en el cuanto el respectivo proyecto de ley no tenga relación directa con la “organización o funcionamiento del Poder Judicial”, temas que, ciertamente, no estaban involucrados en las acciones que se plantearon ante esta Sala y que fueron resueltas en las sentencias de cita. Con ello, no se excluye la materia concerniente al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, como lo entiende la mayoría, ya que este tema, en sí mismo considerado, no está excluido de dicha consulta, sino que ello dependerá de si el proyecto de ley en cuestión contiene o no regulaciones relativas a la organización o el funcionamiento de ese Poder, aspecto que habrá que determinar de previo en cada caso para así establecer la obligatoriedad o no de dicha consulta.

En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establecida en el artículo 9, y reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar, en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167, Constitucional. En este sentido, a criterio de los suscritos, es un grave error conceptual confundir o asimilar la función jurisdiccional en sentido amplio, con inclusión de la función auxiliar a la jurisdiccional, con la función estrictamente administrativa. La función jurisdiccional es una función especial y diferente a la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Una cosa es la Administración de Justicia y otra muy distinta la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa. Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la independencia, en su doble vertiente, tanto de Poder Judicial en sí mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. Basta para comprender la delicada tarea que realizan los jueces de la República, con la colaboración de los funcionarios que los asisten y los auxilian en sus funciones y sin los cuales aquellos no podrían ejercer debidamente su función, con tener presente que ellos deciden los casos sometidos a su conocimiento con fuerza de cosa juzgada; es decir, deciden cuál es la verdad con fuerza de autoridad de ley en cada caso, sin que su decisión, una vez alcanzada esa condición, pueda ser, en principio, revisada. Esto implica una función sumamente delicada y una gran responsabilidad, la cual no podría llevarse a cabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no puede haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De allí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios.

Existe consenso en la doctrina administrativa, en que la función jurisdiccional es, si no la más compleja, una de las más complejas y difíciles de llevar a cabo en el Estado Constitucional de Derecho en las sociedades modernas. Esto por cuanto, a diferencia de lo que se decida en los Poderes Legislativo y Ejecutivo, las decisiones del Poder Judicial, en ejercicio de la función jurisdiccional, son inapelables; es decir, tiene fuerza o autoridad de cosa juzgada. Esto no solo implica una gran responsabilidad, sino la necesidad de contar con una serie de principios y garantías que permitan el adecuado ejercicio de esa función. En este contexto, la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de esa delicada función. Corresponde al juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Pero esta independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función. Por ello, en materia de remuneración y jubilación, no puede equipararse con el sector administrativo. La necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica, en torno al tema de la acción, que la jubilación o pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo. Lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad; y, por ende, en la paz social. En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho; es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia. La independencia judicial es una garantía institucional establecida a nivel constitucional, sea, en el rango más elevado de la jerarquía de las normas, al punto que también se encuentra estipulada como un Derecho Humano. En efecto, la Convención Americana de Derechos Humanos ha establecido, como derecho humano, el ser oído por un juez imparcial. Al respecto, en el artículo 8.1, se establece:

“Artículo 8. Garantías Judiciales.

1. Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral, fiscal o de cualquier otro carácter”.

La independencia judicial constituye un principio fundamental dentro del Estado Constitucional de Derecho. Pero esa independencia, para ser real, no solo debe ser organizativa y funcional, sino también económica. Esa independencia económica está también garantizada en el artículo 177, de la Constitución Política, al establecer que el proyecto de presupuesto ordinario deberá asignar al Poder Judicial al menos un 6% de los ingresos ordinarios calculados para el año económico. La intención del Constituyente originario, con la promulgación de esta norma -que establece un egreso constitucional atado-, es garantizar, entre otras cosas, que los jueces y el resto del personal auxiliar de la justicia, tuvieran una retribución adecuada a la complejidad y dificultad de la función jurisdiccional, lo que implica, una jubilación o pensión adecuada también a ello y a las prohibiciones especiales que dicha función implica para los servidores judiciales, las cuales no pesan sobre los servidores públicos de los otros Poderes del Estado. La norma constitucional previene que la asignación presupuestaria pueda convertirse en un instrumento de intervención política en la función jurisdiccional. Pero esto debe verse en toda su amplitud, ya que los salarios de los juzgadores y del personal auxiliar, así como el régimen de pensiones y jubilaciones que les es aplicable, tiene que guardar estricta relación con la labor que realizan, so pena de tornar nugatorio el principio de independencia judicial. De allí, que la independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Así las cosas, una forma de garantizar la independencia del Poder Judicial, de los Jueces de la República y de los auxiliares de justicia, es con una jubilación o pensión digna, acorde con sus funciones constitucionales.

En la exposición de motivos que dio lugar a la promulgación de la Ley de Jubilaciones y Pensiones Judiciales, como adición a la Ley Orgánica del Poder Judicial, el diputado Teodoro Picado Michalski, en fecha 2 de junio de 1938, expresó:

“Es el Poder Judicial uno de los tres principales sostenes en que descansa el Gobierno de la República; y es a sus servidores, a los que por ejercer muy delicadas funciones para la vida misma de la Sociedad, se exige, más que a otros empleados, mayor ilustración, probidad y trabajo. Y es por eso, seguramente, que al pedirse a los servidores judiciales una completa dedicación, durante largos años, a la importantísima tarea de administrar justicia, -con el noble fin de asegurarles su subsistencia al llegar a la vejez o cuando por padecimientos físicos ya no puedan trabajar,- que se ha venido instando ante el Congreso, en distintos períodos legislativos, la promulgación de una ley que contemple esa difícil situación de los funcionarios y empleados del Poder Judicial”.

No se debe soslayar, que las personas juzgadoras y el funcionariado judicial en general, está sometido a un régimen de prohibiciones y de incompatibilidades de mucha mayor intensidad y rigurosidad que el régimen de incompatibilidades y prohibiciones que afecta al resto de los funcionarios públicos, lo que lo hace de una naturaleza completamente distinta. Las regulaciones que se aplican al funcionariado administrativo de todo el sector público no pueden aplicarse también a los funcionarios judiciales. En este sentido, los principios de razonabilidad y proporcionalidad constitucional obligan a que ese régimen de incompatibilidades y prohibiciones asimétrico, que responde a la propia naturaleza de las funciones jurisdiccional y administrativa, deba tener una compensación económica, tanto salarial como al término de la relación laboral. Pero también el principio de igualdad, recogido en el artículo 33, de la Constitución Política, implica la prohibición de tratar como iguales a los desiguales, porque de ello se deriva una discriminación contraria al Derecho de la Constitución. En el caso de los jueces y funcionarios judiciales, existen condiciones objetivas, razonables, justificadas y fundadas en la propia naturaleza de la función jurisdiccional que se ejerce, para darles un trato diferente al del resto de los servidores públicos de las distintas administraciones, con lo cual, lejos de incurrirse en una discriminación, se tutela el principio de igualdad regulado en el citado numeral constitucional. Lo cual quiere decir, que si existe un régimen jubilatorio diferenciado para el sector jurisdiccional, ello no obedece a una decisión arbitraria, subjetiva o antojadiza del legislador, sino a la propia naturaleza específica y diferente de la función jurisdiccional que, objetiva y constitucionalmente, lo justifican.

Lo anterior no solo se deriva de nuestra propia Constitución Política y de los valores y principios que la informan, sino que está contenido en diversos instrumentos internacionales. Así, por ejemplo, en los “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11, se dice lo siguiente:

“11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas”.

Con lo cual, las Naciones Unidas recomienda a todos los países del mundo, que las normas jurídicas deben garantizar a los jueces una remuneración, pensiones, condición de servicios y de jubilación adecuadas y proporcionadas a la complejidad y dificultad de la función jurisdiccional que ejercen. Ello debe entenderse, también, extensivo a los funcionarios auxiliares de la justicia, pues, de otro modo, tal independencia sería imposible.

De igual modo, en la “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, en aras de lograr una independencia real y efectiva del Poder Judicial y de los funcionarios que administran justicia, así como de sus colaboradores y auxiliares, en los párrafos 6.1 y 6.4, se establece lo siguiente:

“6.1 El ejercicio profesional de las funciones judiciales da derecho a la remuneración del / de la juez, cuyo nivel será determinado con el fin de preservarle de las presiones destinadas a influir en sus resoluciones y en general en su actuación jurisdiccional, alterando de ese modo su independencia e imparcialidad.

6.4 En particular, el estatuto asegurará al / a la juez que haya alcanzado la edad legal de cese en sus funciones, después de desarrollarlas a título profesional durante un período determinado, el pago de una pensión de jubilación cuyo importe se aproximará en lo posible al de su última retribución de actividad judicial”.

El citado instrumento pretende lograr un Poder Judicial real y efectivamente independiente, lo que es una garantía a favor de la ciudadanía. De modo tal, que la adecuada remuneración y pensión de los jueces y de los auxiliares de justicia, en los términos allí expresados, constituye la debida y razonable consecuencia del ejercicio de una función delicada y de mucha dificultad y responsabilidad.

También, el “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32, se hace eco de los mismos principios ya citados, al estatuir:

“Art. 32. Remuneración.

Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”.

Y, en el artículo 33, dispone:

“Art. 33. Seguridad Social.

El Estado debe ofrecer a los jueces su acceso a un sistema de seguridad social, garantizando que recibirán, al concluir sus años de servicio por jubilación, enfermedad u otras contingencias legalmente previstas o en caso de daños personales, familiares o patrimoniales derivados del ejercicio del cargo, una pensión digna o una indemnización adecuada”.

Debe tenerse presente, que la jubilación y la pensión forman parte de los Derechos Económicos, Sociales y Prestacionales contenidos en el Pacto Internacional de Derechos Económicos, Sociales y Culturales, adoptado y abierto a la firma, ratificación y adhesión por la Asamblea General de las Naciones Unidad, en su resolución 2200 A (XXI), de 16 de diciembre de 1966. Estas regulaciones también han sido acogidas en el Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces, dicho Consejo recomendó:

“…es generalmente importante (y especialmente en el caso de las nuevas democracias) fijar disposiciones legales específicas que garanticen unos salarios de jueces protegidos contra reducciones y que aseguren de facto “el aumento de los salarios en función del coste de vida”.

Estas recomendaciones son de total aplicación al tema de las pensiones y jubilaciones de los jueces y de los servidores judiciales en general, ya que están íntimamente relacionadas con el principio de independencia del Poder Judicial, tal y como ya ha quedado expuesto.

Pero no solo en el ámbito internacional se ha regulado esta materia en los términos dichos, sino que también ha sido objeto de regulación a lo interno del Poder Judicial, con consideraciones semejantes a las dichas.

En efecto, la Corte Plena aprobó el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces, en sus diferentes facetas. En el artículo 24, relativo a las condiciones materiales de la independencia judicial, se establece que el Estado debe garantizar “la independencia económica del Poder Judicial, mediante la asignación del presupuesto adecuado para cubrir sus necesidades y a través del desembolso oportuno de las partidas presupuestarias”, lo cual está íntimamente relacionado con lo dispuesto en el ya citado artículo 177, de la Constitución Política, en cuanto a la asignación constitucional de un mínimo del Presupuesto Ordinario para el Poder Judicial, como manifestación de esa independencia.

Asimismo, el artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez: “Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”. Como ya se explicó, esta especial regulación tiene su fundamento en la independencia del Poder Judicial, lo cual debe ser también extendido al tema de la pensión o jubilación de los jueces y del personal auxiliar de la justicia, pues de otro modo, el principio de independencia judicial no sería posible.

El respeto a la independencia judicial, que es uno de los fines que persigue el artículo 167, Constitucional, también fue objeto de regulación expresa en el Estatuto, artículo 20, al disponer que “[l]os otros Poderes del Estado y, en general, todas las autoridades, instituciones y organismos nacionales o internacionales, deben respetar y hacer efectiva la independencia de la judicatura”. Y, precisamente, la intromisión inconsulta del órgano legislativo en la organización y funcionamiento del Poder Judicial, sea creando, modificando o suprimiendo órganos o competencias, judiciales o administrativos, es constitucionalmente inadmisible, por constituir esto una flagrante violación al principio de independencia judicial.

Por último, cabe indicar, que la independencia del Poder Judicial es un principio que tiene una naturaleza particular y específica, distinta al de los otros Poderes del Estado, ya que consiste en un escudo de protección contra la intromisión del poder político, de lo cual no están protegidos los otros Poderes del Estado. Esto, debido a que el Poder Judicial es el que administra justicia y esta debe ser imparcial y libre de cualquier presión externa. Y, en este punto, la presión económica, bien por el salario o estipendio, bien por el monto y condiciones de la jubilación o pensión de los jueces y demás auxiliares de la justicia, juega un papel trascendente en la consecución de una independencia real y efectiva del Poder Judicial.

Con base en las consideraciones precedentes, corresponde, entonces, examinar el contenido de la ley con el fin de determinar si este afecta o no la organización o el funcionamiento del Poder Judicial, en los términos expresados.

En este orden de ideas, al igual que cuando se conoció la consulta legislativa relacionada al proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, hoy aprobada por Ley N° 9544 de 24 de abril de 2018, denominada como “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas”, se mantienen las razones del voto salvado. Esa consulta legislativa fue evacuada por Sentencia N° 2018-005758 a las 15:40 horas del 12 de abril de 2018, en la que abordó las diferentes quejas sobre el artículo 239, de la ahora ley en cuestión. En esa oportunidad, se revisó el trámite legislativo en cuanto crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la cual define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le concede, órgano al que se le otorga independencia funcional y se le asigna una serie de competencias, entre otras, elevar el aporte obrero al Fondo de Pensiones y conocer de las solicitudes de jubilación, lo cual implica una modificación en la estructura del Poder Judicial. De igual modo, se restan competencias al Consejo Superior del Poder Judicial; y, además, en el artículo 240, del proyecto de ley, se confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Los mencionados numerales de la Ley disponen:

“Artículo 239- Se crea la Junta Administrativa del Fondo del Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (Conassif) y la Superintendencia de Pensiones (Supén).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley.

Artículo 240- La Junta Administradora estará conformada por tres miembros que serán electos democráticamente por el colectivo judicial, así como por tres miembros designados por la Corte Plena, con perspectiva de género en ambos casos. Cada integrante titular tendrá un suplente para que lo sustituyan en sus ausencias, quien deberá cumplir con los mismos requisitos del titular.

Quienes integran la Junta durarán en sus cargos cinco años, luego de los cuales podrán ser reelectos, todo conforme con la reglamentación que al efecto habrá de dictarse por la Corte Plena, previa audiencia conferida a las organizaciones gremiales del Poder Judicial.

En la primera sesión ordinaria, la Junta designará a la persona que habrá de presidir las sesiones, esta designación se hará por un espacio temporal de un año, debiendo alternarse cada año entre los representantes del colectivo judicial y de la Corte Plena. Además, se designará a quien le sustituya en caso de ausencia. La persona que preside tendrá voto calificado en caso de empate.

Los miembros de la Junta Administradora no devengarán ninguna dieta pero sí contarán con los permisos necesarios para atender las sesiones. Para ser miembro de la Junta se deberá cumplir con los siguientes requisitos, los cuales deberán ser documentados y demostrados ante la Superintendencia de Pensiones (Supén):

• a)Contar con título universitario en carreras afines a la administración de un fondo de pensiones y estar incorporado al colegio profesional respectivo, cuando así corresponda.
• b)Ser de reconocida y probada honorabilidad.
• c)Contar con conocimientos y al menos cinco años de experiencia en actividades profesionales o gerenciales relevantes para la administración de un fondo de pensiones, de manera que todos los miembros de este órgano posean habilidades, competencias y conocimientos que les permitan realizar el análisis de los riesgos que afectan a la Junta y al Fondo.

No podrán ser miembros de la Junta:

• 1)Las personas contra quienes en los últimos diez años haya recaído sentencia judicial penal condenatoria por la comisión de un delito doloso.
• 2)Las personas que en los últimos diez años hayan sido inhabilitadas para ejercer un cargo de administración o dirección en la Administración Pública o en las entidades supervisadas por la Superintendencia General de Entidades Financieras (Sugef), la Superintendencia General de Seguros (Sugese), la Superintendencia de Valores (Sugeval) y la Superintendencia de Pensiones (Supén).

La integración del órgano deberá garantizar la representación paritaria de ambos sexos, asegurando que la diferencia entre el total de hombres y mujeres no sea superior a uno”.

De la lectura del artículo 239, transcrito, es claro que en él se crea un nuevo órgano dentro de la estructura del Poder Judicial, denominado “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial”, al que se le confiere completa independencia funcional, técnica y administrativa, para ejercer las facultades, competencias y atribuciones que le otorga la ley, enumeradas en los incisos a), b), c), d), e), f), g), h) e i), del propio artículo, para el cumplimiento de sus cometidos, para lo cual contará con personalidad jurídica instrumental. De tal manera, que se crea, ex novo, un órgano administrativo y se adscribe dentro de la estructura del Poder Judicial, con competencias y atribuciones determinadas; y, concomitantemente, se sustraen y eliminan competencias y atribuciones previamente otorgadas -por ley formal- al Consejo Superior del Poder Judicial. Esta sola circunstancia, por las razones dichas, obliga al órgano legislativo a consultar -necesariamente- el proyecto al Poder Judicial, en los términos dispuestos en el artículo 167, de la Constitución Política, ya que ello modifica la organización administrativa del Poder Judicial, con la creación de un nuevo órgano administrativo, y la supresión de competencias del Consejo Superior en favor de ese órgano de nueva creación, lo que, claramente, afecta la independencia de ese Poder de la República.

Lo mismo cabe decir en relación con el artículo 240, de la ley, en el tanto en él se abordan temas propios de la organización administrativa del Poder Judicial, en torno a la conformación y designación de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, su duración en los cargos, la designación de la persona que ha de presidirla y los requisitos para poder ser miembro de esa Junta, entre otros. Es de destacar, que aun cuando la Corte Plena está facultada, por la Ley Orgánica del Poder Judicial, para dictar los reglamentos internos que sean necesarios para el buen funcionamiento del Poder Judicial, el hecho de que, por medio de la ley, se le imponga la obligación de reglamentar lo relativo a la duración en los cargos de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, sin que el texto sustitutivo del proyecto, que fue finalmente aprobado en Primer Debate, haya sido consultado a la Corte Suprema de Justicia, implica una grave intromisión en las competencias del órgano máxima jerarquía del Poder Judicial, con afectación de la organización de ese Poder de la República, en contravención de la consulta obligatoria preceptuada en el artículo 167, de la Constitución Política; y, por ende, una lesión a la independencia judicial. A simple vista, la citada normativa, le quita, al Presidente de la Corte Suprema de Justicia, y por consiguiente, al Presidente del Consejo Superior del Poder Judicial, la competencia que le da la Ley Orgánica del Poder Judicial, de administrar el Fondo de Pensiones y Jubilaciones del Poder Judicial, precisamente de acuerdo con las políticas de inversión establecidas por la Corte Plena, tal y como actualmente está contemplado en el artículo 81, inciso 12.

No obstante lo anterior, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, no fue consultado a la Corte Suprema de Justicia, a pesar de contener una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial. Sin embargo, tal y como se afirma en el voto de mayoría, a folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017, por la Comisión Especial, por oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, con base en lo cual, la Corte Suprema de Justicia emitió su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según consta a folios 2759 a 2807 del expediente legislativo. Esto significa, entonces, que el Poder Judicial sí fue consultado y externó su criterio en relación con el texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, lo que se produjo incluso antes de que dicho texto fuera conocido por el Plenario.

A pesar de ello, dicho texto no fue el que se aprobó en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance N° 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, ya que el que se aprobó es un texto sustitutivo introducido por moción vía artículo 137, del Reglamento de la Asamblea Legislativa. Este último texto no fue consultado a la Corte Suprema de Justicia, tal y como correspondía, según lo analizado supra, al tenor de lo dispuesto en el artículo 167, de la Constitución Política.

Conforme lo argumentan los accionantes, se incurrió en una violación constitucional en el procedimiento legislativo. Al respecto, cabe destacar, que este Tribunal Constitucional tiene competencia para conocer y pronunciarse sobre los vicios en la formación de las leyes cuando se quebrante algún requisito o trámite sustancial previsto en la Constitución o en el Reglamento de la Asamblea Legislativa. Esto es conforme al artículo 73, inciso c), de la Ley de la Jurisdicción Constitucional, que indica:

“Artículo 73.- Cabrá la acción de inconstitucionalidad:

…

• c)Cuando en la formación de las leyes o acuerdos legislativos se viole algún requisito o trámite sustancial previsto en la Constitución o, en su caso, establecido en el Reglamento […] de la Asamblea Legislativa.

…”.

De manera que, conforme a la Ley de la Jurisdicción Constitucional si lo que se analiza es una ley formal aprobada por la Asamblea Legislativa, se trataría del control posterior de las leyes o acuerdos legislativos, mediante el examen del expediente legislativo, para determinar que en el procedimiento de formación de la ley no se incurrió en algún vicio esencial. Por ello, el vicio detectado en el procedimiento legislativo de la Ley N° 9544, denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, debe declararse por la omisión de consultar a la Corte Suprema de Justicia el texto sustitutivo aprobado en Primer Debate, toda vez que esto viola lo dispuesto en el artículo 167, de la Constitución Política, al afectar la organización administrativa del Poder Judicial, por la creación de un nuevo órgano administrativo dentro de su estructura, otorgarle competencias sustanciales en materia de pensiones y jubilaciones; y, a la vez, suprimir competencias otorgadas previamente por ley al Consejo Superior del Poder Judicial (artículos 239 y 240 del proyecto).

Esta Sala, en abono de lo anterior, en la Sentencia N° 2001-13273, de las 11:44 horas del 21 de diciembre de 2001, al evacuar una consulta legislativa de constitucionalidad sobre un proyecto de ley de reforma al Código Penal, en cuanto modifica aspectos relativos a la organización o funcionamiento -meramente administrativa- del Archivo Judicial, sostuvo, por unanimidad, que:

“De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial. A pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia (al menos la misma no consta en la copia certificada del expediente remitida por el Presidente del Directorio), sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que estima la Sala que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia funcional reconocida por el constituyente al Poder Judicial, y en ese sentido debe entenderse que el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado”.

Nótese por lo dicho, que el vicio apuntado no quedó subsanado, en segundo debate, aún si la Ley hubiera sido aprobado por Nombre3382 calificada, pues esto solo sería así si se tratase de la aprobación de un texto de obligada consulta al Poder Judicial, por afectar su organización, estructura y funcionamiento -como en este caso-, y, una vez consultado a la Corte Suprema de Justicia, el órgano legislativo persistiera en aprobarlo apartándose del criterio técnico del órgano judicial. Nada de esto ocurrió en el procedimiento legislativo, toda vez que la Ley N° 9544 del 24 de abril de 2018, no obtuvo siquiera la votación calificada en el segundo debate, y peor aún, el texto aprobado fue sin consulta institucional. El meollo del problema que nos ocupa, realmente, es de la aprobación -en Primer Debate- de un texto inconsulto, en contravención de lo preceptuado en el artículo 167, de la Constitución Política, vicio de procedimiento que resulta insalvable e insubsanable. Esto por cuanto, si bien es cierto, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, fue consultado a la Corte Suprema de Justicia, este texto no fue el que, finalmente, se aprobó en Primer Debate, sino un nuevo texto sustitutivo que, de previo, no fue consultado, no obstante tener relación directa con la organización, estructura y funcionamiento del Poder Judicial, según ha quedado expuesto. Y aún más, si bien el anterior texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 sí fue consultado a la Corte, al haber esta mostrado disconformidad con el texto, hacía obligada una votación calificada por el Pleno, al tenor del artículo 167, de la Carta Fundamental, lo que tampoco se hizo así.

Conviene recordar, que la consulta institucional tiene como fin la protección de la independencia judicial, que es mucho más complejo que reducirlo a la protección de un fuero jurisdiccional. La consulta institucional obligatoria debe ser oportuna, pues de otro modo, sería una obligación de papel que no surtiría las verdaderas salvaguardias que el texto constitucional procura establecer entre iguales Poderes de la República. El sostenimiento de una tesitura contraria, y de modo permanente, por parte de la Nombre3382 del Tribunal no podrá ser sostenible en el tiempo, pues aún en estas circunstancias de inflexión e implosión en la independencia funcional y presupuestaria del Poder Judicial, lo es mayoritariamente, al de las garantías ciudadanas que el Constituyente quiso garantizar en el 167, y luego, mejoró con la reforma al numeral 177, de la Constitución Política.

La Corte Plena, en Sesión N° 27, del 7 de agosto de 2017, Artículo XXX, al evacuar la consulta a la Asamblea Legislativa sobre el Dictamen Afirmativo de Nombre3382, aprobado por la citada Comisión Especial, dispuso:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aun y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundaría en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Tomando en cuenta las observaciones planteadas al Proyecto de Ley tramitado bajo el expediente 19922 (20035), las cuales encuentran apego y sustento en el estudio actuarial realizado por el IICE y con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la Nombre3382 calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 08 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalar la incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Nombre3956, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial”.

La parte final, del citado artículo constitucional (167), expresa literalmente que “para apartarse del criterio de ésta [La Corte], se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea Legislativa”; y, dicho texto final, -no consultado en todo caso- se aprobó por la Asamblea Legislativa el 30 de octubre de 2017, con treinta y un votos (folios 4000 y 4173 del expediente legislativo). Y, para el segundo debate, no obtuvo la Nombre3382 calificada, al alcanzar treinta y cuatro votos (folios 4437, 4608 y 4637 del expediente legislativo).

B.- Las dinámicas jurídicas y sociales que informaron la reforma al artículo 177, Constitucional. Es necesario abordar el criterio de la mayoría, el cual, consideramos con respeto -pero con igual vehemencia-, las razones por las que se considera que utilizan una laxa interpretación de la obligación de la consulta institucional establecida en el artículo 167, Constitucional, además de lo dicho anteriormente. Es claro que, en general, la doctrina constitucional de base para la consulta institucional se basa en similares razones: garantizar que el legislador tenga de primera mano la mejor información para legislar, es decir, cuente con el criterio técnico especifico. Se trata del reconocimiento del Constituyente de las autonomías institucionales, así como en su mayor grado, de la defensa de la independencia que le corresponde a un Poder del Estado u órgano constitucional fundamental del Estado. En los trámites de leyes complejos, como serían aquellas que tuvieran criterio encontrado del Poder Judicial, es cuando más se requiere que una Nombre3382 calificada de los legisladores para promover aquellos cambios significativos en la legislación mediante un verdadero consenso.

Si bien esta Sala, en algunas de sus sentencias, ha establecido que no procede la consulta institucional en proyectos de ley que tienen un carácter nacional o general, este solo criterio jurisprudencial no puede bastarse para descartar la necesidad de agravar el procedimiento legislativo en la Asamblea Legislativa, cuando se trata de la Nombre3382 calificada establecida en el numeral 167, Constitucional. Esto tiene que ser dimensionado no solo referidos a temas que tienen relación con la autonomía institucional del Poder Judicial, sino especialmente, a los referidos a la incidencia directa o indirecta en la independencia judicial, que se garantiza en la Constitución, a través de la estructura orgánica fundamental del Estado. Esto, especialmente, si como en el caso que nos ocupa, ha habido diversos vicios en el procedimiento legislativo, referidos más adelante.

Es claro, que criterios para negar la consulta institucional por considerar que un proyecto de ley sea de carácter nacional o general no puede ser utilizado de forma indiscriminada, especialmente porque con dicha calificación entraría gran cantidad de proyectos de ley que tengan incidencia en el presupuesto nacional, en esta situación una gran Nombre3382 tendrían incidencia nacional que se ocupa para establecer la defensa de objetivos públicos vistos desde criterios economicistas. Al contrario, esta minoría estima que no aplica el criterio jurisprudencial citado por la mayoría, cuando se trata de proyectos de ley que podrían incidir en la organización del Poder Judicial, como órgano fundamental del Estado. Es claro que el escrutinio judicial debe ser más demandante, por los alcances más permanentes sobre la función judicial (que es universal y con plena jurisdicción sobre todas las controversias jurídicas), lo que expresa las funciones fundamentales de control, tanto y más que de las instituciones semi-autónomas y autónomas, porque tiene relación con la especialidad funcional e independencia de un poder de la República. El peso absoluto de la institucionalidad fundamental del Estado debe trazar los criterios del examen y escrutinio que debe hacer este Tribunal Constitucional, de modo que no se puede examinar en los mismos términos que se hace para otras instituciones autónomas, pues evidentemente las consecuencias son muy diferentes para el Estado y la población en general. Basta con señalar la Sentencia N° 2017-009551 de las 11:40 horas del 12 de junio de 2017, que estableció que:

“…en general, la función judicial es universal y tiene plena jurisdicción sobre todas las controversias jurídicas que se suscitan en el país. Universalidad se refiere a la competencia sobre todas las disputas que se sometan a los Tribunales de Justicia, y aun las que no figuran en ella o en la ley por el principio de plenitud hermenéutica (artículo 153 de la Constitución Política). Universalidad supone jurisdicción sobre todos los individuos en controversia, incluso de conformidad con los principios generales del Derecho Internacional Público y del Derecho Internacional Privado. El Poder Judicial tiene competencia para decidir definitivamente sobre todas las controversias, encausando las cuestiones de conformidad con el procedimiento respectivo del iter procesal, finalizando, por lo general, con una sentencia -forma normal de terminar el proceso- con el estado de cosa juzgada, que es una expresión del poder y función de la plena jurisdicción, universal, y que implica la prohibición de abrir de nuevo a la discusión la misma controversia, para evitar la perpetuación de los conflictos y su amenaza sobre la convivencia pacífica en sociedad. Es la lápida que prohíbe abrir de nuevo la discusión sobre los mismos hechos”.

El Constituyente por supuesto asignó un campo concreto de acción al Poder Judicial para que funciones con independencia, que se nutre y participa de todo el pensamiento occidental, inspirado en los principios de la imparcialidad y la justicia, sencillamente no se puede comparar, o asimilar a la de los entes menores del Estado, por el contrario, es claro que el artículo 167, de la Constitución Política, se ubica en consideración a la importancia institucional y su autonomía funcional en el gran esquema del Estado.

Anteriormente en esta misma sentencia, se estableció también que:

“Esto lleva al principio de legalidad funcional, que conlleva el ejercicio de las competencias constitucional del Estado, el logro de los objetivos torales de cada poder sin extenderse a los de los otros Poderes independientes y de igual rango, y al ejercer cada uno las funciones de peso y contrapeso es que pueden controlar y limitar a los otros Poderes, según lo autoriza la Constitución Política. De conformidad con la distribución de las funciones fundamentales del Estado, cuando el Legislativo dicta las leyes, está sujeto a la supremacía de la Constitución Política y a los límites consagrados por la Constitución Política, que condiciona definitivamente su regularidad y permanencia en el tiempo, además de no poder aplicarlas directamente; en cuanto al Poder Ejecutivo, no podría dejar de aplicar e implementar las disposiciones que le dicta el Poder Legislativo, ni dejar de observar las disposiciones de la Carta fundamental; finalmente, el Poder Judicial no podría resolver a contra-pelo de las normas aplicables a un caso concreto, salvo por el conflicto con el principio de jerarquía normativa, el principio de la supremacía de las normas, de las leyes, tratados y de la Constitución Política, quedando sujeto a éstas. De conformidad con los artículos 10 y 152 y siguientes de la Constitución Política debe velar por la regularidad de toda la legislación, por lo que no podría aplicar normativa inválida o inconstitucional, pues aunado a la función fundamental de impartir justicia, debe velar para que toda acción u omisión no vulnere los principios esenciales de todo Estado social y democrático de Derecho, entre ellos: los principios de legalidad, jerarquía normativa, el respeto de los derechos y libertades fundamentales de la población. En consecuencia, el Poder Judicial interpreta y aplica finalmente la Constitución Política, teniendo el control de constitucionalidad de las normas y omisiones -el monopolio del rechazo- cuando la legislación es contraria a ésta, así cuando vulneran los derechos fundamentales, porque naturalmente es el último garante del principio de legalidad, el defensor último de los fines y objetivos del Estado y de la realización, por el Derecho caso por caso, del bienestar del ser humano”.

Ahora bien, la sentencia aborda las generalidades del Fondo y su desarrollo legal a partir de los inicios del Siglo pasado, en sintonía con la Sentencia N° 2018-5758 de las 15:40 horas del 12 de abril de 2018, para explicar el desarrollo legal de la seguridad social y del régimen previsional del Poder Judicial. Sin embargo, se debió hacer referencia a que las falencias del sistema sirvieron de acicate también a nivel constitucional, pues hubo otras que se gestaron para garantizar mayor estabilidad institucional y a favor de la independencia judicial. De este modo, debe hacerse referencia a la materialización de una de las conquistas más importantes para la institucionalidad del país, la que se obtuvo con la reforma al artículo 177, Constitucional, con la que se garantizó la independencia económica del Poder Judicial. Cabe entonces plantear, que si las dinámicas institucionales y sociales de ese entonces fueron importantes, aún lo fueron más las de la enmienda a la Constitución Política, las que no son nada despreciables, pues estuvieron dirigidas a fortalecer el Poder Judicial, y con el mismo peso, producir protección dentro del funcionariado. Las dinámicas económicas y jurídicas dicen tanto o más, pues pese a las conquistas legales y por la cantidad de problemas que existían en la época previa a la reforma constitucional, se gestó desde el seno de la Corte Plena, y fue acogido por la Asamblea Legislativa, el mejoramiento sustancial de aquella independencia económica del Poder Judicial en la propia Constitución Política. No cabe duda que las protecciones que el Constituyente derivado estableció en la reforma, se distribuyen igualmente sobre la estabilidad del funcionariado judicial. Así, fueron contempladas las limitaciones en las instalaciones e infraestructura, dotar de mejores herramientas de trabajo, mejoramiento de los salarios, más recursos para el Régimen de Jubilaciones y Pensiones del Poder Judicial, entre otros. Los reclamos de los accionantes debieron encontrar eco en esta vía de la acción de inconstitucionalidad, las que al inicio de este voto salvado se enumeran algunas. La independencia judicial se defiende con las herramientas que precisamente dotó el Constituyente, dentro de la cual las democracias más consolidadas del mundo se dedican a producir los instrumentos de protección a la independencia judicial y económica, siendo una de ellas la votación calificada en caso de que un proyecto de ley incida en la organización y funcionamiento del Poder Judicial.

En la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, esta Sala estableció que:

“VI.- CARÁCTER EXCEPCIONAL DE LA FUNCIÓN MATERIALMENTE ADMINISTRATIVA DEL PODER JUDICIAL. Si bien al Poder Judicial le corresponde, por antonomasia, el ejercicio exclusivo de la función jurisdiccional –tal y como se señaló en el considerando anterior-, lo cierto es que, también, ejerce de forma excepcional o extraordinaria funciones de índole administrativo. En ese sentido, resulta menester apuntar que la función administrativa no está constitucional ni legalmente asignada de forma exclusiva a un órgano o ente y, tampoco, posee un contenido típico que la caracterice, puesto que, como bien ha apuntado la doctrina es más fácil describir a la administración pública que definir la función administrativa por su carácter heterogéneo. Resulta claro que el ejercicio de la función materialmente jurisdiccional, requiere y precisa de toda una infraestructura administrativa que permita ejercerla de consuno con el precepto constitucional, esto es, de forma pronta y cumplida. Esto es lo que se ha denominado el “servicio público de administración de justicia”. Así, el soporte o aparato administrativo auxiliar que le permite a los jueces y tribunales dictar sus resoluciones, conforman dicho servicio, con lo cual el concepto está referido a los perfiles administrativos de la función jurisdiccional, tales como la organización y funcionamiento de los tribunales, la logística, -avituallamiento y suministros-, el manejo, gestión o administración eficiente y eficaz de los despachos judiciales para evitar las dilaciones indebidas o injustificadas en la tramitación de la causa, la función administrativa ejercida por los órganos administrativos del Poder Judicial (v. gr. resoluciones administrativas de la Corte Plena, del Consejo Superior del Poder Judicial, del Tribunal de la Inspección Judicial, del Consejo de la Judicatura y, en general, de los diversos departamentos administrativos -Dirección Ejecutiva, Proveeduría, Personal, etc.-) y auxiliares adscritos a éste como la policía represiva ejercida a través del Organismo de Investigación Judicial, el ejercicio de la acción pública por el Ministerio Público y la provisión de una defensa gratuita por medio de la Defensa Pública. No obstante, si bien esa función materialmente administrativa es desplegada por el aparato u organización de apoyo o de soporte a la jurisdiccional, debe entenderse en un sentido estrictamente excepcional, es decir, resulta admisible aquella que sea, únicamente, necesaria e idónea para coadyuvar en el ejercicio de la función, materialmente, jurisdiccional y no otra. En razón de lo anterior, por aplicación del principio constitucional de la reserva o exclusividad de jurisdicción se impone que el Poder Judicial debe utilizar y destinar la Nombre3382 de sus recursos al ejercicio de una función, materialmente, jurisdiccional.

VII.- AUTONOMÍA E INDEPENDENCIA ECONÓMICA DEL PODER JUDICIAL. Una de las grandes conquistas históricas del Estado Constitucional de Derecho costarricense, lo fue la autonomía económica del Poder Judicial lograda por vía de la reforma parcial a la Constitución Política del 7 de noviembre de 1949, mediante la Ley No. 2122 del 22 de mayo de 1957. Esta ley le adicionó a la versión original del artículo 177 de la Constitución Política un párrafo segundo, en el cual se dispuso lo siguiente:

“(…)

En el proyecto se le asignará al Poder Judicial una suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico. Sin embargo, cuando esta suma resultare superior a la requerida para cubrir las necesidades fundamentales presupuestadas por ese Poder, el departamento mencionado incluirá la diferencia como exceso, con un plan de inversión nacional, para que la Asamblea Legislativa determine lo que corresponda (…)”.

Esta reforma parcial a la Constitución fortaleció, de modo congruente con el ordinal 9° que proclama la separación de funciones, la independencia de ese Poder de la República. La enmienda constitucional partió de la propuesta formulada el 6 de septiembre de 1956 por el Magistrado de entonces Evelio Ramírez a la Corte Plena, órgano colegiado que la aprobó en la sesión celebrada ese mismo día. En la justificación de la modificación constitucional -que posteriormente pasaría a ser la exposición de motivos de la reforma en el procedimiento legislativo-, el Magistrado Evelio Ramírez, insistió en la necesidad de asignarle al Poder Judicial un mínimo o “suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico”, para superar la situación lamentable de ese Poder de la República al haber recibido en los siete años precedentes a 1956 tan solo un porcentaje promedio del 2.75% en relación con el Presupuesto General de Ingresos. El propósito manifiesto del Magistrado gestor de la reforma constitucional y de la Corte Plena al acoger su propuesta, fue contar con mayores recursos financieros para diversificar y fortalecer los distintos ordenes (sic) jurisdiccionales, incrementar el número de juzgados y tribunales y del personal necesario para atender la demanda del servicio, reformar y mejorar los procesos, dotar de una adecuada infraestructura y recursos materiales a los juzgados y tribunales, mejorar los salarios de quienes se dedican a la delicada y difícil tarea de administrar justicia y su régimen de jubilaciones o pensiones, todo en aras de procurar una justicia más pronta y cumplida. En ese sentido, el Magistrado Evelio Ramírez efectuó consideraciones tales como las siguientes:

“(…) la Corte Suprema de Justicia, conociendo mejor que nadie las verdaderas necesidades del Poder Judicial, elaboraría su propio anteproyecto de Presupuesto tomando en cuenta los factores que, a su juicio, exijan variaciones económicas dentro de un criterio honesto, racional y justo. Y no sólo atendería a la debida instalación de sus múltiples oficinas –que hoy ofrecen un aspecto casi ruinoso en toda la Nación-, sino que también les suministraría las máquinas de escribir, muebles adecuados y los demás medios materiales, indispensables para laborar con la mayor eficiencia posible. Además se podría pagar en forma más equitativa a todos los servidores judiciales (…) El mismo fondo de Jubilaciones y Pensiones –cuya estabilidad está seriamente amenazada- podría ser reforzado de esa partida global (…) El porcentaje promedio que ha correspondido al Poder Judicial en los últimos siete años, ha sido de un 2.75 por ciento, en relación con el Presupuesto General de Ingresos (…) La experiencia ha venido a demostrar que el indicado porcentaje resulta del todo insuficiente para el adecuado funcionamiento del Poder Judicial. Para darse cuenta de ello, basta reparar en los edificios inadecuados que ocupan casi todos los tribunales de la República, en la lentitud con que se tramitan los diversos asuntos judiciales, debido al escaso número de tribunales y del personal que tienen los que funcionan en la actualidad, en el insuficiente número de máquinas de escribir y de otros muebles que son de imperiosa necesidad, en las bajas dotaciones de los servidores judiciales, etc. etc. (…)”.

Por su parte, la Comisión legislativa especial nombrada para dictaminar el proyecto de reforma al artículo 177 de la Constitución, en primera legislatura, en su informe del 9 de octubre de 1956 (visible a folios 20-21 del expediente legislativo), estimó lo siguiente:

“Esta reforma constitucional –con la cual se afianzará definitivamente la autonomía del Poder Judicial en el aspecto económico hará posible que en el futuro encuentren solución adecuada los múltiples problemas que en la actualidad confronta dicho Poder por la limitación de los recursos económicos asignados a él en los presupuestos nacionales. Esos problemas vienen de muy atrás y se agravan día con día como consecuencia del crecimiento y desarrollo de la población que demanda cada vez más servicios de administración de justicia. Las oficinas judiciales no cuentan con personal suficiente para atender los muchos problemas a diario surgidos y en lo material, se hallan con muy pocas excepciones, alojadas en locales totalmente inadecuados y sin mobiliario ni equipos suficientes (…) Las remuneraciones de los servidores judiciales son, por otra parte, exiguas de tal modo que la carrera judicial no ofrece estímulo ni aliciente alguno a quienes deseen iniciarse en ella y esto aleja en muchos casos a elementos de vocación y capacidades que podrían prestar, en otras condiciones, sus servicios como Alcaldes, Jueces o Magistrados”.

Consecuentemente, la idea rectora que inspiró la reforma constitucional de 1957 lo fue fortalecer la organización y funcionamiento del Poder Judicial, para que ejerciera de forma eficiente y eficaz su función esencial de impartir o administrar justicia. Bajo esta inteligencia, cualquier disposición del legislador ordinario tendiente a adscribir en la organización del Poder Judicial órganos que ejercen competencias materialmente administrativas ajenas o que no atañen a la función jurisdiccional, resulta inconstitucional, en cuanto vulnera la autonomía financiera y, por consiguiente, la independencia del Poder Judicial, al desviar el uso y empleo, aunque lo sea en un pequeño porcentaje, del mínimo presupuestario garantizado a éste para otros fines. Se puede afirmar, entonces, que el párrafo 2° del artículo 177 de la Constitución Política, adicionado por la Ley No. 2122 del 22 de mayo de 1957, es una clara garantía institucional, puesto que, al consolidar la autonomía e independencia financiera del Poder Judicial garantiza un ejercicio efectivo, por parte de cualquier persona, del derecho fundamental establecido en el artículo 41 de la Constitución Política de acceder la jurisdicción y de obtener una justicia pronta y cumplida”.

La afirmación de que no se estén sustrayendo competencias administrativas esenciales de organización y conexas con la función jurisdiccional es muy relativo, si como se explicó atrás, se está modificando un aspecto organizativo y de la administración del personal del Poder Judicial. Con ello, se ignora la historia de la enmienda constitucional, donde sí fue contemplado como justificación para pasar la reforma al artículo 177. La Nombre3382 afirma que se trata del mismo contenido esencial de un instituto jurídico, pero al hacerlo la ley elimina la administración de las pensiones en el Consejo Superior del Poder Judicial, para otorgarla a una Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial. Es cierto, que se mantiene dentro del Poder Judicial, pero ahora en un órgano desconcentrado, lo que, evidentemente, toca una parte esencial del gobierno del Poder Judicial (artículos 152 y 156, Constitucionales). Hay un cisma que produce afectación a la organización del Poder Judicial, si se quiere en forma lata, en la capacidad de organizarse, en el manejo y administración del fondo, para el ejercicio de los derechos de la seguridad social del personal del Poder Judicial, que vale decir, es contrario al criterio de la Corte Plena, por la forma omisa de realizar una consulta institucional, y por ignorar su opinión en contra del principio de la legalidad funcional de un Poder de la República. Recuérdese que la reforma al artículo 177, Constitucional, venía atribuida con la visión de reforzar la independencia judicial, incluida la de sus funcionarios, dentro de la cual estaría incluida la administración de fondo de pensiones. De hecho, el reconocimiento de algo tan importante, que tímidamente fue incardinado posteriormente en la Constitución Política de 1949, no llegó tan lejos para incluir -explícitamente- la irreductibilidad de los salarios de los funcionarios judiciales, como en otras latitudes, sin embargo si funcionó en nuestro país porque le permite gozar de los índices de independencia judicial que Nombre2042 ha disfrutado comparativamente a nivel global, que es fruto claramente de la independencia económica del Poder Judicial. Esto ha sido en parte gracias al reconocimiento del régimen de empleo público que se fue consolidando a lo largo de la vida republicana de este país.

La Sentencia N° 1996-03575 de las 11:18 horas del 12 de julio de 1996, indicó sobre:

“… el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones”.

Por Sentencia N° 1998-005795 de las 16:12 horas del 11 de agosto de 1998, que estableció que:

“De lo dispuesto en el artículo 154 de la Constitución Política, -que dice-:

"El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos" deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros "influyentes" de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independecia (sic) de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constiuye (sic) una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes”.

Por Sentencia N° 1998-005798 de las 16:21 horas del 11 de agosto de 1998, esta Sala estableció que:

“La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículoss 9 y 154 (sic). También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que:

"1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter.

2.- ..." La independencia del Organo (sic) Judicial se plantea hacia lo externo. El Organo (sic) Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada, a esta independencia es a la que me referiré de seguido. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Organo (sic) Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones”.

Esto no es poca cosa, toda vez que la organización y administración de la función judicial no solo no debe limitarse a la parte jurisdiccional como lo entiende la mayoría, sino que esta está complementada por otras funciones de organización, que le deberían ser respetadas como Poder de la República. Como se dijo línea atrás, la enmienda a la Constitución Política contempló no solo los aspectos jurisdiccionales, también operativos del Poder Judicial, por lo que estaría contemplado por el Constituyente originario en el artículo 167, porque desde el seno de la Corte Plena en 1956, y en la Asamblea Legislativa de 1957, adoptó desde esa época fundacional de la Segunda República, responder a las necesidades de los funcionarios en sus salarios y régimen previsional, un precepto toral para la democracia costarricense.

Es evidente, que el Fondo de Pensiones y Jubilaciones del Poder Judicial formaba parte esencial de la independencia económica del Poder Judicial de aquella época, y debe seguir siendo en la nuestra, según la doctrina del desarrollo progresivo, evolutivo y no regresivo de los derechos sociales. El Constituyente derivado, al acoger la visión de la Corte Plena, tomó un paso decisivo para receptar la gestión de forma independiente y autónoma del resto de los poderes políticos, lo que a su vez, permitió que dicha gestión y gobierno se hiciera dentro de los fines legales y constitucionales de la administración de justicia. Tampoco se puede afirmar, como lo dice la mayoría, que el reconocimiento del porcentaje constitucional del 6% haya sido llano y sin problema alguno; por el contrario, lo propio de ello es que la relación entre poderes ha sido pedregoso, áspero, abrupto, de modo que todo presupuesto se ha obtenido con gran esfuerzo o negociación oportuna de los representantes y autoridades del Poder Judicial. De hecho que el Constituyente previó tal posibilidad de negociación y consideración al establecer una segunda posibilidad de las rentas adicionales para los planes de inversión, entre otras cosas. El artículo 177, de la Constitución Política, con el 6% de los ingresos ordinarios del ejercicio económico de la República es un aspecto que ha servido de estímulo para el legislador para utilizar la órbita del Poder Judicial como un factor agregador de instituciones administrativas ajenas a la función judicial. Precisamente, la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, antes citada, termina con la declaratoria de inconstitucionalidad de normas del Código Notarial, por establecer un órgano de naturaleza administrativa como la Dirección de Notariado dentro del Poder Judicial con violación a los principios constitucionales de separación de funciones, reserva o exclusividad de jurisdicción, independencia y autonomía financiera del Poder Judicial, y el derecho a una justicia pronta y cumplida de los habitantes de la República.

En continuidad con la Sentencia N° 2017-09551 de las 11:40 horas del 21 de junio del 2017, se indicó también que:

“Por todo ello debemos reconocer que con el objeto de organizar racionalmente el trabajo, con eficacia, eficiencia, simplicidad y celeridad, toda función primaria debe estar acompañada de las otras funciones -no primarias del órgano constitucional-, y estar alineadas hacia la función primaria; es así como debe reconocerse que, tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc. Evidentemente, en el contexto costarricense sería un serio contrasentido transitar en contra de una larga tradición legislativa de confiar las atribuciones a un único Poder (que en otras latitudes no existe), pero pensando en garantizar esos controles horizontales en un Poder Judicial independiente”.

Entonces, si lo relacionado a las pensiones y jubilaciones del Poder Judicial fueron incluidos como parte de esa independencia económica del Poder Judicial como tema de fondo desde 1956, es para los suscritos una razón adicional para procurar la aplicación del artículo 167, de la Constitución Política, pues el cambio de esquema para una desconcentración del órgano administrador se vino a modificar por una ley posterior. Esto abre el mal antecedente de que, en el futuro, mayorías transitorias en la Asamblea Legislativa incursionen en otros aspectos del manejo del personal del Poder Judicial.

Otra razón es que una Nombre3382 reforzada garantiza no solo la independencia judicial desde el punto de vista institucional, sino para la persona del juez y jueza individualmente considerado, en el que se afectan los derechos económicos, sociales y culturales, establecidos a través de un régimen de la seguridad social y previsional. No se puede negar que el Poder Judicial forma parte de un todo, el “Estado”, también se debe hacer sentir su posición estratégica y clave dentro de su organización, con las funciones públicas de sus funcionarios que son altamente especializadas y apegadas al Derecho, según se describía antes en los antecedentes de este Tribunal, y cuya función es última en la solución de los conflictos y como pacificador de ellos. Esto claramente tiene un costo y sacrificio para su personal, que debe ser compensado por el “Estado”, pero más en una democracia funcional como la costarricense, que debe asumir no sólo la parte económica de su sostenimiento, sino de su protección.

La independencia judicial tiene como fin garantizar la imparcialidad judicial, lo que se comparte con la Nombre3382 del Tribunal, aunque no con la claridad que desearía esta minoría, toda vez que el problema de la reforma al artículo 177, de la Constitución Política, cristalizó la necesidad muy sentida de proteger en términos generales la institucionalidad y la administración -también- de todo lo relativo al personal del Poder Judicial, lo cual debería ser resguardado celosamente, y de las cuales no puede dispensarse la oposición jurídica de la cabeza del Poder Judicial, de frente a los efectos regresivos de la legislación que se puedan producir en un futuro. Se debe traer a colación, la regla constante de la importancia de proteger la parte de la remuneración y lo relativo al régimen de pensiones de los jueces y juezas, de sus funcionarios, en ordenamientos jurídicos más importantes del mundo.

De este modo, los suscritos magistrados consideramos que la Ley N° 9544 del 24 de abril de 2018, contiene vicios esenciales en el procedimiento legislativo que lo afectan en su totalidad, consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por Nombre3382 absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia; y, con ello, es contrario al Derecho de la Constitución. En razón de lo anterior, resulta inconducente -para los suscritos juzgadores- entrar a analizar el resto de los alegatos de fondo formulados por los accionantes contra el contenido sustancial de la ley, salvo en aquellos supuestos en los que se requirió tomar posición para que existiera voto de toda conformidad (artículo 60.2, del Código Procesal Civil), lo cual está reflejado en la sentencia de la Nombre3382 de esta Sala”.

De este modo, los suscritos magistrados Cruz Castro, Salazar Alvarado y Garita Navarro, dejamos consignado nuestras razones adicionales.- F.-) Sobre la utilización del artículo 208 bis (234 bis actual) como un vicio de procedimiento Además de los vicios de procedimiento señalados en voto salvado indicado en el anterior considerando, he considerado que además, la aplicación del art.208 bis (234 bis actual) del Reglamento de la Asamblea Legislativa, a la ley impugnada en esta acción, la hace inconstitucional.

En el mismo sentido en que lo he expresado mediante el voto número 2011-015749 de las 09:32 horas del 16 de noviembre del 2011 (con base en las consideraciones dadas en las sentencias No. 2005-398, 2007-2901 y 2008-7687), y el voto número 2012-004151 de las 16 horas del 27 de marzo del 2012, he disentido del criterio de la Nombre3382 porque estimo que el artículo 208 bis del reglamento legislativo, lesiona la Constitución Política, toda vez que la la posibilidad de aplicar un procedimiento especial, ad hoc, a un proyecto de ley, infringe el principio de seguridad jurídica, el derecho de participación política, representación, así como el principio democrático y el derecho de enmienda.

“Aceptar la posibilidad que la Asamblea aplique procedimientos especiales a la tramitación de reformas a su Reglamento y proyectos de ley, en los términos establecidos en el artículo 208 bis, sin que de previo se definieran las reglas del procedimiento a seguir, constituye una clara lesión al principio de seguridad jurídica y al principio democrático, pues esta sería la única forma en que los diputados conocieran previamente y con suficiente antelación el procedimiento al cual se iban a sujetar y así ejercer los mecanismo de participación y control correspondientes. He señalado que, si el legislador no establecía de manera clara las reglas procedimentales para aplicar lo pretendido en el artículo 208 bis, omitiendo establecer regulaciones o prácticas legislativas, incurría en una evasión o incumplimiento de sus deberes constitucionalmente asignados. El artículo 208 bis, en los términos en que está redactado, supone que cada vez que las mayorías lo decidan pueden, como ya está sucediendo, por vía de moción de orden, darle un trámite de excepción al proyecto de ley que se tramite y su discusión quedaría a la luz de procedimientos no establecidos en el Reglamento, es decir, en medio de una situación de inseguridad jurídica. Dejar al arbitrio de una Nombre3382 el procedimiento que se quiera aplicar en cada caso concreto, sin que de antemano sea puesto en conocimiento de la totalidad de los miembros del Parlamento, causa una lesión al principio democrático en perjuicio de las minorías, en el tanto nada garantiza que bajo el panorama propuesto las minorías no se vean afectadas en cuanto al ejercicio de los derechos constitucionales de sus representantes en el Congreso.

Lo sucedido en el procedimiento aprobado para conocer el proyecto consultado, es un claro ejemplo de lo ya señalado, ya que por tratarse de una moción de orden, en principio, no requiere ser publicitada con suficiente antelación, independientemente de su complejidad. Tampoco proceden las mociones para modificarla, ya que tendría que tratarse de una propuesta nueva, para lo cual las otras fracciones cuentan con un tiempo sumamente corto, casi inmediato y una vez aprobada la moción por las mayorías, no tiene otra opción que sujetarse a la limitada participación que se les concedió en el procedimiento creado. También he considerado en esta hipótesis, que se conculca el derecho de enmienda.

Todo diputado ostenta el derecho constitucional de participar en el proceso de formación de la ley, y así, influir en el contenido definitivo de ésta. Ciertamente la Asamblea Legislativa tiene potestad para disponer su reglamentación, como lo sería establecer procedimientos especiales, sin embargo, la forma en que se están autorizando resulta lesiva del principio de seguridad jurídica, el derecho de participación política, el de representación, así como el principio democrático y el derecho de enmienda de los diputados, en el tanto la omisión de reglamentar dichos procedimientos con la antelación y la participación necesaria por parte de todos los diputados hace nugatorios los mismos. A mayor abundamiento se transcribe el voto salvado que he suscrito en la sentencia mencionada, del año 2012:

“IX.-VOTO SALVADO DE LA MAGISTRADA Nombre4607 Y LOS MAGISTRADOS Nombre4608 Y CRUZ, CON REDACCION DEL SEGUNDO. La inconstitucionalidad el artículo 208 bis del Reglamento de la Asamblea Legislativa, así como su aplicación a diversos procedimientos legislativos, ha sido objeto de reiterados cuestionamientos ante esta Sala, en los cuales esta Sala, por mayoría, ha considerado su conformidad con la Constitución, a partir de la sentencia 2008-7687, adoptada con el voto salvado de la Magistrada Nombre4607, el Magistrado Cruz y el magistrado Nombre4608, que reiteramos en esta ocasión y declaramos con lugar la acción por las siguientes razones:

Como punto de partida, es preciso reiterar lo expresado por esta Sala en la sentencia número 2011-04778 de catorce horas treinta y un minutos del trece de abril de dos mil once, en cuanto a la naturaleza del Derecho Parlamentario y los límites de la competencia de la Sala en materia de procedimiento legislativo:

“Naturaleza del Derecho Parlamentario y límites a la competencia de la Sala en materia de procedimiento legislativo. La misión fundamental de los parlamentos es la de adoptar decisiones con la participación del conjunto de fuerzas políticas que representan los diversos sectores de la sociedad civil. El derecho parlamentario cumple una función instrumental a ese fin -aunque tiene también una función política-, de facilitar y ordenar ese proceso. Este derecho tiene la característica de que surge producto de la “interna corporis”, de la capacidad de autonormatividad y dinámica propia de los parlamentos. En ese sentido no es un derecho que se crea premeditadamente, sino que se descubre, que nace de la práctica, por lo tanto el aspecto consuetudinario (la costumbre) e interpretador tienen gran importancia. En ese sentido, la potestad de autogobierno de los Parlamentos tiene una sólida tradición y justificación histórica. El derecho parlamentario se caracteriza por ser espontáneo, dinámico y flexible. Se nutre de la cotidianeidad, de la realidad política en que opera y donde se producen transformaciones constantes que hacen necesarias respuestas normativas, muchas veces contrarias a los dogmas clásicos de otras ramas jurídicas, como es el caso por ejemplo, del principio de inderogabilidad singular del reglamento, que tiene un tratamiento distinto al del derecho administrativo, y cede –en algunas ocasiones- en el ámbito parlamentario a la dinamicidad que exigen los procedimientos parlamentarios. Su límite, desde luego, está en la Constitución, en los principios y valores del régimen ideológico en el que opera. Por esa razón esta Sala ha reconocido que su función en materia de procedimiento legislativo es únicamente la de declarar, aquellos vicios sustanciales, que violen los principios y valores constitucionales aplicables a la materia, pues de lo contrario estaría afectando la capacidad autonormativa y funcional del parlamento (interna corporis), distorsionando su papel de guardián de la supremacía constitucional, por el de una especie de senado Ad hoc (sentencia número 2007-9699, de las diez horas del cuatro de julio de dos mil siete). De esta forma, como lo señaló este Tribunal en la sentencia 2005-07961, de las diecisiete horas cincuenta minutos del veintiuno de junio de dos mil cinco:

“La autodeterminación del Parlamento sobre su accionar interno -reconocida en forma reiterada por este Tribunal-, "interna corporis", es una de sus potestades esenciales expresamente reconocida por la Constitución Política en su artículo 121 inciso 22), y que resulta consustancial al sistema democrático. El objeto perseguido con la atribución de la competencia para autoorganizarse de la Asamblea, es la de que por su medio sean regulados sus procedimientos de actuación, organización y funcionamiento y en consecuencia su organización interna dentro de los parámetros que exigen los principios, democrático, de igualdad y no discriminación, con todos sus derivados. Esta potestad se desarrolla con absoluta independencia de los otros órganos del Estado –en virtud del principio establecido en el artículo 9 de la Carta Fundamental-, y tiene como límites: el acatamiento del Derecho de la Constitución, es decir, al conjunto de valores, principios y normas constitucionales, dentro de los que están los mencionados supra, el respeto a los principios de razonabilidad, racionabilidad y proporcionalidad, de tal forma que quienes ejerzan potestades públicas no pueden por acción, omisión o simple actuación material no fundada en un acto administrativo eficaz, violentar o amenazar los derechos fundamentales, toda vez que en un Estado democrático existe una constitución de la libertad, cuyo objeto es garantizarle al individuo el disfrute y goce pleno de los derechos humanos los que se encuentran actualmente reconocidos en las Constituciones Políticas de la Nombre3382 de los países y en los tratados internacionales de derechos humanos (Derecho Internacional de los Derechos Humanos). No es legítimo entonces, utilizar las potestades para otros fines no asignados por el ordenamiento jurídico (vicio de desviación de poder) igual o más allá de lo razonable (vicio de exceso de poder). Dicho lo anterior, estima la Sala que no debe interferir con el derecho de autorregulación del Parlamento, salvo que, según se expuso, se viole alguno de los principios señalados, que en este caso concreto, implicarían la afectación del derecho de enmienda, entendido como el mecanismo de participación que tienen los diputados para influir durante el proceso formativo de la ley. De esta forma, las potestades de la Sala en esta materia son ejercidas bajo la perspectiva de un árbitro, que modera y contiene excesos pero no interfiere con una potestad constitucional intrínseca otorgada a otro órgano constitucional, de modo que sólo frente a violaciones evidentes o groseras, de los principios constitucionales que rigen el derecho parlamentario, sería legítima su intervención. El parlamento tiene derecho en ejercicio de su propia potestad de autorregulación, de conciliar o equilibrar, frente a situaciones concretas, no sólo el derecho de enmienda, sino también los otros principios de rango constitucional que también vinculan su actuar, como el de respeto a las mayorías y el de razonabilidad, es decir, que la armonización de todos y cada uno de los principios constitucionales que deben coexistir durante el procedimiento legislativo, es una competencia propia del Parlamento y concretamente del Director del debate y de los diputados, y cabe suponer que tales funciones se realizan con apego al ordenamiento y sus principios […]”. (El resaldado no es del original).

Dicha sentencia enfatiza que la intervención de la Sala en materia de procedimiento legislativo, conforme a lo señalado, sólo debe darse:

“[…] en caso de la utilización de estas potestades con evidente abuso de poder, que resulte en la anulación de un derecho y no en su armonización con el resto de los principios constitucionales del derecho parlamentario [...] Lo contrario implicaría a nuestro juicio un irrespeto a la potestad de autorregulación y al principio democrático. No debe entonces la Sala constituirse en una instancia de sustitución del ejercicio de potestades constitucionales y del debate y diálogo político, salvo que, como se indicó… se suprima, o anule el contenido de algún derecho fundamental.” El principio democrático. Nuestro voto minoritario da la razón al accionante, por los mismos fundamentos ya expresados en los votos salvados a la sentencias número 2005-398, 2008-07687 y 2007-2901 de 17:30 hrs. de 28 de febrero de 2007, partiendo del principio democrático, cuyo respeto resulta esencial para cualquier examen de la conformidad o disconformidad con la Constitución, de cualquier norma o acto. Sobre el particular, esta Sala ha expresado, en forma unánime, que:

“lo que el procedimiento legislativo pretende es asegurar el cumplimiento del principio democrático dentro de una sociedad que lo ha adoptado como propio de sus instituciones políticas. Por ser la democracia perfecta un ideal inalcanzable, el principio democrático se constituye en el parámetro que permite deducir el grado de proximidad que alcanza una determinada sociedad, en un momento histórico determinado, respecto del ideal y de su vocación, por acercarse al máximo posible al mismo. Como mínimo, el principio democrático exige respeto de los principios de participación y representación política –incluyendo todo lo que concierne al respeto de las minorías - base de nuestro sistema político. Este último se desdobla en aspectos tales como la legitimidad de los medios empleados para la designación de los diversos representantes y – no menos importante -, la posibilidad de oponerse, mediante el uso de medios legítimos, a la voluntad mayoritaria por parte de los grupos que representan las minorías. A partir de las anteriores observaciones, puede decirse que son inconstitucionales las violaciones del procedimiento que constituyan lesiones al principio democrático, dirección ineludible de la actividad parlamentaria. Asimismo, constituyen infracciones sustanciales, los trámites legislativos que por acelerados o impetuosos, provoquen debates que quedan ayunos de un proceso reposado en calidad y reflexión, que además, adolezca de una amplia proyección de la actividad legislativa, tal como lo garantiza el artículo 117 de la Constitución Política. Además, se han considerado vicios sustanciales del procedimiento, la omisión de publicación y la omisión de realizar las consultas obligatorias establecidas constitucionalmente. En cuanto al primer aspecto, al ser la Asamblea Legislativa un órgano representativo de la comunidad nacional, la publicidad de los procedimientos parlamentarios es esencial, pues la soberanía reside en el pueblo y los diputados solamente son sus representantes (artículo 105 constitucional), por ello su actividad debe, necesariamente, trascender a toda la comunidad, a tal punto que algunos especialistas en Derecho constitucional lo definen como un órgano de publicidad” (sentencia número 2012002675 de once horas y cincuenta y dos minutos del veinticuatro de febrero del dos mil doce).- Nombre2042 es una democracia representativa, lo cual no implica que los gobernantes de un determinado momento histórico, puedan tomar sus decisiones, sin escuchar la voz de quien les ha dado tal mandato, es decir, la voluntad del pueblo como poder soberano. Valga esta aclaración, puesto que al no existir un mecanismo que se hubiere utilizado para intuir la voluntad ciudadana, el único mecanismo posible en una democracia, es abrir las puertas del diálogo, de la discusión pausada, reposada, con apertura, pues de lo contrario, correríamos el riesgo de caer en una “tiranía democrática”, violando de forma grosera el principio democrático, que es el que garantiza a los habitantes de nuestro país que los intereses de la Nación serán resguardados con celo y para el bien de todos. Es menester indicar, para los efectos de este razonamiento, que una cosa es una reforma del Reglamento, que busca ordenar y ajustar a los tiempos (bipartidismo-multipatidismo) en su quehacer cotidiano, para que el Poder Legislativo sea más efectivo en la regulación de las situaciones que acontecen en el país, y otra, generar reformas a un artículo específico, para la tramitación de un caso concreto. Nuestra Carta Fundamental no regula la forma en que debe ser reformado el reglamento la Asamblea Legislativa, por lo que este mismo texto normativo es el que ha tenido que ir reglamentando los procedimientos que se han estimado convenientes y acordes con el Derecho de la Constitución, lo que resulta esencial para garantizar la seguridad jurídica, el derecho de representación y la tutela del principio democrático dentro del procedimiento legislativo. Resulta indiscutible la potestad que tiene ese órgano para dictar las normas de su interna corporis, prevista no solo en la carta Fundamental en el inciso 22) del artículo 121, sino también consustancial al sistema democrático y específico de la Asamblea Legislativa como poder constitucional. Por ende, también la Sala ha reconocido esta potestad autorreguladora y por ello, desde esa perspectiva, se ha considerado, claramente, que el Parlamento tiene potestad para establecer procedimientos especiales, si a bien lo tiene, pero que éstos deben ser definidos de manera expresa y detallada, ya que, de lo contrario, aceptar la posibilidad de que la Asamblea aplique procedimientos especiales a la tramitación de reformas a su Reglamento y proyectos de ley, en los términos establecidos en el artículo 208 bis, sin que de previo se definan las reglas del procedimiento a seguir, constituye una clara lesión al principio de seguridad jurídica y al principio democrático, pues según el criterio externado, es la única forma en que los diputados conozcan previamente y con suficiente antelación el procedimiento al cual se van a sujetar y así ejercer los mecanismos de participación y control correspondientes.

Seguridad jurídica. Si el legislador no establecía de manera clara las reglas procedimentales para aplicar lo pretendido en el artículo 208 bis, u olvidaba establecer regulaciones o prácticas legislativas, incurría en una evasión o incumplimiento de sus deberes constitucionalmente asignados. La introducción de la norma citada al Reglamento, en los términos en que se aprobó, supone que cada vez que las mayorías lo decidan pueden, como ya está sucediendo, por vía de moción de orden, darle un trámite de excepción al proyecto de ley que se tramite y su discusión queda a la luz de procedimientos no establecidos en el Reglamento, es decir, en medio de una situación de inseguridad jurídica.

Principio de publicidad. Respecto del principio de publicidad, como bien se indicó en el voto de mayoría, el procedimiento se crea mediante una moción de orden, las cuales, según el artículo 153 del Reglamento, pueden ser presentadas en cualquier momento del debate, procediendo a su discusión inmediatamente. No requieren ser anunciadas más que en el mismo momento, lo que resulta insuficiente para que sea revisado previamente a su adopción por parte de los diputados. Es por eso, que dejar al arbitrio de una Nombre3382 el procedimiento que se quiera aplicar en cada caso concreto, sin que de antemano sea puesto en conocimiento de la totalidad de los miembros del Parlamento, causa una lesión al principio democrático en perjuicio de las minorías, en el tanto nada garantiza que bajo el régimen y aplicación del artículo 208 bis del Reglamento Legislativo, las minorías no se vean afectadas en cuanto al ejercicio de los derechos constitucionales de sus representantes en el Congreso. Una vez aprobada la moción por las mayorías, las fracciones minoritarias no tienen otra opción que sujetarse a la limitada participación que se les concedió en el procedimiento creado.

Restricción irrazonable del derecho de enmienda y otros. Todo diputado ostenta el derecho constitucional de participar en el proceso de formación de la ley, y así, influir en el contenido definitivo de ésta. Aunque se reconoce la potestad que tiene la Asamblea Legislativa para disponer su reglamentación, como lo sería establecer procedimientos especiales, sin embargo, la forma en que lo autoriza resulta lesiva del principio de seguridad jurídica, el derecho de participación política, el de representación, así como el principio democrático y el derecho de enmienda de los diputados, en el tanto la omisión de reglamentar dichos procedimientos con la antelación y la participación necesaria por parte de todos los diputados hace nugatorios los mismos.

En síntesis, el artículo 208 bis del Reglamento de la Asamblea Legislativa, constituye un elemento de ruptura total con los principios señalados y permite que, mediante una moción aprobada por dos tercios de los diputados, el Poder Legislativo pueda atentar contra su condición de órgano que garantiza la representación popular, según el diseño estructurado el Título Noveno de la Constitución Política de 1949, en detrimento sustancial del principio democrático.- Los suscritos son conscientes de las implicaciones de la anulación de esa norma, mediante la cual se han aprobado numerosas leyes, algunas de especial trascendencia para el país. Sin embargo, como la aplicación de esa norma procedimental se ha realizado al amparo de una práctica constitucionalmente consolidada por efecto de la propia jurisprudencia de esta Sala, resulta procedente aplicar, al presente caso, la eficacia “ex nunc” de la estimatoria, en virtud de la doctrina expresada en la sentencia 1-92 de 14:00 hrs. de 7 de enero de 1992, y repetida en la sentencia 2-92, de 14:15 hrs. del mismo día, en el sentido de que:

"...la interpretación que a partir de la citada resolución da la Sala al artículo 195 incisos 4 y 7 de la Constitución Política, en su función de intérprete de la Carta Fundamental y a cuyos precedentes y jurisprudencia se les reconoce fuerza vinculante "erga omnes", no genera "per se" la inconstitucionalidad de las demás reformas aprobadas con anterioridad a esa sentencia y que no hubiesen obtenido Nombre3382 calificada en los tres debates de las dos legislaturas. Por el contrario, todas ellas se incorporaron a la Carta Fundamental al amparo de una práctica constitucional consolidada, desde la decisión no impugnada del Presidente en sesión del 29 de octubre de 1962, que debe entenderse corregida a partir de la nueva interpretación establecida por la Sala, por lo que sus efectos se circunscriben exclusivamente a las que se produzcan en el futuro, pero nunca entender que por su medio pueden ser afectadas otras anteriores, pues de ser así se violentaría el principio de "seguridad jurídica". Por consiguiente, los criterios correctivos que en materia de reformas constitucionales emita esta Sala en ejercicio del control preventivo de constitucionalidad, deben entenderse con efectos ex nunc y no ex tunc, todo ello dentro de la filosofía que recoge la Ley de la Jurisdicción Constitucional, en el capítulo referente a las consultas legislativas de constitucionalidad y el principio de seguridad jurídica, antes referido".

Aunque el anterior criterio ha sido sostenido por la Sala con relación a criterios correctivos en materia de reformas constitucionales emitidas en el ejercicio del control previo de constitucionalidad, no solamente es válido, sino necesario, aplicarlo al presente caso, ya no en el ejercicio del control consultivo, sino en un caso contencioso, por dos razones: la primera, porque en virtud de que la Constitución y, derivada de ella, la jurisprudencia de la Sala, son el fundamento y raíz de la seguridad jurídica, tanto para los Poderes Supremos como para todos los entes públicos, los particulares e incluso, para terceros Estados mediante la adopción de acuerdos y tratados, cuando el Poder Legislativo ha adoptado acuerdos y aprobado leyes mediante la aplicación de reglas de procedimiento constitucionalmente válidas en el momento de su aplicación y con el respaldo del Tribunal Constitucional, se derrumbaría la seguridad jurídica si en casos como el presente, al invertirse la prevalencia de un criterio sobre la constitucionalidad de una norma procedimental aplicada de buena fe por el Poder Legislativo, en forma reiterada, a lo largo del tiempo, tuviera un efecto ex tunc, como en principio lo suelen tener las declaratorias de inconstitucionalidad de normas sustantivas, incluso de las propias reformas constitucionales. En segundo lugar, el párrafo segundo del artículo 91 de la Ley de la Jurisdicción Constitucional prevé que: “La sentencia constitucional de anulación podrá graduar y dimensionar en el espacio, el tiempo o la materia, su efecto retroactivo, y dictará las reglas necesarias para evitar que éste produzca graves dislocaciones de la seguridad, la justicia o la paz sociales”, por lo que en este caso resulta necesario, a fin de evitar esas graves dislocaciones, dimensionar los efectos de la estimatoria, potestad de la cual ya ha hecho uso esta Sala en diversas ocasiones (v. por ejemplo, la sentencia número 01698-12 de doce horas doce minutos del cinco de marzo de mil novecientos noventa y nueve, 3410-92 de catorce horas cuarenta y cinco minutos del diez de noviembre de mil novecientos noventa y dos y 2010-021258 de catorce horas del veintidós de diciembre de dos mil diez.). Por lo anterior, no ha lugar a la pretensión de los diputados Manrique Oviedo, Jeannette Ruiz, Ana Eugenia Venegas y Gustavo Arias Navarro para que, en el evento de que se declare inconstitucional el artículo 208 bis del Reglamento Legislativo, se declaren inconstitucionales todas las leyes aprobadas mediante el procedimiento especial previsto en esa norma sino que se dimensionan los efectos de la sentencia en el sentido de que la inconstitucionalidad no afecta, en este caso, las leyes y acuerdos aprobados mediante procedimientos realizados en aplicación de la norma impugnada, salvo aquellos procedimientos legislativos que no han sido aprobados en primero ni en segundo debate a la fecha de publicación del aviso respectivo.-“ Así entonces, siendo que he considerado que el artículo 208 bis del Reglamento de la Asamblea Legislativa es inconstitucional, se deriva de ello que también lo sería, por la forma, los proyectos de ley que se hayan aprobado en aplicación de dicha norma, tal como sucede con la ley impugnada.

En conclusión.- Conforme a las razones de procedimiento indicadas (violación al principio de razonabilidad técnica) y en las razones adicionales de procedimiento (violación al artículo 167 constitucional, al principio de independencia judicial y por utilización del procedimiento abreviado) considero que el plazo breve establecido en la norma impugnada es violatorio del derecho a obtener una pensión digna, proporcional y razonable, del principio de igualdad, del principio de progresividad de los derechos sociales, del principio de confianza legítima y de situaciones jurídicas consolidadas, además de normativa internacional.

Telf6218 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: PENSIÓN Subtemas:

NO APLICA.

Voto salvado del magistrado Salazar Alvarado y de la magistrada Picado Brenes.

Con el debido respeto, suscribimos este voto salvado y nos separamos del voto de mayoría, con los siguientes argumentos:

A.- Sobre la referencia al procedimiento legislativo seguido en la Ley N° 9544, en cuanto a la falta de consulta al Poder Judicial y a la omisión de consulta institucional del artículo 167, de la Constitución Política, así como del artículo 208 bis, del Reglamento de la Asamblea Legislativa.

Sobre estos puntos, consideramos innecesario repetir los argumentos, en cuanto al procedimiento legislativo seguido a la Ley N° 9544 del 24 de abril de 2018, que fueron abordados en la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018 (voto salvado de los magistrados Cruz Castro, Salazar Alvarado y Hernández Gutiérrez), reiterado en la Sentencia N° 2021-11957, de las 17:00 horas del 25 de mayo de 2021 (voto salvado de los magistrados Salazar Alvarado y Hernández Gutiérrez). De igual manera, esos argumentos ya constan en el expediente, específicamente en la resolución interlocutoria N° 2022-008712 de las 9:10 horas del 20 de abril de 2022, por lo que hacemos remisión a las razones ahí debidamente expresadas y consignadas. Sin embargo, para una mejor comprensión, dejamos como epítome de esas sentencias, que el vicio de procedimiento afectaba al Proyecto de Ley N° 19.922, respecto a la violación del artículo 167, de la Constitución Política; y, en consecuencia, en su totalidad la Ley N° 9544, y que, solo era necesario la toma de una posición para que existiera voto de toda conformidad (artículo 60.2, Código Procesal Civil). Así, por el fondo, abordamos lo relacionado a la omisión del legislador de no haber tomado en cuenta los factores de tiempo servido, género y edad, para la asignación diferenciada de pensión entre hombre y mujer, y la desestimación de esos reclamos por la ausencia de estudios técnicos en el contexto concreto costarricense.

B.- El problema de la razonabilidad y proporcionalidad.

Desde el punto de vista del Derecho Constitucional, es claro que toda legislación que apruebe la Asamblea Legislativa debe estar amparada al Estado Social de Derecho. Asumir lo contrario implicaría aceptar que el aparato estatal estaría autorizado y legitimado para adoptar medidas injustas y arbitrarias, que por definición serían contrarias a los derechos fundamentales y al bien común. Afortunadamente, por jerarquía del Derecho de la Constitución, su normativa, por la potencia y resistencia de normas superiores del ordenamiento jurídico, son exigibles y esto tiene implicaciones formales en el proceso de formación del derecho, y materialmente resguardando el contenido de los derechos fundamentales. Es así, que la conformidad de todas las actuaciones del poder público (leyes y actos públicos en general) requieren estar en conformidad con la ideología de la Constitución Política, y las obligaciones vinculantes de la normativa internacional sobre derechos humanos, incluida aquella legislación internacional laboral, y los principios generales del Derecho Internacional.

El problema que se endilga al Transitorio impugnado es si carece de fundamento técnico que respalde el plazo de dieciocho meses otorgado para la aplicación de la nueva reforma, lo que involucra la razonabilidad técnica de la norma en cuanto a la proporcionalidad entre el medio utilizado y el fin buscado con la norma, dentro del contexto de regímenes de pensiones.

En efecto, para lo anterior, debemos traer a colación, el dictamen de esta Sala Constitucional, N° 2017-0011714 de las 12:00 horas del 26 de julio de 2017, en cuanto analizó un proyecto de ley que permitía el traslado de personas aseguradas bajo el Régimen de Invalidez, Vejez y Muerte administrado por la Caja Costarricense de Seguro Social al Magisterio Nacional; y, en esa ocasión, se estableció que:

“En esta materia, es menester que la Asamblea Legislativa cuente con estudios técnicos que demuestren que la entrada en vigencia de la Ley no afectará la sostenibilidad financiera del régimen de la Caja Costarricense del Seguro Social, máxime en la situación actual, donde se ha cuestionado su sostenibilidad, tal y como ha sido de conocimiento de la opinión pública. A falta de estudios técnicos en esta dirección, y teniendo por demostrado que el proyecto de ley conlleva una afectación a la Reserva del régimen, no cabe duda que se ha producido una vulneración al numeral 73 constitucional. Muy distinta sería la situación si existieran los estudios técnicos, pues en caso de que se demuestre la no afectación a la sostenibilidad financiera del régimen de Invalidez, Vejez y Muerte, el legislador, constitucionalmente hablando, no tendría impedimento para ejercer la potestad de legislar. Como es bien sabido, este Tribunal ha exigido en materia ambiental la necesidad de que haya estudios técnicos para reducir áreas protegidas, y ha concluido que esta omisión constituye un vicio de carácter esencial en el procedimiento legislativo (véase la opinión consultiva n.° 2012-13367). Siguiendo esa misma doctrina, se evacua la consulta legislativa facultativa de constitucionalidad, en el sentido que el Proyecto de Ley denominado: "Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional", expediente legislativo número 17.561, es inconstitucional por violación al artículo 73 de la Constitución Política, toda vez que carece de un estudio que determine técnica y científicamente cuál es el impacto real sobre la Reserva del régimen del Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, vicio que es de carácter esencial del procedimiento legislativo”.

Aunado a la interpretación dada por la Sala, estimamos que es importante agregar, al anterior razonamiento, que hay obligaciones internacionales concretas que obligan al país a sustentar técnicamente los cambios y reformas que afecten los regímenes de pensiones. En este sentido, los estudios técnicos son imprescindibles para demostrar que los medios utilizados son adecuados a los fines legales propuestos, sin desamparar a las personas que pudieran mantener sus derechos y expectativas legítimas.

Cuando se procura una modificación o reforma legal a un régimen de pensiones, lógicamente esta gira alrededor del interés de buscar un impacto positivo en el fondo y sus prestaciones. Pero, como sucedió con el caso anteriormente transcrito, la ausencia de un estudio técnico actuarial fue manifiesto y evidente, lo que afectó la determinación del “… impacto real sobre la Reserva del régimen de Invalidez, Vejez y Muerte, vicio que es de carácter esencial del procedimiento legislativo”. Es claro, que cuando el Estado Social de Derecho debe ejercer la iniciativa para la reforma de un régimen de pensiones, el fundamento toral es el equilibrio financiero, como está establecido en la legislación internacional, lo que se abordará en adelante. En este sentido, al eliminar los riesgos se debe demostrar que habrá un impacto positivo en la reserva, para garantizar sustentabilidad y equilibrio financiero, y la concesión futura de los derechos prestacionales. Así, corresponde al estudio técnico marcar los derroteros para sustentar las medidas que debe tomar la legislación para que una reforma sea adecuada para sustentar actuales y futuras prestaciones.

Por Sentencia N° 2020-19274 de las 16:30 horas del 7 de octubre de 2020, la Sala tuvo oportunidad para asignar la fuerza normativa del artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo, en la distribución de cotizaciones e impuestos, así como en la contribución patronal y estatal, y sostuvo que:

“… el derecho a la seguridad social a nivel internacional se debe caracterizar porque se compone de un nivel mínimo de prestaciones que comprendan al menos una atención básica de la salud, prestaciones pecuniarias de enfermedad, de desempleo, prestaciones de vejez, en caso de accidente del trabajo y enfermedades profesionales, prestaciones familiares, prestaciones de maternidad, de invalidez y de supervivencia, todo esto de conformidad con el Convenio N° 102, de la Organización Internacional del Trabajo. El derecho a la seguridad social y a la protección social se refiere al derecho a que no se pueda denegar la cobertura de la seguridad social, de manera arbitraria o no razonable, y el derecho a la igualdad en el disfrute de la adecuada protección en caso de desempleo, enfermedad, vejez o falta de medios de subsistencia, en circunstancias que escapan al control de la persona”.

Además, se indicó que:

“… el Convenio constituye un marco obligatorio de referencia para los Estados; es decir, contiene disposiciones que son la base de las regulaciones que posteriormente pueden aprobar según los diferentes tipos de coberturas a las que se obligaron. No está demás, como se ha indicado en otras ocasiones, que los Estados pueden mejorar esos estándares. Apegado a ese marco regulatorio, la Parte XIII del mencionado Convenio, contempla otras “Disposiciones Comunes” a las coberturas ofrecidas a los asegurados, entre ellas las causas de suspensión, la posibilidad de discutir judicialmente lo referido a los derechos involucrados, así como las reglas que gobiernan en general la administración. Lo que quiere decir que son reglas que amalgaman y unen algunos aspectos de las coberturas; y, en consecuencia, deben considerarse en conjunto algunos de los aspectos administrativos.

De este modo, contiene dos principios torales, el principio de la solidaridad financiera (financiación colectiva y solidaridad financiera en documentos de la Organización Internacional de Trabajo) y el principio de la responsabilidad del Estado, donde el primero enuncia la obligación contenida en el inciso 1), del artículo 71, del Convenio N° 102 indicado (…).

(…) el principio de responsabilidad del Estado en la provisión de las obligaciones prestacionales, estaría presente en el mismo artículo 71, pero en el inciso 3), del mencionado Convenio N° 102. Dicha disposición dispone:

“El Miembro deberá asumir la responsabilidad general en lo que se refiere al servicio de prestaciones concedidas en aplicación del presente Convenio y adoptar, cuando fuere oportuno, todas las medidas necesarias para alcanzar dicho fin; deberá garantizar, cuando fuere oportuno, que los estudios y cálculos actuariales necesarios relativos al equilibrio se establezcan periódicamente y, en todo caso, previamente a cualquier modificación de las prestaciones, de la tasa de las cotizaciones del seguro o de los impuestos destinados a cubrir las contingencias en cuestión”.

Es claro cómo el Estado es garante de las pensiones del país. Este numeral establece una serie de obligaciones de garantía del Estado, especialmente el referido al liderazgo en lo que se refiere al servicio de prestaciones concedidas, lo que incluye las formalidades que debe observar cuando ejerce la obligación implícita de vigilar y materializar todas las medidas que involucra la preservación de los fondos de pensiones, incluyendo aquellas correctivas”.

La obligación internacional establecida en el artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, normativa que gobierna el tema de los balances y desbalances de los fondos de pensiones y jubilaciones, obliga al Estado -como principal responsable al mantenimiento de los fondos de pensiones- a la vigilancia y control, pero referenciado con respaldo técnico.

De la norma se desprende la responsabilidad general que implica tanto cuando el Estado asume la administración de los fondos, como cuando lo hace indirectamente. En este sentido, siempre asume el compromiso internacional por velar y controlar la materialización efectiva de las prestaciones -presentes y futuras- concedidas en el Convenio. De este modo, debe ser sujeto activo en la vigilancia y control de medidas que permitan esas prestaciones.

Como los fondos de pensiones no son estáticos, el principio de responsabilidad del Estado se traduce en la permanente vigilancia y control sobre las prestaciones, de sus fluctuaciones y si los derechos se puedan mantener en el tiempo. Es decir, que se requiere mantener la suficiencia de recursos, para que el nivel de las prestaciones se pueda mantener con las primas y/o los aportes, impuestos, y con las erogaciones administrativas, obligación que le corresponde al Estado, o responsable de mantenerlas en el tiempo.

Es importante mencionar, que el artículo 71, del citado Convenio N° 102, fue toral en la sentencia de esta Sala que resolvió el problema de los impuestos solidarios y contribuciones a las pensiones de alto perfil, al aplicar el límite convencional a esas contribuciones en un 50% sobre los salarios/prestaciones. Con ello, se consideró vinculante el numeral para el Estado Costarricense, de modo que por paridad de razón, también debe ser una norma que defina y determine todo lo que debe resolverse en este asunto.

En el caso que nos ocupa, cuando se inicia la reducción de los derechos y beneficios de los regímenes de pensiones, consideramos que se corre un riesgo de que en el proceso se puedan perder algunos de ellos sin justificación clara, y que se vaya en contra de los estándares internacionales, cuando no se pueden hacer efectivos estos derechos. El Estado Social de Derecho debe permitir una lectura adecuada a la pérdida de derechos prestacionales, que si bien opera dentro de un contexto económico, debe encontrar límites, entre los cuales debe estar que no puede desconocer el tiempo transcurrido de aportes basados en los salarios y las cotizaciones. El artículo 71, de comentario, debería tratarse como una protección contra la disminución arbitraria de las prestaciones, al desmantelamiento de la protección de forma injustificada, ya sea con estudios actuariales insuficientes u omitidos, todo lo cual sería inconvencional por ir contrario a la obligación internacional, y porque los derechos también deben estar defendidos cuidadosamente para impedir la pérdida de derechos a la protección social de forma injustificada. Nos cabe la pregunta, si sólo protegen las prestaciones en curso u otorgadas? La respuesta debería ser no, para ello se requiere que los proyectos de reforma contengan una norma transitoria, pues bien el campo económico no debe estar abstraído de las implicaciones que sus decisiones tienen sobre los derechos económicos, sociales, y culturales, que también son prestaciones exigibles, razonablemente. Tanto no pueden considerarse estancos aislados entre sí, como dominado uno respecto del otro si no es a través de un ejercicio razonable y de ponderación de los derechos e intereses involucrados. No se niega la libertad de configuración del legislador; sin embargo, es importante recordar que tiene los límites establecidos en el Derecho de la Constitución (valores, principios y derechos), y más cuando se encuentra sujeto a los estudios técnicos que jurídicamente son exigibles, como lo ha establecido la jurisprudencia de la Sala.

Consideramos que las obligaciones que se desprenden de este numeral 71.3, del Convenio N° 102, exigen que la formulación de reformas legales respondan al comportamiento de los fondos y su suficiencia, y que esas enmiendas respondan a la técnica precisa y correcta en dos momentos: a) cuando fuere oportuno para ejercer un control periódico por los movimientos propios de funcionamiento y gestión, y b) en todo caso, “previamente a cualquier modificación de las prestaciones, de la tasa de las cotizaciones del seguro o de los impuestos destinados a cubrir las contingencias en cuestión”.

Lo establecido en esta norma permite asegurar las protecciones en favor de los derechos prestacionales convenidos, especialmente las otorgadas, para ceñir las reformas o enmiendas al sistema de pensiones a una técnica matemática ligada a los estudios y cálculos actuariales que reflejen la condición de un equilibrio de recursos, que es la obligación internacional que adquiere el Estado costarricense.

Al igual que se hizo en la Sentencia N° 2020-19274 anteriormente citada, en el que se acudió al Estudio General relativo a los instrumentos de la seguridad social, realizado a la luz de la Declaración de 2008 sobre la Justicia Social para una Globalización Equitativa, Informe de la Comisión de Expertos en Aplicación de Convenios y Recomendaciones (artículos 19, 22 y 35, de la Constitución de la Organización Internacional del Trabajo), Informe III (Parte 1B), sostenida en la Conferencia Internacional del Trabajo, 100a reunión, 2011, y que en esta oportunidad, también es importante transcribir lo siguiente:

“465. La Comisión desea subrayar que la correcta gestión financiera y jurídica de los sistemas de seguridad social que son objeto de reformas podría facilitarse considerablemente, si debiese realizarse una evaluación actuarial antes de su presentación ante los parlamentos. La Comisión ha observado que, con demasiada frecuencia, los cambios en la legislación de seguridad social se realizan apresuradamente teniendo en cuenta intereses inmediatos sin haber realizado previamente un análisis sustancial de carácter financiero y económico de los efectos de la reforma y de los posibles costos que deberá afrontar la sociedad. Al observar que esta es una situación más bien común incluso en los países desarrollados, considera probable que también se extienda a los países en desarrollo. No cabe duda de que la seguridad social debe regirse por normas jurídicas, pero si las leyes se modifican, la claridad que aportan las evaluaciones actuariales independientes respecto de las repercusiones correspondientes resulta esencial no sólo desde una perspectiva a corto plazo con la que los gobiernos suelen evaluar tales efectos, sino también desde una perspectiva a largo plazo en lo que se refiere al impacto que toda nueva ley puede tener sobre la sostenibilidad financiera del sistema.

466. Si los legisladores en materia de seguridad social se aproximaran a los actuarios para trabajar en común en la medida posible, estos últimos, a su vez deberían hacer lo mismo adoptando un enfoque proactivo en lo que respecta a la legislación en materia de seguridad social. En un estudio actuarial deberían figurar observaciones claras y objetivas sobre todo asunto que afecte el estado financiero de un régimen de la seguridad social, señalándose las deficiencias de las disposiciones legales que rigen el funcionamiento de dicho régimen. Estas deficiencias de la legislación nacional podrían advertirse si se comparase dicha legislación con las normas mínimas del Convenio núm. 102 y, a través de la formulación de hipótesis alternativas de desarrollo futuro, determinar las probabilidades de que un régimen de seguridad social nacional sea sostenible. Los estudios y los informes actuariales constituyen herramientas importantes para que los legisladores y los encargados de formular políticas nacionales puedan adoptar medidas tendientes al cumplimiento de las normas de la OIT relativas a la seguridad social; tales herramientas resultan útiles en caso de que las reformas tengan como finalidad mejorar los niveles de protección social, pero en caso contrario, pasan a ser vitales” (lo resaltado es del original).

De este modo, se aborda la necesidad de otorgar una protección pro-fondo conforme a la técnica actuarial, y sostenemos también, que debe permitir un espacio necesario para resolver las cuestiones relevantes sobre cambios a los los derechos económicos y sociales que concede. Se descarta, por completo, por el costo social que tiene, abordajes oportunistas y apresurados a las reformas. Pero debe quedar claro, que toda reforma legal al sistema de pensiones requiere, por un lado, del análisis sustancial de una perspectiva económica y financiera, también el otro lado inmediato, en las implicaciones sobre la protección de derechos presentes y futuros. Todo ello, es posible afirmar que se deriva del artículo 71.3, del Convenio N° 102, de la O.I.T., la cual se establece como la otra obligación internacional.

De todo lo anterior, concluimos que uno de los principales cometidos del citado artículo 71, es servir como un mecanismo de seguridad contra la erosión de los derechos prestacionales de la seguridad social, dentro del gran apartado de los derechos económicos, sociales y culturales, pues busca el equilibrio en un doble sentido: la protección en favor de quienes requieren de la asistencia cuando la contingencia prevista sucede, y la otra, servir de postulado en favor de la racionalidad de las medidas para asegurar perpetuidad del fondo sin incurrir en la arbitrariedad y desprotección. Deber quedar claro, como se ha afirmado en los órganos de control de derechos económicos, sociales y culturales en Europa, donde se afirma que tanto los recortes como los costos, deberían ser soportados de forma colectiva, de una forma equitativa por la sociedad para evitar primero la afectación de las personas de menores recursos, tomar en cuenta la situación económica del país y la clase de personas protegidas. En nuestro país, el artículo 73, de la Constitución Política, establece en buena medida la contribución forzosa del Estado, patronos y trabajadores, entre otras formas de financiación.

La observancia del artículo 71 asegura el propósito fundamental de los sistemas previsionales: otorgar derechos desde el punto de vista actuarial, y mantenerlos una vez concedidos como derechos adquiridos y situaciones jurídicas consolidadas, en especial cuando sean ingresados al patrimonio privado. En tales casos, debe adoptarse medidas para propiciar la suficiencia de recursos en favor del fondo de pensiones; es decir, a través de reformas legales para que pueda operar en los niveles óptimos de protección, con equilibrio en favor de la protección de la Seguridad Social. Lo mismo debería entenderse, desde el punto de vista de la concesión de derechos de que no debe estar desligado de los aspectos sustanciales de los Derechos Económicos, Sociales y Culturales, con el fin de prevenir de la privación y restricción innecesaria de los potenciales derechos, cuando de lo que se trata, es de ajustarlos, limitarlos e incluso ralentizar el otorgamiento de derechos prestacionales, pero cuando se sustente adecuadamente mediante estudios técnicos. Por supuesto, se debe insistir que esto no debe entenderse como un desmantelamiento del Estado Social de Derecho.

En virtud de los principios protectores pro-persona, que privilegian, prefieren y favorecen la aplicación de las normas que ofrezcan mayor protección a los derechos de la persona humana, sea en una norma legal, constitucional, o de los Derechos Humanos, estimamos que aconseja que una reforma al sistema de pensiones debería amparar a quienes estuvieran en mejores condiciones de cotización, de tiempo de servicio, y de edad, y con una base técnica suficiente que le concede estos factores. Una reforma al sistema de pensiones -aun aplicando el principio pro-fondo- sería irrazonable si no tomara en consideración estos factores. Ignorar cotizaciones concretas de las primas de un trabajador entregadas a un sistema de pensiones y de seguridad social concreto, de forma sostenida en el tiempo, generalmente, por un servicio de muy larga trayectoria, debe ser tratado por estos estudios actuariales. Solo en casos de descalabro económico nacional podrían tomarse medidas graves en contra de estos derechos en vías de consolidación.

Entonces, estimamos que el estudio actuarial no solo debe reflejar la condición económica del fondo, también debe contar con otra vertiente, como es el acomodamiento de los trabajadores que estuvieran en mejores condiciones de cotización, de tiempo de servicio, y de edad, y con una base técnica suficiente que le concede preeminencia al tiempo de la cotización, factor que tiene íntima relación con la parte económica del fondo. Creemos que esto acreciente y maximiza las posibilidades del reconocimiento de los derechos prestacionales, aún cuando no han llegado a ser aún derechos adquiridos.

Sobre la razonabilidad técnica de las normas aprobadas por el legislador, esta Sala ha indicado que: “En cuanto a lo primero, debe advertirse que en sentido estricto la razonabilidad equivale a justicia, así, por ejemplo, una ley que establezca prestaciones científicas o técnicamente disparatadas, sería una ley técnicamente irracional o irrazonable, y por ello, sería también jurídicamente irrazonable. En este sentido cabe advertir que no es lo mismo decir que un acto es razonable, a que un acto no es irrazonable, por cuanto la razonabilidad es un punto dentro de una franja de posibilidades u opciones, teniendo un límite hacia arriba y otro hacia abajo, fuera de los cuales la escogencia resulta irrazonable, en razón del exceso o por defecto, respectivamente” (Sentencia N° 1994-00486 de las 16:03 horas del 25 de enero de 1994). Entonces, no negamos que el legislador tiene amplias facultades y libertades en la conformación de la ley, de manera que la razonabilidad de una norma estaría dentro de un punto de mayor o menor intensidad que haría de un rango de regulación permisible o razonable constitucionalmente, por lo que, se debe concluir, también que lo que cae fuera de él, es inconstitucional por deficiencia o por exceso del estándar. Sostenemos que el artículo 71.3, de la Convención N° 102, de la O.I.T. da cobertura normativa a las expectativas legítimas, salvo que se estuviera frente a una debacle económica, para desconocer beneficios a quienes de otro modo si lo tendrían. Debemos recordar, que las decisiones estatales deben respeto a los derechos de seguridad social, y hace caer la disposición fuera de aquel rango de regulación permisible o razonable. Reducir lo establecido en el standard estudiado debe quedar claramente justificado, al tratarse de Derechos Humanos que, en efecto, estarían siendo negados a quienes estuvieran en mejores condiciones para obtener una jubilación o pensión por el paso del tiempo.

Nombre5650.- El problema de las expectativas legítimas sin el empleo adecuado de un estudio actuarial.

1.- Más sobre la obligación internacional.

En Sentencia N° 2020-023789 de las 19:00 horas del 10 de diciembre de 2020, la Sala estableció, para las obligaciones internacionales, que:

“Ahora bien, de conformidad con el artículo 1°, de la Ley de la Jurisdicción Constitucional, corresponde a esta Sala garantizar además de la supremacía del Derecho Constitucional, también la del Derecho Internacional. De modo que, le corresponde a esta Sala no solo establecer la supremacía del derecho contenido en el Derecho de la Constitución cuando los tratados se refieren necesariamente a temas de derechos humanos, como también del Derecho Internacional, cuando por su interpretación y aplicación corresponde declarar su supremacía a las de las leyes, en virtud del artículo 7, de la Constitución Política. (…) En este sentido, desde su ratificación por nuestro país, las obligaciones internacionales que asume deberían estar produciendo efectos jurídicos duraderos, lo que debe ser práctica usual en aquellos tratados de Derechos Humanos que buscan elevar la dignidad humana, y cuyas obligaciones consisten en proteger, resguardar y hacer respetar esos derechos. En otros tratados también, cuando tienen como fin regular -jurídicamente- y erradicar otras prácticas nacionales que ponen en peligro esos derechos, especialmente si están vinculados a la vida, la salud humana y al medio ambiente. Este tipo de tratados también buscan el effet utile o lo que sería lo mismo lograr efectos duraderos, jurídicamente hablando, al tratarse de esfuerzos comunes y de cooperación internacional en una determinada área, porque adquieren especial interés internacional. Por ello, es lógico asociar los compromisos vinculantes a mecanismos de control de los objetivos pactados, porque no le son ajenos”.

La fuerza jurídica vinculante de las obligaciones internacionales en Costa Rica queda prístinamente revelada en la Sentencia N° 2016-006728 de las 9:05 horas del 18 de mayo de 2016, en cuanto establece que:

“El modo en que el Derecho internacional moldea al ordenamiento jurídico nacional lo decidió el constituyente cuando estableció la jerarquía normativa de las normas del Derecho internacional. Aunque pueden haber diferentes soluciones a la forma en que se relaciona el Derecho internacional público con el ordenamiento jurídico nacional, revela mucho la forma en que éste es incorporado, más aún el lugar que el constituyente originario como derivado le ubica en la jerarquía normativa del orden jurídico, con la intención de asignarle una determinada potencia y resistencia jurídica, énfasis agregado en algunos casos, para la convivencia del Derecho internacional con la norma nacional, que sería: supralegal donde el operador jurídico se enfrenta a una norma con fuerza y potencia en cascada que desplaza la norma inferior; o de igual rango, donde la autoridad judicial interpreta a la legislación internacional con una fuerza y potencia equivalente al de las leyes, operando los criterios de vigencia en el tiempo y el espacio, y que, para no generar conflictos innecesarios entre las normas, debe interpretar el Derecho internacional con el Derecho internacional consuetudinario. En estos casos, descarta la norma nacional o la interpreta conforme a la obligación internacional, salvo en aquellas jurisdicciones donde el legislador se atribuye su labor preeminente de dejarla expresamente sin efecto, bajo riesgo de violentar el orden internacional. En nuestro país el diseño que se le dio a la disposición constitucional fue pensado para que tuviera efectos muy concretos en el ordenamiento jurídico nacional. En nuestro caso, de origen monista, el Derecho internacional es incorporado una vez que se cumplan con los procedimientos legislativos para el dictado de una ley que lo recepta, con la aprobación legislativa, sigue la sanción y publicación, y finalmente el canje de notas diplomáticas o el depósito de los instrumentos para el perfeccionamiento de la obligación internacional -acto de ratificación-. La forma en que se impacta el derecho nacional lógicamente dependería de la naturaleza de los compromisos o las obligaciones internacionales pactadas entre los Estados o personas jurídicas con capacidad para actuar a nivel internacional. Por ejemplo, el objeto en los Tratados de Derechos Humanos es la persona humana, de ahí que le siguen mecanismos propios de interpretación como el principio pro homine, que, en el tanto se conjuga con el principio de supremacía constitucional, integra y supera el texto constitucional en cuanto produce una protección adicionada o incluso omitida por la norma constitucional, pero incrementando su legitimidad, en la dignidad humana (véase sentencia No. 1995-2313, entre otras)”.

El artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, forma parte del derecho internacional laboral, y este debe guiar la resolución de este asunto, toda vez que el canon internacional establece un estándar muy concreto, que se debe observar, pues el Estado: “deberá garantizar, cuando fuere oportuno, que los estudios y cálculos actuariales necesario relativos al equilibrio se establezcan periódicamente y, en todo caso, previamente a cualquier modificación de las prestaciones” (subrayado y lo resaltado no es del original). Estimamos que es obvio, que el cambio de las prestaciones incluye las actuales y las futuras. El legislador está en posibilidad, por la libertad de configuración, de establecer los nuevos términos amparados en los mencionados estudios, pero asegurando -salvo momentos de grave crisis y descalabros económicos- mecanismos que guarden, aquellas personas en mayor posición de expectativa, las que estarían en transición por una cuestión de equidad en la interpretación, la que debe ser también justa y balanceada.

La obligación internacional positiva aceptada por los Estados impone tanto la obligación de hacer determinadas cosas, como también -de no hacer- en contra de los derechos sin una justificación razonable para no vulnerar la norma. En el primero de los supuestos, constatando el desequilibrio de los fondos de pensiones como ocurrió con el Poder Judicial, donde no hay duda que el Estado requiere aprobar las normas y políticas adecuadas, para salvaguardar de las prestaciones sociales. Pero, en tal arista, debemos estar claros que cuando se toman decisiones que parten aguas en un Estado Social de Derecho, siempre se tienen obligaciones de hacer como de no hacer respecto de los derechos que quedan en un período de transición. En tales casos, es válido tomar de referencia la edad, el tiempo de cotizaciones y servicio, siempre en aras de mantener un equilibrio de un fondo, sin dejar de considerar derechos que bien pudieron protegerse por estar en transición. De este modo, insistimos que corresponde al Estado velar doblemente por la protección de quienes cotizan para las prestaciones futuras, y con mayor intensidad, acordar el amparo de los intereses legítimos de quienes gradualmente están en cercanía con el cumplimiento de los requisitos de tiempo y servicio, y en un grado mayor, a quienes estarían en transición. La norma transitoria debe adecuar estos factores en aras de proteger estos derechos en consolidación.

Creemos que el Convenio N° 102, de la Organización Internacional del Trabajo, no autoriza la toma de decisiones ayunas de razonabilidad técnica, al contrario, impone al responsable de los fondos -el Estado- los principios de razonabilidad y proporcionalidad, previendo que toda decisión se haga más difícil de alcanzar sin un sustento técnico, porque con ello lesiona los derechos sustantivos a una prestación futura e intergeneracional de quien ha aportado más. La norma transitoria debe estar adecuada a los derechos de quienes estuvieran en el fondo amparando un conjunto de derechos sustantivos por el tiempo de servicio, edad y cotizaciones, todo ello visto en conjunto de manera justa y equitativa, con un interés legítimo que indudablemente es de mayor intensidad.

La pregunta que cabe aquí, es si el legislador puede sustentar la reforma, sin consideración alguna a las consecuencias que puede generar sobre todas las personas afectadas, al agravar los derechos sustantivos. Estimamos que la respuesta debe ser negativa frente a la obligación internacional.

En el expediente legislativo (folio 4164), la diputada Natalia Díaz Quintana manifestó que:

“Otro tema importante en este texto que estamos dictaminando el día de hoy, que creo que también es parte de las reformas trascendentales del mismo, tienen que ver con el transitorio; un transitorio que se manejó de forma responsable en la comisión; un transitorio que inclusive lo que permite es que los servidores serviciales (sic) y les leo textualmente, es el transitorio sexto, que cumplan con los ….

La Procuraduría nos había dicho inclusive que este transitorio no era necesario, que inclusive la norma o la ley podía regir inmediatamente para la aplicación del mismo; sin embargo, también por fallas (sic) de la Sala Constitucional con respecto al régimen de IVM, donde se establecen dieciocho meses de transitorio, tomamos esta consideración para establecerlo y entonces darle derecho aquellos que estén a dieciocho meses de pensiones que se acojan a la normativa vigente y no a la ley que estamos aprobando, para también respetar estos beneficios.

Recordemos que las pensiones no son derechos adquiridos, sino es una expectativa de derecho, entonces por ese motivo se podía eliminar el transitorio; sin embargo lo dejamos en el proyecto de ley para abrir esa ventana de dieciocho meses aquellos que deseen pensionarse o que estén a punto de pensionarse en estos dieciocho meses y que por lo tanto puedan acogerse a la normativa actual”.

En este punto, hay que establecer que la obligación internacional del artículo 71.3., del Convenio N° 102, de la Organización Internacional del Trabajo, tiene un carácter jurídico, por ser un instrumento que trae consecuencias por su jerarquía normativa en el orden nacional -incluido el legislador y juez- en la medida que obliga a ajustar la voluntad otorgada entre sujetos de derecho internacional, y como tales, tiene que ser aplicado de conformidad con el principio pacta sunt servanda y de buena fe. Con este contenido jurídico, por consecuencia, es vinculante para el Estado costarricense, que adquiere el carácter de piso básico de la obligación internacional, que daría legitimidad al sustentarse en actuaciones técnicamente equilibradas, ordenadas por normas de mayor rango y jerarquía, que obliga en un primer orden que los ajustes no afecten negativamente a los fondos de pensiones, y que los derechos no sean abusados en el nombre del equilibrio del fondo, sin una justificación razonable en dificultades económicas que pueden ser corregidas en el futuro. En tal sentido, consideramos que es claro que todo mejoramiento es preferido. La legitimidad que da el instrumento internacional no es solo para el tema de los recursos, sino que, debe ser extensivo para el otorgamiento y el respeto de los derechos en transición. No tendría sentido que la actuación estuviera basada únicamente en consideraciones matemáticas sin considerar los Derechos Económicos, Sociales y Culturales.

Por Sentencia N° 2018-000230 de las 10:40 horas del 10 de enero de 2018, la Sala estableció que:

“… el legislador cuenta con discrecionalidad, en el marco de su derecho a la libre configuración, para establecer los requisitos de la actividad, a fin de proteger la salud de las personas, sin que deba justificar cada decisión mediante un estudio técnico, salvo cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige”.

En este sentido, los estudios actuariales finales procuraron un transitorio de veinticuatro meses para la consolidación de los derechos en transición. Así, estimamos que es obligado concluir, que los criterios técnicos actuariales son el instrumento objetivo para sustentar las reformas de los fondos de pensiones, las que deben justificar las modificaciones y limitaciones a las prestaciones. También, el tratamiento transicional después de la entrada en vigencia de la reforma. Pero, una modificación que hace más restrictiva una norma transitoria, debe estar basada en una necesidad debidamente constatada.

La mayoría de la Sala hace referencia a las consideraciones finales del estudio actuarial denominado “Producto 6 informe final: “Recopilación e informe final: Conclusiones y Recomendaciones” (Versión Final)”, el equipo actuarial discute algunos puntos relevantes de los informes, e incluyen las siguientes aseveraciones de los cálculos actuariales prospectivos a cien años realizados al Fondo de Jubilaciones y Pensiones del Poder Judicial:

“b. Sobre el “transitorio” que permitiría a las personas que se jubilarían en un plazo de dos años y la posibilidad de ampliar ese transitorio para las personas que se jubilarían en un plazo de cinco años.

Un aumento en el “transitorio” pospone los ajustes y por lo tanto afecta negativamente los ingresos del Fondo. Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo.

Por otra parte, una decisión en esta dirección puede inducir a los administradores y agentes políticos a realizar gestiones para incluir a grupos sucesivamente más numerosos, de forma que al final un “transitorio” de dos años terminaría transformándose en un transitorio de cinco, seis o incluso más años.

Finalmente, la ampliación del transitorio pospone parte de los ajustes, por lo que análisis de rentabilidad y solvencia del Fondo pueden generar la impresión de que los ajustes que sí se realizaron no surtieron efecto” (página 73 del informe).

Es importante mencionar, que de los últimos Marcos Normativos analizados IICE3 e IICE4, se consideraron solventes en las pruebas que se les realizaron; es decir, en los escenarios “base o intermedio” y “optimista”. Más aún, se refieren también al Producto 5, que “resultaron solventes tanto si se incluyen como si se excluyen los ingresos adicionales procedentes de procesos abandonados. Estos nuevos Marcos Normativos propuestos resultan autosuficientes y su funcionamiento no requiere imponer cargas al Estado o a los costarricenses”. Todo lo anterior, nos permite concluir que es claro que dentro de la solvencia actuarial que fue presentada a la Asamblea Legislativa, ya estaba “presupuestada” o “contenida” la normativa transitoria por dos años (veinticuatro meses).

La legislación debe mantener los ajustes y la adecuación de las modificaciones a las circunstancias individuales de las personas, desde los trabajadores de recién ingreso, quienes empiezan hasta alcanzar el periodo de pertenencia y que se transforma de un interés general a una expectativa legitima concreta por edad, tiempo de cotización y servicio de las personas trabajadoras, mientras pertenezcan al régimen. Los regímenes de pensiones son de larga duración, y que durante dicho periodo de pertenencia se incrementará más ese interés, a la de una expectativa legítima que conduce a la declaratoria del derecho.

No todas las reformas que resguarden el equilibrio de los fondos de pensiones son iguales. Estimamos que el resguardo de los recursos públicos en pensiones con cargo directo al presupuesto nacional no puede comportarse de la misma manera que con aquellos con fondos aportados por las cotizaciones de los trabajadores en regímenes de pensiones que reciben el aporte patronal y del Estado, y que valga decir, nacen de las obligaciones internacionales adquiridas con la Organización Internacional del Trabajo. Sin embargo, en ambas, debe existir el aporte forzoso del trabajador, el patronal y principalmente del Estado, cuya participación es parte de la necesidad de que haga sus aportes en nombre de la colectividad nacional, como sí lo hizo en el caso de las pensiones con cargo directo al presupuesto nacional y su transitorio de cinco años.

La Recomendación sobre los Pisos de Protección Social, 2012 (N° 202), que recoge lo relacionado a los principios relativos a la seguridad social, mantiene una íntima relación con el Convenio N° 102. En él, define a los pisos de protección social como los “conjuntos de garantías básicas de seguridad social definidos a nivel nacional” (punto I.2), pero además en el I.3, recoge los principios sobre adecuación y previsibilidad de las prestaciones (c); respetar los derechos y la dignidad de las personas cubiertas por las garantías de seguridad social (f); gestión financiera y administración sanas, responsables y transparentes (j); sostenibilidad financiera, fiscal y económica, teniendo debidamente en cuenta la justicia social y la equidad (k). Además de otros principios enunciados, es claro que debe existir siempre un equilibrio racional en lo que se refiere a los costos y beneficios a corto y largo plazo. Para llegar a ello, estimamos que se quiere de los estudios actuariales que permitan garantizar que las reformas y ajustes que se requieran, sean necesarias, justificadas y que respondan a criterios técnicos. De ahí que, creemos que es importante la transparencia, consulta y dialogo social en cualquier caso, pero más cuando se trata de regímenes administrados directa o indirectamente por el Estado, en el tanto están involucradas las organizaciones de los empleadores y trabajadores. En este sentido, el Estudio General relativo a los instrumentos de la seguridad social de la Organización Internacional del Trabajo, citada con anterioridad, menciona que se debería esperar que la confianza que se deposita en los estudios actuariales debe ser amplia y difundida, especialmente entre los tomadores de decisión, de modo que “…a los gobiernos les resultará más fácil obtener el apoyo de los interlocutores sociales y lograr un consenso sobre los cambios que deben realizarse, si dichos cambios se basan en recomendaciones objetivas formuladas por un actuario independiente” (el resaltado es agregado).

No hay duda, también, que el reconocimiento de los derechos en vías de constitución y transición debería estar estrechamente ligado a lo anterior, basado en la justicia social y equidad, por el costo social no económico que tiene, y porque ya está reconocido por los estudios técnicos al fondo de interés, cuyos estudios son establecidos por el mismo ordenamiento jurídico internacional.

2.- Derechos de transición en el corpus iuris nacional e internacional.

A partir de este punto, es necesario que examinemos la existencia de instituciones jurídicas desarrolladas por la jurisprudencia de los tribunales de justicia en nuestro país, incluida la misma Sala Constitucional, que responden a la racionalización de la aplicación de los cambios de derecho, basadas en consideraciones de equidad y justicia, especialmente cuando tiene efectos injustos y arbitrarios sobre las personas.

La doctrina de la confianza legítima, del estoppel, y la doctrina de los actos propios de la Administración Pública, responden todos a la protección y construcción del derecho como un verdadero valladar en contra de la injusticia y la arbitrariedad, y los tribunales se convierten en un vertebrador de la justicia en la sociedad.

Al producirse las reformas, debe existir un estándar mínimo que garantice un ambiente de predictibilidad que no es más que también una consecuencia del principio democrático que obliga a tomar decisiones racionales, además de la publicidad de los actos públicos válidos, y de su eficacia. De la publicidad deriva la obligación de los particulares de ajustarse a las normas y disposiciones emitidas por las autoridades públicas, por haber cumplido los requisitos formales y materiales que permiten considerarlas válidas, admitiendo los tribunales -también- aquellos en apariencia válidos, y eficaces cuando reciben su publicidad de forma oficial.

A nivel de la Unión Europea, el principio de la confianza legítima se deriva del principio general de seguridad jurídica (derivado todo del principio de legalidad). Es el reconocimiento de que esta institución jurídica proviene de las leyes nacionales. Se entiende como la obligación de las autoridades de estar no solo constreñidos por lo que la ley expresamente dispone, sino que también por sus promesas y por las elevadas expectativas que crea. En tal sentido, se tiene confianza legítima cuando se actúan con un componente de buena fe, pues a las personas se les debe proteger sus expectativas legítimas, porque actúan sobre la base de los textos de las leyes, y no deben ver frustradas sus expectativas legítimas creadas con base en ellas.

Por ejemplo, se reconoció que las medidas comunitarias que incentivaron dejar de producir lácteos, y cuyos productores se sometieron voluntariamente a ese aplazamiento en Europa, podían esperar que una vez superado el período, dejarían de tener efecto y podrían volver a ejercer la actividad económica que suspendieron. En Sentencia de la Tribunal de Justicia de la Unión Europea del 28 de abril de 1988, Nombre79840 v. Minister van Landbouw en Visserij, estableció que:

“26 Contrariamente a las afirmaciones de la Comisión, tal exclusión total y permanente, en tanto permanezca en aplicación de la normativa en materia de tasa suplementaria, que tiene como efecto impedir a los productores afectados reanudar la comercialización de la leche al término del período de cinco años, no era previsible para dichos productores en el momento en que asumían, temporalmente, el compromiso de no suministrar leche. En efecto, ni las disposiciones ni los considerandos del Reglamento n° 1078/77 ponen de manifiesto que el compromiso de no comercialización contraído en virtud de este Reglamento podría suponer a su vencimiento, la imposibilidad de reanudar la actividad en cuestión. Tal efecto vulnera, por consiguiente, la confianza legítima que los productores podían tener en el carácter limitado de los efectos del régimen al cual se sometían.

27 De ello se sigue que la normativa en materia de tasa suplementaria sobre la leche fue dictada en violación del principio de confianza legítima. Dado que esta normativa debe ser declaradas inválida por esta razón, no ha lugar a examinar los demás motivos expuestos en el curso del procedimiento contra su validez”.

Por su parte, ese carácter pretoriano que se ha difundido en muchos países, también tiene, desde el punto vista de la jurisprudencia nacional, aplicación en la Sala Constitucional. Esta ha establecido, en la Sentencia N° 2016-008000 de las 11:52 horas del 10 de junio de 2016, esa doctrina de la confianza legítima. En la decisión se indica que:

“Ahora bien, estamos ante un principio de origen jurisprudencial evidentemente ligado a cuestiones de equidad, motivo por el que su aplicación debe ser analizada en cada caso concreto. Recordemos que el mismo ha sido concebido como una reacción del juez para resguardar la confianza del Administrado, cuando la Administración lo sorprende con un cambio inesperado en su proceder. Como resolvió el Tribunal Supremo de España (Sala 3) en sentencia de 17 de mayo de 2013: “En definitiva, como señala la STJCE de 12-5-1998, para anular un acto irregular recaído en el seno del derecho nacional de un Estado, el Juez deberá ponderar los intereses en conflicto en cada caso, y resolver dando primacía, bien al principio de legalidad, revocando el acto, lo que demanda el interés general, bien dando protección a la confianza legítima, en defensa del interés individual”.

Atinente a los alcances del principio, el Tribunal Supremo de España, en sus votos de 21 de febrero de 2006 (RC 5959/2001) y 15 de diciembre de 2007 (RC 1830/2005), ha concluido que “la virtualidad del principio invocado puede suponer la anulación de un acto o norma y, cuando menos, obliga a responder, en el marco comunitario de la alteración (sin conocimiento anticipado, sin medidas transitorias suficientes para que los sujetos puedan acomodar su conducta y proporcionadas al interés público en juego, y sin las debidas medidas correctoras o compensatorias) de las circunstancias habituales y estables, generadoras de esperanzas fundadas de mantenimiento”.

En esas mismas sentencias, respecto de los límites al principio, ha señalado que:

“Sin embargo, el principio de confianza legítima no garantiza la perpetuación de la situación existente; la cual puede ser modificada en el marco de la facultad de apreciación de las instituciones y poderes públicos para imponer nuevas regulaciones apreciando las necesidades del interés general". Por otra parte, en la STS de 1-2-99 Az 1633, se recuerda que "este principio no puede invocarse para crear, mantener o extender, en el ámbito del Derecho público, situaciones contrarias al ordenamiento jurídico, o cuando del acto precedente resulta una contradicción con el fin o interés tutelado por una norma jurídica que, por su naturaleza, no es susceptible de amparar una conducta discrecional por la Administración que suponga el reconocimiento de unos derechos y/u obligaciones que dimanen de actos propios de la misma. O, dicho en otros términos, la doctrina invocada de los «actos propios» sin la limitación que acaba de exponerse podría introducir en el ámbito de las relaciones de Derecho público el principio de la autonomía de la voluntad como método ordenador de materias reguladas por normas de naturaleza imperativa, en las que prevalece el interés público salvaguardado por el principio de legalidad; principio que resultaría conculcado si se diera validez a una actuación de la Administración contraria al ordenamiento jurídico por el solo hecho de que así se ha decidido por la Administración o porque responde a un precedente de ésta. Una cosa es la irrevocabilidad de los propios actos declarativos de derechos fuera de los cauces de revisión establecidos en la Ley ( arts. 109 y 110 de la Ley de Procedimiento Administrativo de 1958 , 102 y 103 de la Ley de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo Común, Ley 30/1992 [RCL 1992 \2512, 2775 y RCL 1993\246], modificada por Ley 4/1999 [RCL 1999\114]), y otra el respeto a la confianza legítima generada por actuación propia que necesariamente ha de proyectarse al ámbito de la discrecionalidad o de la autonomía, no al de los aspectos reglados o exigencias normativas frente a las que, en el Derecho Administrativo, no puede prevalecer lo resuelto en acto o en precedente que fuera contrario a aquéllos".

En resumen, el principio de confianza legítima descansa sobre la base de que el ciudadano asume un comportamiento confiando en que actúa de manera correcta, toda vez que la conducta constante, estable y a lo largo del tiempo de la Administración le genera razonablemente tal expectativa; dicho de otra forma, la Administración ha emitido signos externos que han venido a orientar al ciudadano hacia una cierta conducta y le han hecho confiar de buena fe en que tal situación persistirá. Como señala Meza Valencia (2013), “la confianza del particular surge con ocasión del nacimiento en el mundo jurídico de una palabra dada o promesa de la administración, pero se fortalece y arraiga con la cadena de conductas posteriores asumidas por la administración, toda vez que estas vayan orientadas a fortalecer y desarrollar la palabra emitida previamente. Sin la existencia de dichos actos posteriores armónicos y coherentes, la promesa dada previamente pierde su vocación de consolidación de la confianza legítima”.

Lo anterior no implica que la Administración se encuentre conminada a mantener irreversible un acto contrario a la normativa vigente. Por el contrario, en el ejercicio de sus potestades públicas, la Administración bien puede remediar la mala aplicación de la normativa o imponer nuevas regulaciones apreciando las necesidades del interés general. Empero, para ello el Estado debe respetar la doctrina de los actos propios, o bien -sobre todo cuando se trata de nuevas medidas o de una decisión de improviso- proceder de manera razonable, es decir, con la debida anticipación comunicar su nueva actuación, con medidas transitorias suficientes para que los sujetos puedan acomodar su conducta y proporcionadas al interés público en juego, sin excluir otro tipo de disposiciones correctoras o compensatorias de las circunstancias habituales y estables, que le forjen al ciudadano esperanzas fundadas del mantenimiento de determinada situación.

La jurisprudencia constitucional costarricense ya ha reconocido este principio, como se advierte en los siguientes antecedentes:

"(...) Sobre el desarrollo de este principio y su profunda raigambre constitucional, la doctrina nacional ha manifestado lo siguiente: "Este principio surge en la República Federal de Alemania y, luego, es recogido por la jurisprudencia del Tribunal de Justicia de la Comunidad Europea, para definir una situación digna de ser amparada al haber sido violada la confianza puesta en la acción de la Administración Pública. El Tribunal Supremo Español, en su sentencia del 1º de febrero de 1990, consideró que este principio ha de ser aplicado, no tan sólo cuando se produzca cualquier tipo de convicción psicológica en el particular beneficiado, sino más bien cuanto se basa en signos externos producidos por la Administración lo suficientemente concluyentes para que le induzcan razonablemente a confiar en la legalidad de la actuación administrativa, unido a que, dada la ponderación de intereses en juego interés individual e interés general- la revocación o dejación sin efectos del acto, hace crecer en el patrimonio del beneficiado que confió razonablemente en dicha situación administrativa, unos perjuicios que no tiene por qué soportar derivados de unos gastos o inversiones que solo pueden serle restituidos con graves perjuicios en su patrimonio. En cuanto a los requisitos del principio de confianza legítima, la doctrina española, siguiendo la jurisprudencia del Tribunal Supremo Español, ha establecido los siguientes: Debe mediar un acto 1) de la administración lo suficientemente concluyente para provocar en el afectado uno de los tres tipos siguientes de confianza: a) confianza del afectado en que la Administración Pública actúa correctamente; b) confianza del afectado en que es lícita la conducta que mantiene en su relación con la Administración Pública, al existir un eventual error de prohibición; c) confianza del afectado en que sus expectativas como interesado son razonables. 2) La Administración Pública debe provocar signos (actos o hechos) externos que, incluso, sin necesidad de ser jurídicamente vinculantes, orienten al administrado hacia una determinada conducta que de no ser por la apariencia de legalidad creada no hubiere efectuado. 3) Un acto de la Administración Pública (v. gr. un reglamento que reconoce o constituye una situación jurídica individualizada en cuya estabilidad confía el administrado. 4) La causa idónea para provocar la confianza legítima del afectado no puede provocarse por la mera negligencia, tolerancia, ignorancia de la Administración Pública o lo irracional de lo pretendido por el administrado. 5) El administrado debe cumplir los deberes y obligaciones que le competen. El quebranto del principio de la confianza legítima provoca, indudablemente, varios efectos jurídicos de importancia, veamos: 1) Actúa como límite al ejercicio de las potestades discrecionales. 2) Opera como una garantía del principio de igualdad. 3) Provoca el deber de la Administración pública de resarcir la frustración de las expectativas legítimas y los derechos subjetivos lesionados. El principio de la confianza legítima, junto con el de la buena fe en las relaciones jurídico-administrativas, dimana del principio de igualdad jurídica, esto es, la certidumbre de las relaciones con los poderes públicos, saber, el administrado, a qué atenerse con éstos, quienes deben evitar las situaciones objetivamente confusas y mantener las situaciones jurídicas aunque no sean absolutamente conformes con el ordenamiento jurídico. Este principio, se concreta, entre otros supuestos, con la teoría de la intangibilidad de los actos propios declarativos de derechos para el administrado, la limitación de los actos de gravamen y la irretroactividad. Encuentra aplicación, también, cuando una administración pública dicta y realiza una serie de actos y de actuaciones, que aunque jurídicamente incorrectas, generan una serie de expectativas en el administrado creyendo que ostenta una situación jurídica conforme con el ordenamiento jurídico (...)" (ver sentencia N° 2010-010171 de las 9:58 horas del 11 de junio de 2010)” (lo resaltado es del original).

En otra sentencia, la Sala resuelve un recurso de amparo de una persona de sesenta y un años de edad que había iniciado, desde hacía muchos años, labores en el Ministerio de Hacienda, que debido a modificaciones y nuevos requisitos para el servicio de limpieza -a través del outsourcing- quedó excluido de continuar con sus labores en el Ministerio de Hacienda, perjudicando su situación individual y concreta, y su oportunidad de adquirir una pensión. Además, se toma en cuenta que es una persona que forma parte de la población discapacitada, y que, en su último contrato laboral, quedó excluido por la instauración del requisito académico de tener la escuela primaria concluida. Esta Sala resolvió el caso, de la siguiente manera:

“Ante el anterior panorama, se puede observar como la Administración Pública generó una confianza del afectado en que esta actuaba correctamente, durante todo ese tiempo laborado, generando expectativas al amparado, consideradas razonables, ya que desde el año 1996 al 2017 el tutelado laboró para todas las empresas de servicios de limpieza que fueron adjudicadas por el Ministerio de Hacienda, convirtiéndose esto en una práctica común, donde todas las empresas adjudicadas lo contrataban para mantenerlo realizando esa labor de limpieza, con los mismos requisitos durante 30 años como se señaló. Si bien el cambio en los requisitos del cartel se sustenta en los requerimientos mínimos para el uso de productos y actividades propias de la labor, el amparado ha demostrado durante sus casi treinta años que es una persona idónea y que puede manejar bien las labores del puesto. Sobre la actuación de la administración, se puede demostrar que esta ha estado representándole estabilidad y continuidad en su relación laboral al amparado, pues no se acredita ninguna situación de rechazo o queja ante las empresas adjudicadas. Considerando que el petente es una persona con capacidades especiales y cerca de su adultez mayor, se puede afirmar que el cambio de requisito para el puesto le ocasionaría un agravio a su condición, por la dificultad que se menciona, para conseguir empleo, debido a su discapacidad y la edad, y además ahora que le faltan pocas cuotas para poder pensionarse. En virtud de lo anterior, esta Sala considera, que en el caso particular del amparado, la administración contribuyó a constituir una situación de confianza y respaldo, por los requisitos exigidos a las empresas contratadas, para realizar sus funciones, en cuya estabilidad confiaba el tutelado, por lo cual corresponde declarar con lugar este recurso en los términos que se disponen en el por tanto de esta sentencia” (2018-02910 de las 9:15 horas del 23 de febrero de 2018).

En otra Sentencia, N° 2023-014857 de las 13:11 horas del 21 de junio de 2023, esta Sala acordó que era necesario sostener en el tiempo ciertas ventajas económicas obtenidas en una Convención Colectiva, dado el comportamiento omisivo de una institución pública, y que no fue sino hasta el final de un proceso laboral, que se quiso corregir la situación económica, pese a la existencia de cosa juzgada. En la resolución, se indicó que:

“Se debe reiterar que, en la Sentencia N° 2021-001157 de las 12:42 horas del 20 de enero de 2021, se conoció otro asunto similar que abordó la razonabilidad de una norma convencional, pero como se indicó anteriormente, fue denunciada oportunamente. Ahora, en este caso que nos ocupa, la conducta omisiva hizo consolidar una situación que ahora sería impropio de esta Sala pronunciarse, con fundamento en la doctrina del “estoppel”. Por Sentencia N° 1992-00746 a las 11:20 horas del trece de marzo de 1992, esta Sala lo define con lo siguiente: “Esta posición es conocida en la doctrina como el estoppel administrativo que impide al interesado beneficiarse de su propio dolo o errores o de la administración y luego acusar la nulidad de los actos por lo que se benefició”. En este sentido, según lo anterior, se debe una protección a la parte que se benefició de buena fe procesal y en resguardo de los valores de la confiabilidad del tráfico jurídico, que en este caso serían la seguridad jurídica y la cosa juzgada”.

Como es claro de todo lo anterior, la Sala, en efecto, ha observado, a través de diferentes instituciones jurídicas, el principio de la seguridad jurídica, especialmente su derivación, el principio de la confianza legítima, como un mecanismo de conservación de los efectos continuados de las normas y actos administrativos como una extensión de derechos subjetivos que debieron protegerse, pese a la derogación normativa cuando el particular haya depositado su confianza en las actuaciones públicas. Estimamos que el comportamiento individual de los trabajadores del Poder Judicial se ha ajustado a las normas que les elevaron expectativas legítimas, las que se han generado con un grado de confiabilidad y de buena fe, en su régimen de pensiones cotizando y trabajando lealmente en el Poder Judicial. Se reconoce, entonces, que cuando hay cambios normativos “el Estado debe respetar la doctrina de los actos propios, o bien -sobre todo cuando se trata de nuevas medidas o de una decisión de improviso- proceder de manera razonable, es decir, con la debida anticipación comunicar su nueva actuación, con medidas transitorias suficientes para que los sujetos puedan acomodar su conducta y proporcionadas al interés público en juego, sin excluir otro tipo de disposiciones correctoras o compensatorias de las circunstancias habituales y estables, que le forjen al ciudadano esperanzas fundadas del mantenimiento de determinada situación”. Entonces, creemos que es evidente, que se debe preferir opciones que sean acordes a los principios protectores de la persona humana en el campo de los derechos humanos, por la necesidad intrínseca y respeto de la dignidad de las personas, especialmente aquellas que han tenido mayor tiempo de estar sujetos a un régimen jurídico concreto, que no había variado por más de veinte o treinta años, y que, en ese campo, por razones de equidad, justicia y de seguridad jurídica, debieron considerarse disposiciones transitorias correctoras o compensatorias adecuadas a sus situaciones concretas, y acorde a la intensidad de las expectativas legítimas que tuvieran.

Nombre8518.- Conclusión.

Como corolario de todo lo anterior, estimamos que el Estado, en el ejercicio y ponderación de la toma de sus decisiones sobre fondos de jubilación, debe ser doble para resguardar: a) el equilibrio económico del fondo, con fundamentos en los aspectos demográficos, mortalidad de la población, y situación económica del país, entre otros elementos objetivos; y también, b) los derechos e intereses legítimos de sus destinatarios. Es claro, que hay que someter periódicamente los regímenes de pensiones a los respectivos estudios actuariales, y salvo descalabros económicos devastadores en una economía es que se podrían tomar medidas que afecten severamente a todas las personas que formalmente no han alcanzado ese derecho. Pero, cuando no es esta situación, el Estado y los fondos que administran los regímenes de pensiones, deben procurar soluciones que no anatematicen a los trabajadores en las puertas de la declaratoria del derecho. Consideramos que en esta materia, no hay simples expectativas de derecho, en atención a una relación de larga duración (muchas veces de toda una vida) que incluye el tiempo servido y la cotización, pero al amparo de las seguridades y garantías de un régimen de empleo público, que en este caso se corresponde a un Poder de la República; en consecuencia, se debería definir para los trabajadores una forma que gradúe los derechos de quienes tienen expectativas legítimas por los años de servicio prestado y lo cotizado al correspondiente fondo de pensiones y jubilaciones.

Los estudios actuariales realizados por el IICE habían contemplado un transitorio de dos años (veinticuatro meses) como parte del análisis de las medidas correctivas del fondo de pensiones. Sin embargo, es claro que dicha información no tuvo consecuencia en el Transitorio VI finalmente aprobado de dieciocho meses, al no considerar la integralidad de la información económica y de los derechos en favor de aquellas personas servidoras que quedarían al descubierto, y a quienes, por consecuencia, no se le otorgó protección alguna pese a estar cuantificados y contar con derechos en vías de consolidación. Si bien, se nos podría argumentar en contra de nuestra conclusión, que siempre quedarán personas excluidas con cualquier fijación temporal que hiciere una disposición transitoria en esta materia, es claro traer el criterio de la mayoría en la Sentencia N° 2021-11957 (antes citada), en cuanto señaló que: “… la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas”, interpretación que es correcta y es una obligación que estaría a cargo de la Asamblea Legislativa. El reconocimiento de los derechos prestacionales analizados, a quienes no estaban aún con derechos consolidados en los estudios actuariales, que vale decir, se calculan a cien años, pudo apenas haberse constituido en un factor de distorsión actuarial entre el tiempo en que fueron finalizados los estudios y la aprobación de la reforma, pero que no hubiera descarrilado los cálculos de solvencia o insolvencia realizados, sumadas las otras medidas introducidas, y que, se hubieran podido corregir administrativamente durante tal largo plazo.

De ahí que, estimamos que resulta inconstitucional por omisión, la fijación de un plazo de dieciocho meses, porque con esa medida estatal fue más restrictiva y desfasada del estudio actuarial, que había ponderado un plazo de veinticuatro meses, con lo que se había medido el grado y adecuación de su impacto económico sobre las prestaciones futuras concedidas, frente a la afectación de los derechos en transición.

Consideramos, que el transitorio por dos años que se había establecido era la forma de establecer protección a los derechos prestacionales en vías de consolidación, el cual fue variado por el legislador (como se ilustró con la intervención de la diputada Díaz Quintana). El presidente de la Asamblea Legislativa es enfático en señalar que se utilizó el criterio discrecional del legislador. En este sentido, invoca una prerrogativa que implicaría una simple adecuación de los actos parlamentarios a la libertad de configuración. Por ello, si solo se usó esta prerrogativa, y no hubo otro criterio de fondo, contrastado con el artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, es claro que el producto es ilegítimo al quedarse corto del estándar técnico previamente establecido, y dado que la Sala ha sostenido que la libertad de configuración del legislador se encuentra limitada al cumplimiento de los estudios técnicos que exija una disposición concreta, sea en temas ambientales, o según la materia que se trate, como es la obligación internacional que nos ocupa.

El derecho sustantivo, además de requerir un sustento razonable debe resguardarse con estudios técnicos que deberán velar por un equilibrio financiero, también, al hacerlo, debía proteger en la medida posible las prestaciones en transición. Además, hay que reconocer que existe una relación de sujeción especial y una verdadera relación jurídica de larga duración con un plan básico de pensiones para los funcionarios judiciales, con implicaciones económicas como podría ser la de los trabajadores que pudieran estar en situaciones amparables, quienes se mantuvieron en sus puestos visualizando planes y proyectos de vida, con ciertas condiciones de salud, y es lógico, pensar que estaría dentro de sus consideraciones, las mejores condiciones de seguridad social y el derecho a la jubilación, todos en un contexto desde el día uno en que se inicia la labor con el Poder Judicial.

Por todo ello, se puede observar una actuación irregular reclamado por los accionantes, que hacen que los medios utilizados y los fines, no quedaran bien cristalizados, especialmente, en tratándose del caso de la desmejora de derechos.

La posición de minoría no debe quedar en este punto en una decisión en abstracto, pues evidentemente, se estaría reconociendo que sí hay afectación a una obligación internacional contenida en el artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, así como los derechos económicos, sociales y culturales de los trabajadores. Por ello concluimos con una sentencia estimatoria por la omisión inconstitucional e inconvencional de la norma, por la insuficiencia parcial en la cobertura de la disposición aprobada por la Asamblea Legislativa, en cuanto fijó dieciocho meses como período transitorio; y, por la insuficiente cobertura pese al estudio actuarial que permitía establecer con claridad un plazo mayor que podía sustentarse técnicamente, que reflejara las necesidades de un equilibrio financiero razonable del fondo, con el de otorgar los derechos fundamentales de los trabajadores expectantes, respetando las expectativas legitimas de los servidores judiciales. En conclusión, la norma transitoria es omisa -inconstitucionalmente- al haberse apartado de los antecedentes actuariales que establecían veinticuatro meses de transitorio, cuyo sustento actuarial fue debidamente establecido.

En consecuencia de todo lo anterior, de conformidad con los artículos 89 y 91, de la Ley de la Jurisdicción Constitucional, dimensionamos esta declaratoria para graduar y dimensionar los efectos retroactivos de esta declaratoria, para establecer que los funcionarios judiciales conservan los derechos a la jubilación y/o pensión conforme al texto anterior a la reforma operada por Ley N° 9544 del 24 de abril de 2018, dentro de los veinticuatro meses posteriores a su promulgación. - Luis Fdo. Salazar Alvarado Ana María Picado Brenes Telf5585 ... Ver más Res: 2023032259 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las quince horas del trece de diciembre de dos mil veintitrés.- Acción de inconstitucionalidad promovida por JAVIER CARVAJAL MOLINA, mayor, abogado, cédula de identidad número 106960859, actuando en sustitución de KAROL MONGE MOLINA, como apoderado especial judicial de ADALGISA DEL CARMEN GUILLÉN FLORES Y OTROS, para que se declare la inconstitucionalidad del TRANSITORIO VI DE LA LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, NO. 9544, por estimarlo contrario a los artículos 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución Política, Convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo, así como a los principios democráticos, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad relativa del patrimonio, no confiscatoriedad, respeto a los derechos adquiridos y situaciones jurídicas consolidadas. Intervienen el Procurador General de la República, el Presidente de la Asamblea Legislativa y el Presidente de la Corte Suprema de Justicia.

Resultando:

1.- Por escrito recibido en la Secretaría de la Sala a las 15:04 horas del 31 de diciembre del 2019, el accionante impugna el TRANSITORIO VI DE LA LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, NO. 9544, por estimarlo contrario a los artículos 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución Política, Convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo, así como a los principios democráticos, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad relativa del patrimonio, no confiscatoriedad, respeto a los derechos adquiridos y situaciones jurídicas consolidadas. La norma se impugna en cuanto establece los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de esa ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto. A juicio del accionante, el Fondo de Jubilaciones y Pensiones del Poder Judicial, no solo es un régimen jubilatorio sino que además, forma parte del contrato de trabajo. El fondo es parte de la organización y funcionamiento institucional. Su existencia responde a criterios de estabilidad, independencia, preparación e idoneidad. Se trata de un elemento que promueve la permanencia de un personal formado y capacitado en la institución, un elemento intrínseco del contrato de trabajo y de la expectativa a futuro que tiene cada persona servidora judicial y sus familias, que se constituye como un elemento interno de la organización del Poder Judicial. Alega que el hecho de sufrir la aplicación automática de una disposición transitoria tan severa y nunca antes aplicada a ningún grupo con situaciones jurídicas consolidadas en materia jubilatoria, representa un desestimulo para continuar laborando en la institución, profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral. Asegura que los accionantes contemplaron un proyecto de vida, dadas las condiciones de trabajo que les fueron ofrecidas, dentro de las cuales se encontraba el disfrute a una jubilación digna a través del Fondo de Jubilaciones y Pensiones del Poder Judicial, previo cumplimiento razonable de años de servicio y edad, conforme a los cuales se podrían retirar con un ingreso digno, después de haber otorgado toda una vida productiva al servicio de la comunidad y del Poder Judicial. Por lo anterior, estima que no resulta razonable, que a pocos años de tener el cumplimiento de requisitos establecidos por el legislador, estos sean variados sin un estudio técnico que respalde la procedencia de las nuevas medidas a aplicar. Bajo esos términos, el Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la variación drástica del tiempo de servicio que tendrían que cumplir aun cuando ya no cuenten con las capacidades físicas e intelectuales que requiere la función judicial. La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde, por la aplicación de una norma transitoria infundada y arbitraria, se ve truncado el proyecto de vida de quienes depositaron su confianza legítima y su buena fe en la institución como patrono y en expectativa tener una jubilación digna a través del Fondo de Jubilaciones y Pensiones del Poder Judicial, para la cual han cotizado durante muchos años, dando un aporte significativo de su salario mensual, lo que implica una variación a las condiciones del contrato de trabajo que hace 20 años o más se pactaron entre los accionantes y el Poder Judicial. Sostienen que el Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues se trata de derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó a un régimen en un porcentaje superior al general, con la expectativa de contar con una pensión que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida, de manera que el pasar de estar a poco tiempo de jubilarse a que, actualmente, se les aplique una decena o más de años pendientes de laborar, todo por la aplicación automática de una norma inconstitucional. Asegura que la pertenencia y eventual goce de una jubilación con cargo al Fondo de Jubilaciones y Pensiones del Poder Judicial, forma parte del contrato de trabajo y de las condiciones laborales que en su momento se establecieron para sus representados, las cuales se han mantenido durante veinte, veinticinco y veintiocho años de servicio y resulta contrario al derecho de la constitución y de los derechos humanos, que reciban una modificación tan drástica como la que se estableció el transitorio VI de la ley 9544, lo que resulta contrario al derecho al trabajo y a la jubilación establecida en el artículo 73 de la Constitución Política. Refiere que todas las reformas legales a los regímenes jubilatorios existentes en Costa Rica, sean del primer pilar o de regímenes sustitutivos, han contado con normas transitorias que permiten una gradualidad en su aplicación, respetándose derechos adquiridos, situaciones jurídicas consolidadas y permitiendo el ingreso de la reforma, a la población, de forma que no se violen sus derechos fundamentales. Sin embargo, la ley 9544 establece de forma arbitraria un plazo de dieciocho meses para gozar de una jubilación bajo las condiciones anteriores a la entrada en vigencia de dicha ley, momento en el que prácticamente sólo tendrían derecho quienes estén cercanos a al cumplimiento de las condiciones jubilatorias, lo que se torna sumamente gravoso para la esfera jurídica de sus representados. Si ya se cuenta con más de 20 años o más de servicio judicial, resulta más difícil tomar la decisión de renunciar por la ampliación grosera de esos plazos y dada la gran cantidad de dinero que estas personas han invertido en el Fondo de Jubilaciones. Indica que en otros regímenes de pensiones sí se están respetando las situaciones jurídicas consolidadas e incluso se permite el traslado a otro régimen jubilatorio menos confiscatorio que el del Fondo del Poder Judicial. El transitorio VI violenta el principio de seguridad social, transgrede los derechos de sus representados, pues se otorgó un plazo casi inexistente para la conservación de situaciones jurídicas consolidadas. Afirma que si bien, la propia Sala Constitucional ha indicado que el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, también indicó en su sentencia número 5758-2018, que estas variaciones eran permitidas siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Además, la Organización Internacional del Trabajo ha señalado la necesidad de contar con criterio técnico para realizar variaciones en los regímenes de pensiones. Lo anterior, no se respeta en el caso concreto, toda vez que la Ley número 9544 cambia esencialmente todas las condiciones jubilatorias sobre las cuales sus representados tenían una expectativa durante muchos años. Cambian las condiciones de tiempo servido, de salario, de aporte de cotizaciones forzosas, cambia sustancialmente el ingreso que se tendría por concepto de jubilación y sobre todo, cambia el tiempo de servicio faltante a pesar de que la mayoría cuenta con más de 25 años de servicio para la institución. Estima que el transitorio VI requiere ser ajustado a fin de tutelar los derechos fundamentales esta población judicial, pues es demasiado el perjuicio que se les impuso al pasar de unos meses, a más de diez años -en la mayoría de los casos-, para adquirir un derecho jubilatorio, que por demás, es ahora ruinoso, a pesar de haber cotizado durante tantos años al Fondo de Jubilaciones y Pensiones del Poder Judicial. Reclama que la norma no respetó la enorme cantidad de años que sus representados han pertenecido y cotizado al régimen y cuyo beneficio debió haberse resguardado con un transitorio razonable, justo, sustentando en criterios técnicos y objetivos. Manifiesta que el derecho a la jubilación corresponde a un derecho de seguridad social que ha sido ratificado no solo por diferentes instrumentos internacionales, sino por normas jurídicas nacionales, que teniendo ciertas condiciones, no pueden ser variadas en perjuicio de los derechos humanos de quienes ostentan el derecho o la situación jurídica consolidada. Asegura que de acuerdo con el Protocolo a la Convención de Derechos Económicos Sociales de San Salvador, Ley número 9707, artículo 1° y artículo 2° del Protocolo Facultativo del Pacto Internacional de Derechos Económicos, Sociales y Culturales, Decreto Ejecutivo número 38513-RE, dentro de los derechos sociales, se encuentra el derecho al trabajo y, con ello, el derecho a una jubilación. Esto alude a un derecho fundamental que le pertenece al trabajador por el simple hecho de ser persona y haber cotizado para el régimen legal correspondiente durante un período determinado. A partir de la sentencia No.2794-2003 se extrae que el Estado costarricense tiene la obligación de respetar los derechos y situaciones jurídicas consolidadas de los funcionarios judiciales y procurar su desarrollo progresivo. Desde este punto de vista, la norma impugnada es inconstitucional.

2.- La legitimación del accionante proviene del recurso de amparo que se tramita en expediente número 19-006391-0007-CO.

3.- Mediante resolución de las 11:55 horas del 14 de enero del 2020 se tuvieron por habilitados para resolver esta acción a los magistrados propietarios en ese momento: Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fdo. Salazar Alvarado, Jorge Araya García, y además, a los magistrados suplentes de ese momento: a la magistrada suplente Marta Esquivel Rodríguez, en virtud de haber sido designada por sorteo, y al magistrado suplente José Paulino Hernández Gutiérrez para el conocimiento de esta acción de inconstitucionalidad.

4.- Mediante resolución de las 15:53 horas del 11 de febrero del 2020, en virtud de la solicitud de inhibitoria presentada, se tuvo por separado del conocimiento de este caso al magistrado Fernando Cruz Castro y se declara habilitado al magistrado suplente que lo sustituya.

5.- Mediante resolución n°2020-3936 de las 9:30 horas del 26 de febrero del 2020 se reservó el dictado de la sentencia de esta acción hasta tanto no sea resuelta la que bajo expediente n°18-007819-0007-CO. Posteriormente, mediante resolución n°2021-11957 de las 17:00 horas del 25 de mayo del 2021 se resolvió la acción de inconstitucionalidad indicada, expediente n°18-007819-0007-CO, resolviéndose en el por tanto lo siguiente:

“Admisibilidad:

Por unanimidad, se rechazan de plano:

a)los agravios de vicios de procedimientos referidos a la violación de la autonomía de los bancos del Estado y de la autonomía de la Caja Costarricense de Seguro Social por falta de legitimación.

b)el análisis del agravio sobre la declaratoria de inconstitucionalidad por conexidad de la ley 9796 del 5 de diciembre de 2019, por ser motivo de análisis en la acción de inconstitucionalidad 20-007715-0007-CO.

En cuanto a la acción de inconstitucionalidad 19-1720-0007-CO, se rechazan de plano por falta de legitimación, de conformidad con el artículo 75 párrafo 1) de la Ley de la Jurisdicción Constitucional, los reclamos que buscan tutelar a la generalidad de servidores, funcionarios, pensionados y jubilados, en aquellos temas en los que la accionante no puede derivar una tutela o amparo de su derecho por no ser medio razonable para amparar su derecho.

Vicios de procedimiento legislativo:

Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declaran sin lugar las acciones acumuladas en cuanto a los alegados vicios de procedimiento. El magistrado Castillo Víquez da razones adicionales en cuanto a la violación del principio de publicidad. Las magistradas Hernández López y Garro Vargas ponen notas separadas. En cuanto al tema de los vicios alegados de la sesión de la Comisión Especial del 27 de julio de 2017, la magistrada Garro Vargas da razones diferentes.

Los magistrados Salazar Alvarado y Hernández Gutiérrez salvan el voto y declaran que la ley impugnada presenta el vicio esencial de procedimiento consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia, razón por la cual estiman innecesario entrar a analizar otros vicios de procedimiento y de fondo planteados por los accionantes; excepto aquellos en los que se requiera tomar posición para que exista voto de toda conformidad (artículo 60.2, Código Procesal Civil).

En cuanto a los agravios de fondo:

Se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) se anula el porcentaje de cotizaciones y la contribución especial solidaria y redistributiva en cuanto excedan el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia, o la paz social, la Sala gradúa y dimensiona los efectos de esta resolución, de modo que, a partir del mes siguiente de la notificación de la sentencia, las autoridades competentes deberán realizar el ajuste correspondiente conforme a esta sentencia, de manera tal que las cargas tributarias que pesan sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. El magistrado Castillo Víquez da razones diferentes. La magistrada Garro Vargas, por sus propias razones, declara con lugar este extremo de la acción de inconstitucionalidad, ordenando anular parcialmente lo dispuesto en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial; asimismo, advierte que la inconstitucionalidad que declara afecta los excesos de la contribución especial solidaria respecto de ese 5% y no el resto de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial. El magistrado Hernández Gutiérrez da razones adicionales. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran sin lugar este extremo, tal y como lo hicieron en la sentencia n.? 2020-19274 de las 16:30 horas de 7 de octubre de 2020, por cuanto, según el texto expreso del artículo 67 del de la OIT C102 de 1952 Convenio sobre la Seguridad Social (norma mínima), la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido de las normas impugnadas.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declara inconstitucional y en consecuencia se anula el párrafo contenido en el artículo 239 de la Ley Orgánica del Poder Judicial reformado por la Ley número 9544 impugnada, que dice: "Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen".

Tercero. Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se interpreta la frase "(...) la presente reforma no les será aplicada en su perjuicio", contenida en el Transitorio II de la Ley 9544 de 24 de abril de 2018, en el sentido de que se refiere exclusivamente a las personas que han consolidado el derecho a la jubilación o el derecho a la pensión.

Cuarto: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declara inconstitucional el requisito de los 20 años de servicio exigido para efectos de obtener la pensión por sobrevivencia que se deriva del artículo 229 de la Ley 9544 de 24 de abril de 2018, en cuyo caso se mantiene vigente el requisito de 10 años para adquirir ese derecho, según el artículo 230 de la Ley 7333 de 5 de mayo de 1993 en la versión anterior a la reforma.

Se declaran sin lugar las acciones de inconstitucionalidad acumuladas, y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) en cuanto a los alegatos relativos a la omisión de tomar en cuenta la diferenciación de género en la edad de jubilación entre mujeres y hombres, se declara sin lugar las acciones. Los magistrados Salazar Alvarado y Hernández Gutiérrez declaran sin lugar este extremo de la acción, únicamente por razones de forma ante la ausencia de estudios técnicos. La magistrada Garro Vargas da razones diferentes. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran parcialmente con lugar las acciones acumuladas por la existencia de una omisión inconstitucional en la Ley 9544, al no contemplar criterios de género para fijar una edad diferenciada a fin de que las mujeres que cotizan al Régimen de Jubilaciones y Pensiones del Poder Judicial se puedan jubilar o pensionar con un tiempo menor de servicio.

La magistrada Hernández López también salva el voto y declara con lugar parcialmente las acciones acumuladas por cuanto:

a)considera que es contrario al Derecho de la Constitución excluir de los beneficios que otorgaba la Ley 7333 a las personas que, al momento de promulgarse la Ley 9544 aquí impugnada, contaban con 25 años o más de cotizar para el Fondo de Jubilaciones y Pensiones del Poder Judicial.

b)por la existencia de una inconstitucionalidad por omisión en la Ley 9544 impugnada, debido a que el legislador no le da el mismo trato frente a la ley, a los trabajadores del Poder Judicial en cuanto a la posibilidad de tener incentivos para postergar su derecho a la jubilación, según las características de su propio régimen.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declaran sin lugar las acciones acumuladas en todos los demás extremos reclamados.

Los magistrados Castillo Víquez y Rueda Leal y las magistradas Hernández López y Garro Vargas consignan notas separadas.

La declaratoria de las inconstitucionalidades, con excepción de lo indicado en el punto primero de los agravios de fondo de esta parte dispositiva -que rige partir del mes siguiente de la notificación de la sentencia- tienen efectos declarativos y retroactivos a la fecha de vigencia de la ley, todo sin perjuicio de los derechos adquiridos de buena fe y situaciones jurídicas consolidadas. Comuníquese a los Poderes Legislativo y Judicial y a la Junta Administradora del Régimen de Jubilaciones y Pensiones del Poder Judicial. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese.

6.- Mediante escrito presentado por el representante de los accionantes, en fecha 12 de junio del 2021, solicita se gestione al Instituto de Investigaciones de Ciencias Económicas de la Universidad de Costa Rica, que elabore un informe que permita tener y analizar un criterio técnico actuarial para resolver lo relativo al requerimiento de ampliación del transitorio VI de la ley impugnada. Lo anterior, a efectos de que se analice y determine, si es posible que personas que tengan menos de veintiocho años, cinco meses y veintinueve días de mantenerse laborando en el Poder Judicial, al momento de la entrada en vigencia del transitorio cuestionado, puedan optar por la jubilación en las mismas condiciones que aquellas que tienen veintiocho años, seis meses y más de laborar para la institución, a saber, considerando la sostenibilidad del Fondo con proyección de cien años y aplicando los mismos criterios que se utilizan con las personas que no fueron afectadas por la entrada en vigencia de la ley n° 9544. Este informe es necesario para saber cuántas personas que no fueron incluidas en el transitorio, podrían verse beneficiadas, sin que el Fondo de Pensiones sufra algún tipo de afectación económica o actuarial. Consideran que, es indispensable contar con un criterio técnico que respalde una modificación del transitorio de la ley n° 9544, en el entendido que el Fondo de Pensiones del Poder Judicial es un fondo que no tiene cargo al presupuesto y que ha demostrado ser un fondo robusto y autosostenible desde 1939 y que el hecho de que se declare con lugar la acción y se anule el transitorio VI de la Ley n° 9544, para dar paso a un transitorio más amplio, favorece incluso las finanzas estatales, pues más personas se jubilarían y dejarían de percibir su salario con cargo al Estado, para pasar a recibir una jubilación que el Fondo puede costear, pues es un hecho público y notorio, que el régimen ha mejorado sustancialmente financiera y actuarialmente en diversificación de inversiones. El anterior Presidente de la Junta Administradora del Fondo, señor Carlos Montero, ante una comparecencia en la Corte Plena del Poder Judicial, específicamente en la sesión n° 08-2021, del 22 de febrero de 2021, artículo XVIII, quien manifestó que el Fondo se encontraba en condiciones de asumir las jubilaciones con las condiciones anteriores a la reforma, de personas que al momento de la entrada en vigencia del Transitorio VI, contaban con 20 años o más de servicio en el Poder Judicial y que el Fondo tendría una estabilidad entre 70 y 90 años.

7.- Por resolución de la Presidencia de la Sala, de las 15:44 horas del 14 de febrero del 2022, ante la jubilación de la magistrada Nancy Hernández, y ante el sorteo realizado, se declaró habilitado para conocer del presente asunto al magistrado Jorge Isaac Solano Aguilar. Luego, por resolución de la Presidencia de la Sala, de las 13:58 horas del 22 de marzo del 2022, ante la designación interina del magistrado suplente se declaró habilitado para conocer de este asunto al magistrado José Roberto Garita Navarro.

8.- Por resolución de la Presidencia de la Sala, de las 14:14 horas del 22 de marzo del 2022, ante la solicitud de inhibitoria de la magistrada Anamari Garro Vargas, se tuvo por separada para el conocimiento de este asunto a dicha magistrada. Resultando nombrada, luego de sorteos realizados y de inhibitorias presentadas, el magistrado suplente Alejandro Delgado Faith.

9.- Por resolución n°2022-008712 de las 09:10 horas del 20 de abril del 2022, se da curso a la presente acción de inconstitucionalidad contra el Transitorio VI de la Ley de Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, No. 9544, por la presunta violación a los artículos 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución Política, Convenios 102, 118, 128 y 157 de la OIT, y los principios democrático, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad relativa del patrimonio, no confiscatoriedad y respeto a los derechos adquiridos y situaciones jurídicas consolidadas, artículos 14 del Pacto Internacional de Derechos Civiles y Político y 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales. Se rechaza por el fondo la acción en relación con la violación a los artículos 9, 33 y 167, principios de publicidad, igualdad, proporcionalidad y razonabilidad y progresividad, así como el artículo 208 bis del Reglamento de la Asamblea Legislativa y el artículo 26 de la Convención Americana de Derechos Humanos.

10.- Por resolución de las 11:31 horas del 22 de julio del 2022, en virtud de resolución anterior, se le da curso a esta acción y se confiere audiencia al Procurador General de la República, al Presidente de la Asamblea Legislativa y el Presidente de la Corte Suprema de Justicia.

11.- Los edictos a que se refiere el párrafo segundo del artículo 81 de la Ley de la Jurisdicción Constitucional fueron publicados en los números 143, 144 y 145 del Boletín Judicial, de los días 01, 03 y 04 de agosto del 2022.

12.- La Procuraduría General de la República rindió su informe. Señala en resumen que: ADMISIBILIDAD Y LEGITIMACIÓN DE LOS ACCIONANTES: Conforme se extrae del presente expediente, la legitimación de los accionantes, proviene del recurso de amparo que se tramita en el expediente n.° 19-006391-0007-CO, ante en esa Sala. Proceso que se encuentra pendiente de resolución, donde se alegó la inconstitucionalidad del transitorio impugnado. En consecuencia, se estima que la acción es admisible por reunir los requisitos a que se refiere la Ley de la Jurisdicción Constitucional en sus artículos 73 a 79, tal y como lo resolvió esa Sala en la resolución de las once horas treinta y uno minutos del veintidós de julio de dos mil veintidós. INFORME SOBRE EL TRANSITORIO VI CUESTIONADO: El objeto de esta acción de inconstitucionalidad es determinar si el Transitorio VI impugnado, resulta contrario a los artículos 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución Política, Convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo, así como a los principios democráticos, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad relativa del patrimonio, no confiscatoriedad, respeto a los derechos adquiridos y situaciones jurídicas consolidadas. Para iniciar con nuestro análisis, debemos indicar, en primer orden que de conformidad con el artículo 73 de la Constitución Política, la administración y el gobierno de los seguros sociales corresponde a la Caja Costarricense de Seguro Social. A pesar de ello, en nuestro medio se han creado, por vía legislativa, diversos regímenes especiales de pensiones, sustitutivos del general, cuya existencia ha sido avalada reiteradamente por esa Sala Constitucional, por ejemplo, en su sentencia número 846-92 de las 13:30 horas del 27 de marzo de 1992, en la cual dispuso que no es contraria a la Constitución la existencia de regímenes especiales de jubilación o pensión, a condición de que la contribución del Estado como tal sea igual para todos los regímenes, incluyendo los de la empresa privada; y que la contribución del Estado como empleador, en los diversos regímenes, no sea superior a la que se impone a los demás empleadores, inclusive los patronos particulares, ni, en todo caso, inferior a la de todos los servidores o trabajadores. Partiendo de lo anterior, esta Procuraduría ha indicado que la Asamblea Legislativa tiene no solo la posibilidad, sino el deber, de adoptar las medidas necesarias para garantizar la sostenibilidad de los diversos regímenes especiales de pensiones sustitutivos del general, mediante la aprobación de las leyes que se requieran para el logro de ese objetivo. En esa línea, hemos sostenido que la administración de cualquier régimen de seguridad social requiere flexibilidad para orientar adecuadamente los recursos limitados de que dispone y que esa flexibilidad se afecta cuando se inhibe al legislador −o a quien tenga competencia para realizar cambios en las normas que regulan el tema− para modificar tanto las condiciones iniciales, como las prestaciones en curso. Por consiguiente, no es posible admitir que se petrifiquen las normas que establecieron las condiciones de un determinado régimen, pues ello podría llevar incluso al colapso del sistema de seguridad social de un país, lo cual perjudicaría no sólo a las personas que ya han alcanzado la condición de pensionados, sino también a quienes tienen expectativas justificadas de obtener en el futuro (cuando surja alguna de las contingencias protegidas) prestaciones económicas de la seguridad social. En esa línea puede consultarse el dictamen C-147-2003 del 26 de mayo de 2003, reiterado en el C-181-2006 del 15 de mayo de 2006, en la OJ-021-2007 del 9 de marzo de 2007, y en la OJ-082-2015 del 3 de agosto de 2015. Ahora bien, realizadas las anteriores consideraciones generales, es importante resaltar que el transitorio VI de la ley n°9544 se impugna en cuanto regula que los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión, según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de esa ley, podrán pensionarse al amparo de las disposiciones señaladas en el mencionado texto. De manera que, consideran los accionantes que se les perjudica al pasar de estar a poco tiempo de jubilarse a que actualmente se les aplique una decena o más de años pendientes de laborar, todo por la aplicación automática de una norma que en su entender es inconstitucional y que no se encuentra sustentada en un criterio técnico. Sobre este punto, debemos indicar que el artículo 34 de la Constitución Política establece que a ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas. En el caso de la pensión o jubilación, el derecho a disfrutarla se adquiere cuando se cumplen todos los requisitos previstos en la normativa que rige la materia, requisitos dentro de los que se encuentran la edad, los años de servicio, entre otros. Antes de que se cumplan esos requisitos lo que existe es una simple expectativa de derecho, que no es asimilable, siquiera, a una situación jurídica consolidada. A pesar de lo anterior, esa Sala Constitucional ha validado que, para proteger al eventual beneficiario de un determinado régimen especial de jubilación o pensión de cambios repentinos que pueden agravar los requisitos para obtener el reconocimiento de la prestación, si el legislador así lo estima conveniente y decide regularlo por derecho transitorio, es suficiente el plazo de 18 meses para que la modificación de las condiciones específicas no afecten al administrado que cumpla los requisitos dentro de ese lapso. Así, mediante su sentencia n.° 846-92 de las 13:30 horas del 27 de marzo de 1992, refiriéndose al entonces proyecto de ley de creación del Régimen General de Pensiones con Cargo del Presupuesto Nacional, esa Sala dispuso −entre otras cosas− que: "−en sus artículos transitorios− reconoce la conservación de la situación jubilatoria de los servidores que hubieran cumplido los requisitos para gozar del beneficio, y además lo extiende a los que pertenezcan o hayan pertenecido a los regímenes excluidos para adquirirlo, en un lapso de dieciocho meses, el cual parece razonablemente suficiente para garantizar cualesquiera eventuales derechos de buena fe". En este orden, esa Sala consideró que no solo se garantizaba el derecho de las personas que, al entrar en vigencia la ley, tuvieran cumplidos los requisitos para jubilarse o pensionarse al amparo de la legislación que se pretendía modificar, sino que lo extendió a los que se ubicaran en una edad cercana que les permitiría hacerlo (18 meses posteriores a la reforma), ello siempre y cuando se hubiesen cumplido los supuestos de hecho que dichas normas establecían, a pesar de su derogatoria. (Véase también la sentencia n.° 5476-93 de 18:03 horas del 27 de octubre de 1993 de esa misma Sala). Lo anterior acredita que en nuestro medio se reconoce a nivel constitucional únicamente el "derecho adquirido" a la jubilación cuando se han cumplido todos los requisitos exigidos al efecto, mientras que el mal denominado "derecho de pertenencia" −que no es más que una simple expectativa− queda reducido exclusivamente a quienes a pocos meses posteriores a una reforma (al menos 18 meses), lleguen a alcanzar aquellos requisitos necesarios para recibir el beneficio concreto según la normativa modificada. Y esto último es así, solo cuando el propio legislador, por introducción expresa de normas transitorias, lo haya dispuesto de esa manera. Más allá de eso, ese derecho de pertenencia es una simple expectativa que se extingue con la reforma o derogación introducida por la nueva normativa que sea promulgada. Bajo ese contexto, se debe advertir que, si bien la jurisprudencia constitucional ha reconocido que, en el caso de los regímenes contributivos de pensión, la cotización origina un “derecho de pertenencia”, ello no hace inmodificable las reglas del sistema. Sobre este aspecto en concreto no se puede perder de vista que, conforme lo ha señalado esa Sala“ (…) La pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen, no así el derecho concreto a la jubilación, que se adquiere cuando el interesado cumple con todos los presupuestos establecidos en la ley. (...)" (Resoluciones 2018-19030 del 14 de noviembre de 2018 y 2021-011957 de las 17:00 horas del 25 de mayo del 2021) En este caso, el transitorio VI de la ley n.° 9544 –aun cuando es facultativa para el legislador (por lo que podría no existir sin que ello implique infracción constitucional alguna)- permite afirmar que los cambios en el régimen no fueron intempestivos, repentinos, ni varió drásticamente las condiciones jubilatorias de los accionantes, por lo que no compartimos las razones de inconstitucionalidad aducidas en esta acción. Máxime que, como bien lo ha definido la jurisprudencia de esa propia Sala“(…) no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación.(…)” (Resolución 08712-2022 de las 9:10 horas del 20 de abril del 2022). CONCLUSIÓN: Con fundamento en lo expuesto, sugerimos a la Sala Constitucional declarar sin lugar la presente acción, toda vez que con la disposición transitoria VI de la ley n.° 9544 no se quebrantan las normas convencionales, constitucionales y los principios aludidos en esta Acción. Tampoco, se violenta ningún derecho fundamental de los accionantes.

13.- Rinde su informe, PATRICIA SOLANO CASTRO, en su calidad de Presidenta en ejercicio de la Corte Suprema de Justicia y del Poder Judicial, en resumen: Consideraciones preliminares.- La Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial es un órgano de desconcentración máxima con personería jurídica instrumental, en virtud de ello, es competencia de esa junta referirse también a las implicaciones que tiene el Transitorio VI cuestionado. Por otro lado, la respuesta de esa Presidencia está en función de la posición adoptada por la Corte Suprema de Justicia con respecto de la incidencia del entonces proyecto de ley, en la organización y funcionamiento del Poder Judicial y en el entendido de que impacta de manera grave, desproporcionada y poco razonable en las personas servidoras judiciales, personas jubiladas y pensionadas judiciales, y ante todo en aquellas que ejercen la judicatura. Sobre la Ley 9544 denominada “Reforma Del Régimen de Jubilaciones y Pensiones del Poder Judicial, Contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas”: a). Antecedentes de las consultas realizadas por el Poder Legislativo: 1). La Asamblea Legislativa mediante el oficio número CE208-BIS-02-2016, del catorce de setiembre de dos mil dieciséis, consultó el texto del proyecto de Ley No. 19.922, denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, se rindió el informe en la sesión de Corte Plena número 29-16, celebrada el veintiséis de setiembre de dos mil dieciséis, artículo XXVIII y fue comunicado a la Asamblea Legislativa mediante oficio número SP-288-16, de la Secretaría General de la Corte, del veintiocho de setiembre de dos mil dieciséis, con la indicación expresa de que el proyecto de Ley consultado incide en la organización y funcionamiento del Poder Judicial. 2). Posteriormente, la Asamblea Legislativa en oficio número AL-20035-OFI-0029-2017, del diecisiete de abril de dos mil diecisiete, consultó el texto sustitutivo del proyecto de Ley citado, aprobado en sesión ordinaria número 15, del veintinueve de marzo de dos mil diecisiete. El informe fue conocido en la sesión de Corte Plena número 9-17, celebrada el veinticuatro de abril de dos mil diecisiete, artículo XXIX, en la que se acordó hacerlo del conocimiento de la Comisión Especial Expediente No. 19.922 de la Asamblea Legislativa, con la indicación expresa de que la Corte emitió criterio negativo y se opone al proyecto de ley consultado, debido a que incide en la organización y funcionamiento del Poder Judicial; el acuerdo fue comunicado a la Asamblea Legislativa mediante oficio de la Secretaría General de la Corte, número SP-118-17 del veintiséis de abril de dos mil diecisiete. 3). Por último, mediante oficio número AL-20035-OFI-0043-2017, del treinta y uno de julio de dos mil diecisiete, el Órgano Legislativo remitió consulta sobre el Dictamen Afirmativo de Mayoría del veintisiete de julio de dos mil diecisiete, respecto al texto del proyecto de ley de cita. El informe se conoció en la sesión de Corte Plena número 26-17, celebrada el siete de agosto de dos mil diecisiete, artículo XXX, y el acuerdo fue comunicado mediante oficio de la Secretaría General de la Corte Suprema de Justicia número SP-253-17, del diez de agosto de dos mil diecisiete y en esa oportunidad también se hizo la indicación expresa a la Asamblea Legislativa que “La Corte emite criterio negativo y se opone al proyecto de ley consultado, pues incide en la organización, estructura y funcionamiento del Poder Judicial” b). Antecedentes con relación a la aplicación de la Ley número 9544: El Consejo Superior del Poder Judicial, en sesión número 33-18, celebrada el veinticuatro de abril de dos mil dieciocho, artículo XXXVI, en vista de la aprobación en segundo debate del proyecto de Reforma al Régimen de Jubilaciones y Pensiones del Poder Judicial por parte de la Asamblea Legislativa, acordó conformar un equipo de trabajo con el fin de determinar los alcances y consecuencias al Fondo de Jubilaciones y Pensiones del Poder Judicial. El martes veintidós de mayo de dos mil dieciocho, se publicó en el Diario Oficial La Gaceta, número 89, la Ley número 9544 denominada “Reforma Del Régimen de Jubilaciones y Pensiones del Poder Judicial, Contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas”, cuya vigencia se dio a partir de esa publicación. Con motivo de la entrada en vigor de la citada Ley, el Consejo Superior del Poder Judicial en sesión número 46-18, celebrada el veintidós de mayo de dos mil dieciocho, artículo VI, tomó el siguiente acuerdo: “ARTÍCULO VI DOCUMENTO N° 5803-18 En razón de haberse publicado en La Gaceta N° 89 de hoy 22 de mayo de 2018, la Ley N° 9544, que es Reforma el Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial del 5 de mayo de 1993 y sus Reformas, conforme las atribuciones y responsabilidades que impone a este Consejo el Transitorio I de dicha normativa, se acuerda: 1.) Solicitar a las Direcciones de Gestión Humana, Tecnología de la Información y al Departamento de Financiero Contable, que coordinen lo correspondiente para que a partir de esta fecha se apliquen los rebajos por concepto de aporte obrero (13%), comisión por gastos de administración (5 por mil) de los sueldos que devenguen las personas servidoras judiciales y así como de las jubilaciones y pensiones que se pagan con cargo al Fondo de Jubilaciones y Pensiones del Poder Judicial. De igual forma deberá rebajarse la contribución especial, solidaria, y redistributiva a las personas jubiladas y pensionadas, conforme lo dicta el artículo 236 bis de esta ley. En caso de que se presente algún inconveniente técnico para ello se deberá informar a este Consejo, así como las alternativas para solventarlo. 2.) El Departamento de Prensa y Comunicación Organizacional, tomará nota para hacer la divulgación de este acuerdo. La Dirección Ejecutiva tomará nota para lo que corresponda. Se declara acuerdo firme.”- (El destacado no es del original). Asimismo, en la sesión número 52-18, celebrada el 6 de junio de 2018, artículo XXXI, se conocieron los oficios número N°2014-DTI-2018/2471-DE-2018/313-DGH-2018/295-FC-2018 de 28 de mayo de 2018, de la Directora de Tecnología de la Información, Directora Ejecutiva, Directora de Gestión Humana y jefe del Departamento Financiero Contable. El Departamento de Prensa y Comunicación del Poder Judicial, mediante correo electrónico del jueves 7 de julio de 2018, por solicitud de la Dirección de Gestión Humana, realizó la comunicación a todas las personas servidoras judiciales, asociaciones y otras entidades. c). Sobre el impacto en los salarios, jubilaciones y pensiones del Poder Judicial con la entrada en vigencia de la Ley número 9544, publicada en la Gaceta número 89, del martes 22 de mayo de 2018: El Fondo de Jubilaciones y Pensiones del Poder Judicial, es un fondo de naturaleza constitucional creado para proteger a quienes laboran o han laborado para el Poder Judicial, contra los riesgos de invalidez, vejez y muerte. Por imperativo legal -artículo 236 de la Ley Orgánica del Poder Judicial- según la reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, mediante la Ley número 9544, publicada en la Gaceta número 89, del martes 22 de mayo de 2018, los aportes que se destinan para atender el pago de las jubilaciones y pensiones del Poder Judicial se distribuyen de la siguiente manera: “Artículo 236- El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos: 1) Un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente. 2) Un aporte patronal del Poder Judicial de un catorce coma treinta y seis por ciento (14,36%) sobre los sueldos y los salarios de sus servidores. 3) Un aporte del Estado que será un porcentaje sobre los sueldos y los salarios igual al establecido para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social (CCSS). 4) Los rendimientos y demás beneficios que produzca o pueda llegar a generar, obtener el Fondo. En ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión. Los recursos que se obtengan con la contribución obligatoria establecida en la presente ley ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial.” (El destacado no es del original). Asimismo, el artículo 236 bis del citado cuerpo legal establece una contribución especial, solidaria y redistributiva de los pensionados y jubilados según la siguiente tabla: “a) Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso. b) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso. c) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso. d) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso. e) Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%). En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto a la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión. Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presenta ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial.” Por su parte, el artículo 239 respecto a la creación de la Junta Administrativa del citado Fondo y su financiamiento, en lo que interesa indica lo siguiente: “Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de las Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley. (El destacado no es del original). En razón a lo anterior, el Consejo Superior del Poder Judicial en sesión número 46-18, celebrada el veintidós de mayo de dos mil dieciocho, artículo VI, acordó que con motivo a la entrada en vigencia de la Ley número 9544 que reformó el Régimen de Jubilaciones y Pensiones del Poder Judicial, a partir del 22 de mayo de 2018, se aplicaran los rebajos por concepto de aporte obrero (13%), comisión por gastos de administración (5 por mil) de los sueldos que devenguen las personas servidoras judiciales y así como de las jubilaciones y pensiones que se pagan con cargo al Fondo de Jubilaciones y Pensiones del Poder Judicial y de igual forma la contribución especial, solidaria, y redistributiva a las personas jubiladas y pensionadas, conforme lo dicta el artículo 236 bis. No obstante, como se ha mencionado en el informe rendido a la honorable Sala Constitucional en relación a la Acción de Inconstitucionalidad número 18-007819-0007-CO, donde se discutió la constitucionalidad de la norma supra citada, es preciso tomar en cuenta que las personas servidoras judiciales en el momento de acogerse a su jubilación continúan contribuyendo al Fondo de Jubilaciones y Pensiones del Poder Judicial (aporte obrero de un trece por ciento (13%) según el artículo 236), a diferencia de otros regímenes de jubilaciones y pensiones, por ello el monto de su jubilación se vería disminuido y además de ello se suman otras deducciones como el rebajo por concepto de gastos administrativos de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial (artículo 239) que establece una comisión por gastos administrativos de un cinco por mil de los sueldos que devengan las personas servidoras judiciales, así como de las jubilaciones y pensiones a cargo del fondo, lo que podría volverse confiscatorio (artículo 40 Constitucional) o violatorio al principio de irretroactividad de la ley (artículo 34 de nuestra Carta Magna) al existir derechos patrimoniales adquiridos y consolidados por una ley anterior. De ese modo, el informe aprobado por la Corte Plena en sesión número 26-17, del 7 de agosto de 2017, artículo XXX, señaló lo siguiente: “Se reitera, esta Corte ha sido respetuosa y lo será de los estudios técnicos que se emitan para procurar la sostenibilidad del Fondo, no obstante, no puede obviarse que se está en presencia de derechos fundamentales y es por ello que también la reforma merece un estudio apegado a la técnica actuarial pero también con perspectiva de derechos humanos. En ese sentido cabe destacar que la Recomendación n° 43 de la OIT “Recomendación sobre el seguro de invalidez, vejez y muerte”, en el punto 13), incisos a) y b) señala que: “(a) Para garantizar a los trabajadores una vejez sin privaciones, la pensión debería cubrir las necesidades esenciales. Conviene, por consiguiente, que la pensión garantizada a todo pensionado que haya cumplido un período de prueba determinado se fije teniendo debidamente en cuenta el coste de vida. (b) En los regímenes con cotizaciones proporcionales a los salarios, los asegurados que tuvieren abonadas en su cuenta las cotizaciones correspondientes a la duración media de la vida profesional activa deberían obtener una pensión que corresponda a su situación social durante el período de actividad profesional. A este efecto, la pensión garantizada a los asegurados que tengan acreditados treinta años efectivos de cotización no debería ser inferior a la mitad del salario asegurado desde el ingreso en el seguro o durante un período determinado que preceda inmediatamente a la liquidación de la pensión (El destacado es nuestro). Es claro entonces que tanto el Convenio n° 102 como la Recomendación n° 43 de la Organización Internacional de Trabajo son contestes al establecer que la jubilación y pensión deben satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el periodo de actividad profesional”. Es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa. No se desconoce la necesidad de hacer reformas al Fondo de Jubilaciones y Pensiones, con el fin de procurar la sostenibilidad, pero estas deben responder revestirse de idoneidad y razonabilidad, tal y como lo indicó la Sala Constitucional en el voto n° 2010-1625 de las 9:30 horas del 27 de enero de 2010 al declarar inconstitucional el tope a las pensiones establecido en el artículo 234 de la Ley Orgánica del Poder Judicial. Lo anterior es conteste con lo dicho por la Comisión Interamericana de Derechos Humanos cuando al analizar la admisibilidad del caso “Admisibilidad y Fondo Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras contra Perú”[[]1], esbozó que el artículo 26 mencionado, no es excluyente de la posibilidad de que un Estado imponga ciertas restricciones al ejercicio de los derechos incorporados en esa norma, siempre y cuando se haya hecho un análisis conjunto de la afectación individual del derecho (en este caso a la jubilación y la pensión) con relación a las implicaciones colectivas de la medida.” Aunado a lo anterior, el artículo 225 de la norma establece un tope de jubilación que no podrá ser superior a diez veces ni inferior a la tercera parte del salario base del puesto más bajo pagado en el Poder Judicial, de manera que no previó la norma que el tope impuesto se debía aplicar luego de que se realicen las deducciones de ley y las contribuciones que continúan haciendo las personas jubiladas para la sostenibilidad de fondo de jubilaciones del Poder Judicial, entre ellas los aportes y la comisión por gastos administrativos. Por tal motivo, sobre ese artículo se concluyó que no es suficiente la imposición de un tope jubilatorio, únicamente por pretender poner un límite a las jubilaciones más altas, sino que éste debe ser idóneo y proporcional y deberse a una explicación técnica y jurídica que justifique la reducción de la prestación, esta debía ser suficiente en jubilaciones que nacen de aportaciones que sean tres o cuatro veces mayores al resto de las personas cotizantes, de lo contrario el tope nuevamente se tornaría inconstitucional y se corre el riesgo de que nuevamente se eche de menos tal presupuesto. Para evitar eso, el informe propuso la adición de la frase “luego de las deducciones de ley y renta”, con el fin de dar cumplimiento a la normativa convencional y análisis constitucional aplicable, pero eso fue omitido en la Ley 9544. Por último, en el transitorio VI, aquí impugnado se fijó un rango de 18 meses para las personas servidoras judiciales que cumplan con los requisitos para adquirir a la jubilación y puedan acogerse al derecho de su jubilación al amparo de las disposiciones establecidas en la reforma. Sin embargo, no consta en acuerdos de Corte Plena o del Consejo Superior que el Poder Ejecutivo o Legislativo hayan realizado los estudios técnicos para definir ese rango, lo que podría resultar contradictorio con lo señalado por la Sala Constitucional en reiterados votos, entre otros, la sentencia número 2017-11714, dictada a las doce horas del veintiséis de julio de dos mil diecisiete, que señaló como un requisito fundamental para poder realizar variaciones en los regímenes de jubilaciones y pensiones, que estos deben contar con los criterios técnicos sobre el impacto de esas modificaciones legales, de lo contrario se podría vulnerar el numeral 73 de nuestra Constitución Política. Por otra parte, es preciso mencionar que tal y como se ha indicado en reiterados Recursos de Amparo y Acciones de Inconstitucionalidad planteados por las personas servidoras judiciales contra la Ley número 9544, el personal de la institución ha sufrido la aplicación de una disposición transitoria muy severa y nunca antes aplicada a ningún grupo en materia jubilatoria, lo que ha causado un desestimulo para continuar laborando en la institución, con ello se ha dado una constante fuga de talento ya que se han recibido varias renuncias de personas servidoras judiciales que prefirieron continuar su carrera en otros ámbitos, dados los constantes cambios en las condiciones tanto de jubilación, como salariales, debido a las reformas que se han aplicado en los últimos años. Han reclamado además que hay personas con veinte y más años laborados que han cotizado durante tantos años al Fondo de Jubilaciones y Pensiones del Poder Judicial, que ya contaban con un proyecto de vida futuro una vez que se acogieran al derecho de la jubilación. Sin embargo, sufrieron un cambio drástico debido a la reforma del Transitorio impugnado, lo que les ha afectado de manera importante e incluso han requerido intervención médica dado el impacto de esta reforma en su vida y en la vida de sus familiares. Consideran que debió haberse resguardado su derecho, con un transitorio razonable, justo, sustentado en criterios técnicos y objetivos. Sobre esto, no hay duda de que la institución también ha sufrido las consecuencias de esta y otras reformas que fueron aprobadas en los últimos años, donde el Poder Judicial se ha pronunciado en todo momento que sí afectan la organización y el funcionamiento, como consta en reiterados acuerdos, por ello es necesario revisar esta y otras normas, también desde la posición de la afectación que han tenido en la atención de las competencias establecidas constitucionalmente a este Poder de la República, incluyendo no solo la judicatura, sino los órganos auxiliares de la administración de Justicia como la Fiscalía, OIJ y Defensa Pública, donde se requieren personas competentes e idóneas para que el servicio sea de calidad y se pueda cumplir con el mandato constitucional de justicia pronta y cumplida. d). Criterios de la Corte Plena con relación a las consultas realizadas por la Asamblea Legislativa: Es preciso mencionar que La Corte Plena en las sesiones citadas emitió un criterio negativo sobre las consultas realizadas por la Asamblea Legislativa indicando que sí afectaban el funcionamiento y organización del Poder Judicial, de manera que en el acuerdo de la sesión número 26-17, celebrada el 7 de agosto de 2017, artículo XXX. Aunado a lo anterior, es importante hacer referencia a la nueva Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, que se crea a partir del artículo 239 de la reforma recién aprobada, como un órgano del Poder Judicial con completa independencia funcional, técnica y administrativa y le asigna una serie de funciones que anteriormente correspondían al Consejo Superior del Poder Judicial, como administrador del Fondo de Jubilaciones y Pensiones del Poder Judicial, según los incisos 12, 13, 14 y 15, del artículo 81 de la Ley Orgánica del Poder Judicial, derogados por el artículo 2 de la Ley 9544. Con lo antes señalado, se modifican algunas funciones del Consejo Superior del Poder Judicial y se crea una dependencia interna de la institución, que si bien ostenta personería jurídica instrumental, mantiene una relación orgánica con el Poder Judicial, o sea, continúa subordinada a éste en todos los aspectos no propios de la función que le fue encargada de manera desconcentrada, así como de los aspectos derivados de su personalidad jurídica instrumental. Es oportuno destacar que la ley 9544 presenta muchas vaguedades que deberán ser suplidas vía reglamento, algunos aprobados actualmente por la Corte Plena y que no deben desbordar esa Ley, con el riesgo de apartarse de la voluntad del legislador. Este problema fue señalado también durante la tramitación del expediente legislativo 19.922 que dio lugar a la ley 9544. Lo anterior, debido a que existe una contradicción o choque de normas en relación a la regulación sobre el pago de las dietas a las personas que conforman la Junta Administradora, donde según el artículo 239, párrafo 5°, con la comisión por gastos administrativos (5 x 1000) se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y sus gastos administrativos; pero, que el artículo 240 párrafo 4° a la vez dispone que “los miembros de la Junta Administradora no devengarán ninguna dieta”. Por su parte, la misma Sala Constitucional, en el voto número 2008-5179, de las once horas del cuatro de abril de dos mil ocho, con relación a la afectación en el funcionamiento y organización del Poder Judicial, hizo un amplio análisis relacionado al referido artículo 167 Constitucional. Aunado y de especial importancia conviene reiterar que el procedimiento para la aprobación de la Ley 9544 es el que establece el artículo 167 de nuestra Constitución Política, que refiere a la consulta obligatoria que debe hacer la Asamblea Legislativa a la Corte Suprema de Justicia cuando el proyecto de ley se refiera a la organización o funcionamiento del Poder Judicial y además, para apartarse del criterio de ésta, “se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea”, con ello el legislador garantizó el “principio democrático” que tiene como función que los proyectos de ley que se analizan bajo esas condiciones cuenten con suficiente “oportunidad de reflexión y debate”, como lo ha señalado la Sala Constitucional (voto 3671-2006). Sin embargo, tal y como se resolvió por parte de los señores Magistrados Luis Fernando Salazar Alvarado y Roberto Garita Navarro, en el voto salvado de la resolución número 2022-8712, de las nueve horas diez minutos del veinte de abril de dos mil veintidós, la ley número 9544 presenta el “vicio esencial de procedimiento consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia, razón por la cual estiman innecesario entrar a analizar otros vicios de procedimiento y de fondo planteados por los accionantes…”; de manera que, al presentar la citada ley el vicio de procedimiento constitucional mencionado, la totalidad de la norma incluyendo el transitorio impugnado, serían inconstitucionales. Por último, el Fondo de Jubilaciones y Pensiones del Poder Judicial tiene las mismas características que un fondo de la seguridad social (artículos 73 y 177 constitucionales) y su naturaleza ha sido analizada por parte de esa Sala en el voto número 2014-20474, de las quince horas y cuarenta y cinco minutos del dieciocho de diciembre de dos mil catorce. No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución, pero la disminución del goce jubilatorio, las modificaciones en cuanto a la edad de retiro, el transitorio VI impugnado, y otras reformas, representan un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral. Con ello, se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario –de cuatro veces más que en otros regímenes-, recibirían un beneficio menor. Por otra parte, la renovación del personal que logra permanecer se afecta y el Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse. En virtud de ello, la población judicial está ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral. La regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión y en un momento dado de su vida, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida. La imposición de estas modificaciones legales afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado. Lo anterior además implica una aplicación retroactiva de la ley, aspecto prohibido por el artículo 34 de la Constitución Política. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este procesos, así muchas de estas personas contaban con los proyectos de vida a futuro una vez que estimaban el momento en el cual se podrían jubilar, lo que cambió de manera drástica con las reformas aprobadas y el transitorio impugnado. Se causa un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

14.- Rinde su informe, RODRIGO ARIAS SANCHEZ, en su calidad de Presidente de la Asamblea Legislativa para la legislatura 2022-2023, en resumen: La Ley 9544 de 22 de mayo de 2018, es resultado de la tramitación del expediente legislativo No. 19922, que fue objeto de un procedimiento legislativo especial, por disposición del Plenario Legislativo, en aplicación de normas reglamentarias vigentes. Este proyecto fue asignado a una Comisión Especial que lo dictaminó, luego de su tramitación en Primer Debate, fue objeto de una consulta facultativa ante la Sala Constitucional; en la Resolución No. 2018 -005758 de las quince horas con cuarenta minutos del doce de abril de dos mil dieciocho se resolvió esa consulta. Esa resolución indicó que el proyecto de ley no presentó vicios de procedimiento ni de fondo. El proyecto de ley inicia con el número 19992 y fue presentado el 5 de abril de 2016. En Sesión ordinaria No. 37 del 20 de junio de 2016 del Plenario Legislativo se aprueba una moción vía artículo 208 bis del Reglamento de la Asamblea Legislativa, Esa moción estableció el procedimiento especial aplicado a este proyecto de Ley y en misma moción se creó una Comisión Especial No. 20035 que sería la encargada de tramitar el proyecto. El texto base del proyecto de ley fue consultado al Poder Judicial mediante oficio CE208 BIS 02-20166 de 14 de setiembre 2016) y la Corte respondió mediante Oficio No. SP-288-16 de fecha 28 de setiembre de 2016 (ver folios 284 a 316) del expediente de ley 9544). En el trámite de Comisión del proyecto se aprobaron varias mociones de orden y de fondo. Se aprobó una moción de texto sustitutivo en la sesión ordinaria No. 15 del 9 de marzo de 2017, se consultó al Poder Judicial el texto sustitutivo aprobado mediante oficio AL 20035.OFI.0029-2017 del 17 de abril 2017, la Corte suprema contestó mediante oficio SP-118-17 de 26 de abril de 2017 (ver folios 1829 a 1851). En la tramitación del proyecto, la Comisión Especial consultó y dio audiencia a representantes de diversas instituciones como la Escuela de Ciencias Económicas de la Universidad de Costa Rica, la Superintendencia de Pensiones, y al Poder Judicial. En la iniciativa de ley, se aprobó una moción de texto sustitutivo sesión No. 23 el 27 de julio de 2017, posteriormente, en esa misma sesión el proyecto fue discutido por el fondo y obtuvo aprobación y fue entonces Dictaminado de forma afirmativa de Mayoría en sesión No. 23 el 27 de julio de 2017; el dictamen fue consultado al Poder Judicial mediante oficio AL 20035-OFI-0043-2017 de fecha 31 de julio de 2017 y la Corte Suprema de Justicia respondió mediante oficio SP-253-17 del 10 de agosto de 2017. El proyecto pasó a Plenario, el 1 de agosto de 2017, en el Plenario se tramitaron mociones de fondo que fueron remitidas a la Comisión dictaminadora, la Comisión presentó un informe con varias mociones aprobadas con fecha 20 de setiembre 2017, posteriormente, en dos ocasiones de tramitan mociones de reiteración y se aprueban algunas mociones: en la sesión extraordinaria del Plenario Legislativo No. 13 del 25 de octubre de 2017 y en la sesión extraordinaria No. 14 de 30 de octubre de 2017 El proyecto es aprobado en Primer Debate el 30 del 10 2017. El texto de la redacción final es de fecha 01 de noviembre de 2017. El proyecto fue objeto de consulta facultativa el 1 de noviembre de 2017 y la Sala Constitucional mediante resolución 2018-00578 de 12 de abril de 2018, señaló que no encontró vicios de fondo ni de forma. Asimismo, la sala señala que el proyecto no afecta la organización y funcionamiento del Poder Judicial. Luego, el proyecto se aprueba en Segundo Debate el 19 de abril de 2018 y se convierte en la Ley 9544 de 22 de mayo de 2018. Tal como la misma Sala lo señaló, en la tramitación de la citada ley se estableció un procedimiento amplio para la presentación de mociones que, si bien efectivamente dispuso algunas particularidades con respecto al número de mociones, tiempo de defensa y momento en que estas puedan plantearse, lo cierto es que ello no conllevó, necesariamente, a una lesión de los principios y derechos. Asimismo, tal y como lo señaló la propia Sala Constitucional cabe destacar que del estudio del expediente legislativo, tanto en la Comisión como en el Plenario, los (as) Diputados tuvieron la oportunidad de discutir ampliamente distintos aspectos relativos al expediente legislativo. Publicaciones del proyecto: El texto base fue publicado en el Diario Oficial, La Gaceta 126, Alcance No. 110. El 27 de abril de 2017 publicación del texto sustitutivo aprobado en la sesión No. 15 del 29 de marzo de 2017. El 04 de agosto de 2017 se da la Publicación del Dictamen Afirmativo de Mayoría; el 07 de agosto de 2017 se da la Publicación del Dictamen de Minoría. El 09 de noviembre de 2017 se publica el texto de redacción final aprobado en Primer Debate el 01 de noviembre de 2017. La Sala no encontró en la tramitación del expediente de la Ley 9544, ninguna violación al principio de publicidad. Como puede apreciarse la resolución interlocutoria rechaza por el fondo la acción en relación a la violación alegada a los artículos 9, 33 y 167, los principios de publicidad, igualdad, proporcionalidad y razonabilidad y progresividad, así como, al artículo 208 bis del Reglamento de la Asamblea Legislativa y el artículo 26 de la Convención Americana de Derechos Humanos. Esos alegatos de inconstitucionalidad en efecto deben ser rechazados por tratarse de la reiteración de gestiones iguales que fueron rechazadas, esto con base en el artículo 9 de la Ley de Jurisdicción constitucional y máximo al no encontrar la Sala motivos para variar de criterio o razones de interés público que justifiquen reconsiderar la cuestión. La Sala ya resolvió mediante resolución No. 2018-005758 de las quince horas con cuarenta minutos del doce de abril de dos mil dieciocho, sobre si la Ley 9544 contradice o no los artículos 9, 33 y 167 de la Constitución Publica y sobre el artículo 208 bis del Reglamento de la Asamblea Legislativa; lo hizo al resolver la consulta facultativa, en control previo del proyecto de ley No. 19922 que se convirtió en la Ley 9544. Asimismo, en control constitucional posterior, al resolver varias acciones de inconstitucionalidad acumuladas referentes a la supuesta violación por parte de la Ley 9544 de los artículos 9, 33 y 167 de la Constitución Política, y sobre el artículo 208 bis del Reglamento de la Asamblea Legislativa, mediante una amplísimo análisis en la Resolución No. 2021011957 de las diecisiete horas cero minutos del veinticinco de mayo de dos mil veintiuno, la Sala constitucional también rechaza los alegados en relación con la violación al artículo 9, 33 y 167 de la Constitución Política, principios de publicidad, igualdad, proporcionalidad y razonabilidad y progresividad y sobre el artículo 208 bis del Reglamento de la Asamblea Legislativa y 26 de la Convención Americana de Derechos Humanos. La Sala no encontró en la tramitación del expediente de la Ley 9544 ninguna violación a principios de publicidad, ni afectación a la independencia del Poder Judicial. SOBRE LOS CUESTIONAMIENTOS A LOS QUE LA SALA SI LES DIO CURSO: Los accionantes, en su escrito, no precisan las razones del porque consideran que la Ley 9544 y en concreto su Transitorio IV violan los artículos 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución. La Asamblea Legislativa considera absolutamente infundada, la afirmación realizada por los accionantes, relativa a que la Ley 9544 viole los artículos 11,18, y 27 de la Constitución Política. Analizado el expediente legislativo que dio origen a la Ley 9544, se pudo constatar que en el proceso de su formación y en su contenido, el legislador respeta en todo momento, lo dispuesto en las normas constitucionales del artículo 11, 18, 27. De igual informa no hay ningún indicio que en la formulación de la ley 9544 o en el contenido de ésta, se haya afectado o afecte lo dispuesto en el artículo 28 constitucional. En cuanto al artículo 34 Constitucional, precisamente un aspecto en el que la Ley tuvo especial cuidado y no presenta efectos en perjuicio de persona alguna. Respeta los derechos patrimoniales adquiridos o las situaciones jurídicas consolidadas, aspectos que fueron ampliamente analizados en las resoluciones citadas en las que la Sala Constitucional al momento en que se estudió esa ley. El Alto Tribunal Constitucional, luego de un amplio análisis, explica la diferencia entre derechos adquiridos y situaciones jurídicas consolidadas, asimismo sobre la prohibición de que las leyes tengan efectos retroactivos en perjuicio de los ciudadanos, para concluir que no encontró vicio alguno en la ley 9544. De igual forma, se rechaza lo señalado por los accionantes en cuanto a que la ley 9544 y el transitorio VI que ella dispone, afecte algún derecho a la justicia o que afecte el derecho a la propiedad privada, afecte a la familia, por lo que se rechaza lo alegado respecto a los artículos 40, 41,45, 51,65. Tampoco es de recibo lo alegado en cuanto a que se afectan los artículos 73 y 74 constitucionales, precisamente la Sala Constitucional en las resoluciones citadas hizo una amplia exposición el tema de los derechos a la jubilación y pensiones, y señaló las competencias y los límites que tiene el legislador en cuanto a modificaciones legales indicando que las reformas solo pueden operar si son razonables, bajo criterios técnicos, y si las reformas buscan precisamente la realización de los regímenes y respetando el bloque de constitucionalidad. La Asamblea en la tramitación y formulación de esta ley siempre respecto los principios de razonabilidad, racionalidad, proporcionalidad y tomó sus decisiones sobre una base de una amplia discusión, con informes técnicos y participación de los sectores involucrados. En cuanto a que la Ley 9544 y su transitorio VI violan los artículos 152, 154 y 177, tampoco es de recibo, la Sala al resolver la consulta facultativa y las acciones de inconstitucionalidad con los votos citados, señaló que el proyecto no afecta la organización y funcionamiento del Poder Judicial. No es de recibo considerar que lo dispuesto en la Ley afecta la autonomía e independencia del Poder Judicial. No es de recibo, en lo absoluto, lo señalado por los accionantes en cuanto a que la ley afecte los artículos 188 y 189 y 190 constitucional. Sobre la alegada violación a los Convenios de la Organización Internacional de Trabajo, OIT. Los accionantes señalan que la Ley 9544 concretamente su Transitorio VI contradice varios convenios de la Organización Internacional de Trabajo, OIT, algunos de estos convenios no están incorporados formalmente en el ordenamiento jurídico costarricense, no obstante, debe tomarse en cuenta que la Sala Constitucional, en su sentencia 7498-00, ha definido que existe una vigencia y aplicabilidad inmediata y directa de los tratados internacionales sobre derechos humanos en el país, sin necesidad de aprobación previa. La Sala Constitucional en las resoluciones mencionadas señaló que no se dio una violación al Convenios de la OIT No. 102 en cuanto a los derechos de pensión. De igual forma, no se afecta el Convenio 118, porque no se afecta de ninguna forma la igualdad de trato, cualquier diferenciación se da sobre bases razonadas y justificadas en estudios técnicos; no se da ningún tipo de discriminación, por lo que no es de recibo lo alegado en cuanto a que se viola este convenio. Asimismo, en cuanto al Convenio 157 la Sala en las resoluciones citadas señal que no hay ninguna afectación al Convenio 157 en cuanto al sistema de conservación de derechos adquiridos. Como se señala más adelante, la Sala Constitucional al resolver la consulta facultativa, no encontró en la ley 9544, afectación a los derechos adquiridos y situaciones jurídicas consolidadas. Concretamente, los temas revisados por la Sala Constitucional en la tramitación de esta ley mediante la consulta facultativa fueron sobre los cambios en los requerimientos para obtener el derecho de pensión, y sobre el derecho a la jubilación y la Sala no encontró vicio alguno. Se rechaza de forma contundente lo señalado por los accionantes sobre que la Ley 9544 y su transitorio VI transgredió el articulo 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales. En cuanto a lo señalado en el artículo 14 del Pacto Internacional de Derechos Civiles y Políticos, de una lectura detallada del contenido de ese Artículo 14 confrontada con la tramitación o el contenido a ley 9945, no cabe deducir algún tipo de afectación, por lo que se rechaza este alegato. No es de recibo lo señalado en cuanto a que se afectan los principios de transparencia y seguridad jurídica, buena fe, confianza legítima, intangibilidad relativa del patrimonio, no confiscatoriedad y respeto a los derechos adquiridos y situaciones jurídicas consolidadas. Se rechaza que se afecte el principio de seguridad jurídica, ni en la tramitación de la ley ni en el contenido de la ley se puede señalar que se afectó ninguna manifestación de este principio. Tal como la misma Sala lo señaló, en la tramitación de la ley 9544 se estableció un procedimiento amplio para la presentación de mociones que, si bien efectivamente dispuso algunas particularidades con respecto al número de mociones, tiempo de defensa y momento en que estas puedan plantearse, lo cierto es que ello no conllevó, necesariamente, a una lesión de los principios y derechos. Asimismo, se rechaza la afectación alegada al derecho de propiedad privada. Con la promulgación de las leyes 9544 no se da ninguna violación al derecho a la propiedad privada, ni se da la aplicación de medidas confiscatorias o regresivas. No se afecta el derecho de las personas adultas mayores a ser tratadas con protección especial en el disfrute, goce y ejercicio de sus derechos, en particular de su derecho a la seguridad social en su manifestación de jubilación o pensión por retiro. Ni la violación al derecho a disfrutar de una vida digna y al proyecto de vida digna. Cabe tener presente que sobre los estudios técnicos, Sala Constitucional descartó la existencia de vicio alguno. No existe una vulneración a la seguridad jurídica en su vertiente de retroactividad de la ley sobre situaciones jurídicas consolidadas y derechos patrimoniales adquiridos. En sede legislativa y en conforme a la jurisprudencia constitucional se ha reconocido e interpretado como constitucionalmente válido que en materia de pensiones no existe un derecho adquirido ni situaciones jurídicas consolidadas que se puedan preservar en el tiempo en detrimento de los demás potenciales pensionados a los diferentes regímenes. Esto atentaría contra la no discriminación y el Principio de Legalidad que debe privar en los diferentes sistemas pensionísticos. En torno al término de situación jurídica consolidada, se ha entendido, que si bien, nadie tiene un “derecho a la inmutabilidad del ordenamiento”, el precepto constitucional significa que, si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla, no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. PETITORIA Conforme con el informe rendido, se solicita sea rechazada la acción de inconstitucionalidad.

15.- Mediante resolución de las 15:06 horas del 27 de setiembre del 2022 se previno para que dentro del plazo de tres días, y bajo apercibimiento de rechazar sus solicitudes de coadyuvancia en caso de incumplimiento. Los gestionantes: ALEJANDRO RECHNITZER MORA, ALFREDO JAVIER ARIAS CALDERON, CEFERINO MUÑOZ GONZALEZ, CRISIAM DIONISIA WONG VEGA, DORA MARTINA DEL MILAGRO TRABADO ALPIZAR, ELIAS APU VARGAS, ENRIQUE NAPOLEON ULATE CHACON, ENRIQUETA ROJAS AGUILAR, GINNETTE CAJINA SOLIS, HECTOR MANGLIO SANCHEZ UREÑA, HUBER ANTONIO SOLIS ARAYA, JOHN ALEXANDER QUESADA OLIVARES, JOSE LUIS DE JESUS BENAVIDES UMAÑA, KID DOUGLAS ROMERO LOPEZ, LEDY PATRICIA MIRANDA MATARRITA, LIGIA VANESSA VIQUEZ GOMEZ, MAIKOL ANTONIO SOTO UGALDE, MARIA FELICIA ZOCH BADILLA, MARLYN CASTRO ALVARADO, MARY CRUZ CUBILLO GARCIA, MAYRA CAMPOS ZUÑIGA, MIGUEL ANGEL MACHADO BARQUERO, OLGA MARTA MESEN ARROYO, REYSETH MARIA PERAZA MORALES, RITA TATIANA RODRIGUEZ ARAYA, ROBERTO MONTERO GARCIA, SHIRLEY JAUBERT SOLIS, TERESITA MARIA BOLAÑOS ROJAS, WILBER GERARDO MORENO MENDOZA, WILKKO ADRED RETANA ALVAREZ, YURY ZUÑIGA QUESADA, ALICIA MELENDEZ LEIVA, DIEGO ARMANDO SOLANO AZOFEIFA en su condición de apoderado especial judicial de ANA ISABEL OROZCO ÁLVAREZ, JOSÉ ARNOLDO GONZÁLEZ CASTRO en su condición de apoderado especial judicial de HELLEM JUTTNER RETANA y HELLEN NATALIA MIRANDA SIBAJA y, MARIA VICTORIA SALAS RUIZ en su condición de Secretaria General del Sindicato de la Judicatura (SINDIJUD), agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito de coadyuvancia de conformidad con el artículo 4 de la Ley No. 3245 de 3 de diciembre de 1963. Los gestionantes: ALEXANDRA DEL CARMEN SOLANO GAMBOA, ANA BEATRIZ LOPEZ ALPIZAR, CINDY PATRICIA VEGA MUÑOZ, DORA EMILIA DE LOS ANGELES CHACON SANCHEZ, ERIC RODOLFO MADRIZ IROLA, GISELLE ARGENTINA COREA LOPEZ, GUISELLE AMPARO ALVARADO SANCHEZ, INES MARIA RIVERA POVEDA, JENIFER MAGALI STEPHENSON STERLING, JOSE ALCIONI GERARDO VASQUEZ RETANA, KATTIA NAZIRA VARGAS ORELLANA, LEONARDO FABIO CHACON RIVERA LUIS RODRIGUEZ CRUZ, LUIS EDUARDO RODRIGUEZ QUIROS, MARIA DE LOS ANGELES MARIN BONILLA, RONALD ABARCA SOLANO, RONALD DE LOS ANGELES CRUZ ÁLVAREZ, SONIA LORENA RAMIREZ THORPE, VANESSA VILLALOBOS MONTERO, ANA BEATRIZ LOPEZ ALPIZAR, JUAN CARLOS DE JESUS SEBIANI SERRANO, representante judicial y extrajudicial de la ASOCIACIÓN NACIONAL DE PROFESIONALES DEL PODER JUDICIAL (ANPROJUD) y SANTIAGO GONZALEZ MENA, deberán cumplir con el requisito de autenticación del escrito de coadyuvancia, por parte de un Abogado o Abogada, incluyendo agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito en el que solicitan coadyuvancia activa. En caso de que alguno de los gestionantes sea abogado(a), deberá indicarlo expresamente con el respectivo número de carné, en cuyo caso solo deberán aportar el timbre del citado Colegio. La abogada Karla Patricia Jiménez Mora, carné número 20681 en calidad de abogada autenticante, así como los gestionantes: ALEXANDRA MARBETH UMAÑA OBANDO, ALVARO GARITA BUSTOS, ANA CECILIA DE TRINIDAD MESEN, ANA CRISTINA CERDAS VALVERDE, ANA CRISTINA MORA VALVERDE, ANA HAZEL MURILLO ZELEDON, ANA YENORY BELLANERO ACEVEDO, ANABELLE MENDEZ QUESADA, ARLETTE BRENES RUIZ, ARMANDO ENRIQUE ELIZONDO ALMEIDA, ASTRID MAYELA DEL CARMEN BRENES CASTILLO, CARLOS ALBERTO GOMEZ VILLAGRA, CARLOS CARTÍN VILLALTA, CARLOS MANUEL GERARDO BRENES MONGE, CARMEN MARIA DE JESUS VILLALOBOS RODRIGUEZ, CINDY MARIA LEDEZMA GODINEZ, CRISTOBAL ALBERTO GUERRERO GONZALEZ, EDGAR ALONSO MADRIGAL RAMIREZ, EDUARDO ALONSO BRICEÑO PRENDAS, EFRAIN ANTONIO MOREIRA CAJINA, ERIC GIOVANNI JACAMO JIMENEZ, FANNY MARCELA SOTO DELGADO, FRANCISCO ALEJANDRO CURLING MARTINEZ, FRANZ ADOLFO PANIAGUA MEJIA, FREDDY GUILLERMO RAM BLANCO MORA, GABRIELA EUGENIA NAVARRO MATA, GABRIELA MARIA FERNANDEZ MONGE, GERALD YENKIS CAMPOS OBANDO, GERARDINA ELENA GUERRERO GONZALEZ, GERARDO ALBERTO MONTERO JIMENEZ, GIOVANNI HENRY CHACON VALVERDE, GISSELLE PATRICIA BONILLA CORDERO, HAYDIS MARIA CUBERO RAMIREZ, HECTOR OSVALDO ELIZONDO MARIN, HENNER REIVIN SALAZAR NAVARRO, HUGO JAVIER VARGAS QUIROS, JORGE ALBERTO BARQUERO UMAÑA, JORGE ARTURO TABASH FORBES, JOSE AIDER GUTIERREZ GOMEZ, JOSE ORLANDO FERNANDEZ CORDOBA, KATTIA YANORY MUÑOZ ZAMORA, LILLIANA PATRICIA AZOFEIFA AZOFEIFA, LUIS ALBERTO CAMPOS MOLINA, LUZ MARINA JIMENEZ VARELA, MAINOR ALBERTO MORALES MORERA, MARIA CECILIA CORDERO MARTINEZ, MARIA DE LOS ANGELES MIRANDA MATARRITA, MARIA DEL ROSARIO DOMINGUEZ ESTRADA, MARIA JOSE CASTRO RODRIGUEZ, MARIANELA PERALTA ELIZONDO, MARIANELLA BARQUERO UMAÑA, MARLENE DIAZ NAVAS, MARTIN JAVIER PEREZ RODRIGUEZ, MARVIN SOLORZANO SOLIS, MILANIA MOLINA VILLALOBOS, MONICA DEL SOCORRO MONGE OBANDO, PAOLA ANDREA DELGADO ROBLES, PEDRO JOSE FALLAS HIDALGO, RAYMOND LEONARDO TOSSO TORRES, ROCIO DEL CARMEN MOREIRA SANCHEZ, RODRIGO ESTEBAN VARGAS SALAZAR, ROGER REYES ESPINOZA, RONALD CASTILLO BARRIA, ROSAURA GARCIA AGUILAR, RUBEN ROBERTO DE JESUS MORALES BRENES, RUTH VILLALOBOS CHINCHILLA, SANDRA DE LOS ANGELES CAMPOS OBANDO, SILVIA LORENA DE LA TRINIDAD SEVILLA GUENDEL, SUSANA MARIA PORRAS CASCANTE, VANESSA EUGENIA CID GOMEZ, VERONICA MARINA CALDERON MORALES, VICTOR MANUEL ORTEGA JIMENEZ,VINICIO ALBERTO CHAVARRIA QUIROS, WILKER CARLOS SALAZAR ELIZONDO, YADELI MARIA JAEN CASTELLON, YAMILETH RAMIREZ RODRIGUEZ, JENNY GEORGINA FALLAS UREÑA, CARLOS EDUARDO DURAN MENA, DINO DE JESUS LEZCANO GOMEZ, GUILLERMO ANTONIO MEJIAS VILLALOBOS, HELLEN DE LOS ANGELES CARVAJAL CHAVES, MONICA MARCELA MORA VILCHEZ, CARLOS EUGENIO JESUS LEWIS MONTERO, deberán: justificar y fundamentar el interés legítimo que indican tener en este asunto, toda vez que, omitieron toda indicación al respecto. Asimismo, se le previene a Karla Patricia Jiménez Mora, como abogada autenticante y responsable de aportar el timbre correspondiente a su autenticación, aclarar e identificar en forma clara, ordenada y expresa, a quienes corresponden los 10 enteros de timbres del Colegio de Abogados y Abogadas de Costa Rica, con las numeraciones 465330126, 465330134, 465330142, 465330150, 465330169, 465330177, 465330185, 465330193, 465330207, 465330215, los cuales fueron aportados en forma repetida para dos o más escritos de coadyuvancia y agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación de los demás escritos de coadyuvancia. Se advierte que conforme a la citada ley, deberá cancelarse un timbre por cada firma autenticada. Además de lo anterior, en el caso de CARLOS EDUARDO DURAN MENA, GUILLERMO ANTONIO MEJIAS VILLALOBOS, HELLEN DE LOS ANGELES CARVAJAL CHAVES, MONICA MARCELA MORA VILCHEZ, deberán aportar escrito debidamente firmado y autenticado, por haber omitido hacerlo o bien, porque la firma digital no se pudo comprobar; y a DINO DE JESUS LEZCANO GOMEZ y CARLOS EUGENIO JESUS LEWIS MONTERO, deberán aportar escrito completo, debidamente firmado y autenticado con el respectivo timbre del Colegio de Abogados y Abogadas de Costa Rica, dado que el escrito aportado a los autos se encuentra incompleto e ilegible. La gestionante: ADRIANA DE LA TRINIDAD OROCU CHAVARRIA, deberá acreditar su condición de representante legal de la Asociación Costarricense de la Judicatura(ACOJUD), el tipo de poder que ostenta y el plazo por el cual se encuentra vigente, para lo cual deberá aportar la certificación de personería jurídica vigente de esa asociación. Asimismo, deberá agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito de coadyuvancia, de conformidad con el artículo 4 de la Ley No. 3245 de 3 de diciembre de 1963. Los gestionantes: ADRIANA ISABEL CASTRO RIVERA, GERALD ADOLFO HUERTAS ORTEGA, GERARDO ALONSO SALAS MONTERO, JACQUELINE CHAVES MEJIAS 23-8-2022, JOSE ANGEL JIMENEZ TORRENTES, KARLA ALEXANDRA MADRIZ MARTINEZ, MARIA DE LA CRUZ ARROYO BRAVO, ROBERTO ANTONIO CERDAS QUIROS y JOSE RAMON DE LA TRINIDAD HIDALGO HIDALGO; deberán, justificar y fundamentar el interés legítimo que indican tener en este asunto, toda vez que, omitieron toda indicación al respecto. Asimismo, deberá agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito de coadyuvancia, por cada firma autenticada, de conformidad con el artículo 4 de la Ley No. 3245 de 3 de diciembre de 1963. La gestionante NIXIA ZAIDA MORA VARGAS, deberá acreditar su condición de representante legal de la Asociación de Jubilados y Pensionados del Poder Judicial (ASOJUPEN) y de la Asociación Nacional de Empleados Judiciales (ANEJUD), el tipo de poder que ostenta y el plazo por el cual se encuentra vigente, para lo cual deberá aportar las respectivas certificaciones de personería jurídica vigente de esas asociaciones. Asimismo, deberá justificar y fundamentar el interés legítimo que tiene la ASOJUPEN en este caso. Finalmente, deberá agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito de coadyuvancia. La gestionante: REBECA PATRICIA HIDALGO DUARTE, deberá acreditar su condición de representante legal de la Asociación Nacional de Empleados Judiciales (ANEJUD), el tipo de poder que ostenta y el plazo por el cual se encuentra vigente, para lo cual deberá aportar las respectivas certificaciones de personería jurídica vigente de esas asociaciones, o bien, aclare si acude en forma personal para lo cual deberá justificar cuál es el interés legítimo que le asiste. La gestionante: KAROL MONGE MOLINA, en calidad de apoderada especial judicial de ALLEN LUBANSKI MORA GAMBOA, CARLOTA EDUVIGES ARAUZ GARCIA, CATALINA ROCIO CONEJO VALVERDE, ETHEL ROSARIO CHINCHILLA SANCHEZ, GREDY JAVIER DE LA TRINIDAD HERRERA MORALES, INGRID ETHEL BUITRAGO SANCHEZ, JUAN CARLOS RIVERA RODRIGUEZ, LUIS FERNANDO CHAVES HERNANDEZ, LUIS GUILLERMO FALLAS GONZALEZ, LUIS RAMON DE LA TRINIDAD GAMBOA ROJAS, OSVALDO RODRIGUEZ FLORES, ROLANDO ARTURO OBANDO VARGAS, TONY ALEJANDRO ACUÑA PANIAGUA, YAMILETTE COTO GRANADOS, PAULO FERNANDO HERNANDEZ MURILLO y ALVARO GUERRERO MORA, deberá agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito de coadyuvancia, de conformidad con el artículo 4 de la Ley No. 3245 de 3 de diciembre de 1963. Asimismo, debe aportar los timbres de ley para cada uno de los poderes que aportó, sea, timbre fiscal por ciento veinticinco colones, timbre del archivo nacional por veinte colones y el timbre del Colegio de Abogados por la suma de doscientos setenta y cinco colones. En el caso de los poderdantes CARLOTA EDUVIGES ARAUZ GARCIA, YAMILETTE COTO GRANADOS y JUAN CARLOS RIVERA RODRIGUEZ, el poder no se encuentra debidamente firmado, dado que las firmas no se lograron comprobar; el poder INGRID ETHEL BUITRAGO SANCHEZ se encuentra firmado digitalmente, solo por Karol Monge, por lo que falta la firma del mandatario y del abogado auténticamente, por lo que deberá aportar los poderes debidamente firmados y con los respectivos timbres. Finalmente, deberá acreditar su condición de representante legal de PAULO FERNANDO HERNANDEZ MURILLO y ALVARO GUERRERO MORA, para este proceso, el tipo de poder que ostenta y el plazo por el cual se encuentra vigente, para lo cual deberá aportar los respectivos poderes y certificaciones que así lo acrediten, debidamente firmados y con los timbres de ley. El gestionante: RICHARD WILLIAM HOCKE GONZALEZ, deberá justificar y fundamentar el interés legítimo que indican tener en este asunto, toda vez que, omitió toda indicación al respecto. Asimismo, deberá remitir escrito debidamente firmado y cumplir con el requisito de autenticación del escrito de coadyuvancia, por parte de un Abogado o Abogada, incluyendo agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito en el que solicitan coadyuvancia activa. Los gestionantes: TATIANA RODRIGUEZ RODRÍGUEZ, ANGELA PATRICIA GUZMAN BALLESTERO, LUIS GUILLERMO DE JESUS OBANDO ARAYA, MARIA GABRIELA BUSTAMANTE SEGURA, MARIBEL DE LOS ANGELES BURGOS MATA, MARIO ALBERTO ALVARADO AVILA, deberán justificar y fundamentar el interés legítimo que indican tener en este asunto, toda vez que, omitieron toda indicación al respecto. Los gestionantes: ERICK JOSE ZAMORA CHAVES, LAURA PATRICIA MEZA PEÑA, LIZZETH GERARDINA CRUZ TORRES, MARIA MILENA VEGA CERVANTES, THELMO MAURICIO DE JESUS FLORES LEON, deberán justificar y fundamentar el interés legítimo que indican tener en este asunto, toda vez que, omitieron toda indicación al respecto. Asimismo, deberán cumplir con el requisito de autenticación del escrito de coadyuvancia, por parte de un Abogado o Abogada, incluyendo agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito en el que solicitan coadyuvancia activa. El gestionante: JIMMY ALEXANDER ROBLES HERNANDEZ, deberá justificar y fundamentar el interés legítimo que indica tener en este asunto, toda vez que, omitió toda indicación al respecto. Asimismo, deberá remitir escrito debidamente firmado, por cuanto no se pudo verificar la firma digital en virtud de un error, así como, agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito en el que solicitan coadyuvancia activa. El gestionante: MARVIN ROBERTO LEON SALAZAR, deberá justificar y fundamentar el interés legítimo que indican tener en este asunto, toda vez que, omitieron toda indicación al respecto. Asimismo, deberá remitir escrito debidamente firmado y cumplir con el requisito de autenticación del escrito de coadyuvancia, por parte de un Abogado o Abogada, incluyendo agregar y cancelar el timbre del Colegio de Abogados y Abogadas de Costa Rica por la suma de doscientos setenta y cinco colones, correspondiente a la autenticación del escrito en el que solicitan coadyuvancia activa.

16.- Según constancia del 11 de octubre del 2022 se indican los coadyuvantes que no presentaron escrito o documento alguno para cumplir con lo prevenido. VARGAS, HÉCTOR MANGLIO SÁNCHEZ UREÑA, JOSÉ LUIS DE JESÚS BENAVIDES UMAÑA, MARY CRUZ CUBILLO GARCÍA, OLGA MARTA MESÉN ARROYO, RITA TATIANA RODRÍGUEZ ARAYA, TERESITA MARÍA BOLAÑOS ROJAS, ALICIA MELÉNDEZ LEIVA, ANA BEATRIZ LÓPEZ ALPÍZAR, DORA EMILIA DE LOS ÁNGELES CHACÓN SÁNCHEZ, GISELLE ARGENTINA COREA LÓPEZ, INES MARÍA RIVERA POVEDA, JENIFER MAGALI STEPHENSON STERLING, JOSÉ ALCIONI GERARDO VÁSQUEZ RETANA, RONALD DE LOS ÁNGELES CRUZ ÁLVAREZ, SONIA LORENA RAMÍREZ THORPE, VANESSA VILLALOBOS MONTERO, SANTIAGO GONZÁLEZ MENA, ALVARO GARITA BUSTOS, ANA CRISTINA CERDAS VALVERDE, ANA CRISTINA MORA VALVERDE, ANABELLE MÉNDEZ QUESADA, ARMANDO ENRIQUE ELIZONDO ALMEIDA, ASTRID MAYELA DEL CARMEN BRENES CASTILLO, CARLOS CARTÍN VILLALTA, CARMEN MARÍA DE JESÚS VILLALOBOS RODRÍGUEZ, CINDY MARÍA LEDEZMA GODINEZ, CRISTÓBAL ALBERTO GUERRERO GONZÁLEZ, EFRAÍN ANTONIO MOREIRA CAJINA, ERIC GIOVANNI JACAMO JIMENEZ, FREDDY GUILLERMO RAM BLANCO MORA, GABRIELA EUGENIA NAVARRO MATA, GABRIELA MARÍA FERNÁNDEZ MONGE, GERARDO ALBERTO MONTERO JIMÉNEZ, GIOVANNI HENRY CHACÓN VALVERDE, JORGE ARTURO TABASH FORBES, JOSÉ ORLANDO FERNÁNDEZ CÓRDOBA, LILLIANA PATRICIA AZOFEIFA AZOFEIFA, LUIS ALBERTO CAMPOS MOLINA, MARÍA DEL ROSARIO DOMINGUEZ ESTRADA, MÓNICA DEL SOCORRO MONGE OBANDO, PEDRO JOSÉ FALLAS HIDALGO, ROCÍO DEL CARMEN MOREIRA SÁNCHEZ, RUBÉN ROBERTO DE JESÚS MORALES BRENES, VINICIO ALBERTO CHAVARRÍA QUIRÓS, YADELI MARÍA JAEN CASTELLÓN, ADRIANA DE LA TRINIDAD OROCÚ CHAVARRÍA, en condición de representante legal de la Asociación Costarricense de la Judicatura(ACOJUD), ADRIANA ISABEL CASTRO RIVERA, GERALD ADOLFO HUERTAS ORTEGA, GERARDO ALONSO SALAS MONTERO, NIXIA ZAIDA MORA VARGAS, en condición de representante legal de la Asociación de Jubilados y Pensionados del Poder Judicial (ASOJUPEN) y de la Asociación Nacional de Empleados Judiciales (ANEJUD), REBECA PATRICIA HIDALGO DUARTE, en condición de representante legal de la Asociación Nacional de Empleados Judiciales (ANEJUD). PAULO FERNANDO HERNÁNDEZ MURILLO, TATIANA RODRÍGUEZ RODRÍGUEZ MARIBEL DE LOS ÁNGELES BURGOS MATA.

17.- Mediante resolución de las 16:31 horas del 02 de noviembre del 2022 se: 1) Tuvieron como coadyuvantes a VANESSA MARÍA CASTRO HERRERA, ALEJANDRO RECHNITZER MORA, ALEXANDRA DEL CARMEN SOLANO GAMBOA, ALEXANDRA MARBETH UMAÑA OBANDO, ALFREDO JAVIER ARIAS CALDERÓN, ANA CECILIA DE TRINIDAD MESEN, ANA HAZEL MURILLO ZELEDON, DIEGO ARMANDO SOLANO AZOFEIFA apoderado de ANA ISABEL OROZCO ÁLVAREZ, ANA YENORY BELLANERO ACEVEDO, ANGELA PATRICIA GUZMAN BALLESTERO, ARLETTE BRENES RUIZ, CARLOS ALBERTO GÓMEZ VILLAGRA, CARLOS EDUARDO DURAN MENA, CARLOS MANUEL GERARDO BRENES MONGE, CEFERINO MUÑOZ GONZÁLEZ, CINDY PATRICIA VEGA MUÑOZ, CRISIAM DIONISIA WONG VEGA, DINO DE JESÚS LEZCANO GÓMEZ, EDGAR ALONSO MADRIGAL RAMÍREZ, EDUARDO ALONSO BRICEÑO PRENDAS, ENRIQUE NAPOLEÓN ULATE CHACÓN, ENRIQUETA ROJAS AGUILAR, ERIC RODOLFO MADRIZ IROLA, ERICK JOSÉ ZAMORA CHAVES, FANNY MARCELA SOTO DELGADO, FRANCISCO ALEJANDRO CURLING MARTÍNEZ, FRANZ ADOLFO PANIAGUA MEJÍA, GERALD YENKIS CAMPOS OBANDO, GERARDINA ELENA GUERRERO GONZÁLEZ, GINNETTE CAJINA SOLÍS, GISSELLE PATRICIA BONILLA CORDERO, GUILLERMO ANTONIO MEJÍAS VILLALOBOS, HAYDIS MARÍA CUBERO RAMÍREZ, HÉCTOR OSVALDO ELIZONDO MARIN, JOSÉ ARNOLDO GONZÁLEZ CASTRO apoderado especial judicial de HELLEM JUTTNER RETANA Y HELLEN NATALIA MIRANDA SIBAJA; HELLEN DE LOS ÁNGELES CARVAJAL CHAVES, HENNER GREIVIN SALAZAR NAVARRO, HUBER ANTONIO SOLÍS ARAYA, HUGO JAVIER VARGAS QUIRÓS, JENNY GEORGINA FALLAS UREÑA, JIMMY ALEXANDER ROBLES HERNÁNDEZ, JOHN ALEXANDER QUESADA OLIVARES, JORGE ALBERTO BARQUERO UMAÑA, JOSÉ AIDER GUTIÉRREZ GÓMEZ, JOSÉ RAMON DE LA TRINIDAD HIDALGO HIDALGO, JUAN CARLOS DE JESÚS SEBIANI SERRANO representante judicial y extrajudicial de la ASOCIACIÓN NACIONAL DE PROFESIONALES DEL PODER JUDICIAL (ANPROJUD); KAROL MONGE MOLINA EN SU CONDICIÓN DE APODERADA ESPECIAL JUDICIAL DE ALLEN LUBANSKI MORA GAMBOA, ALVARO DEL CARMEN GUERRERO MORA, CARLOTA EDUVIGES ARAUZ GARCÍA, CATALINA ROCÍO CONEJO VALVERDE, ETHEL ROSARIO CHINCHILLA SÁNCHEZ, GREDY JAVIER DE LA TRINIDAD HERRERA MORALES, INGRID ETHEL BUITRAGO SÁNCHEZ, JUAN CARLOS RIVERA RODRÍGUEZ, LUIS FERNANDO CHAVES HERNÁNDEZ, LUIS GUILLERMO FALLAS GONZÁLEZ, LUIS RAMON DE LA TRINIDAD GAMBOA ROJAS, OSVALDO RODRÍGUEZ FLORES, ROLANDO ARTURO OBANDO VARGAS, TONY ALEJANDRO ACUÑA PANIAGUA, YAMILETTE COTO GRANADOS, KATTIA NAZIRA VARGAS ORELLANA, KATTIA YANORY MUÑOZ ZAMORA, KID DOUGLAS ROMERO LÓPEZ, LAURA PATRICIA MEZA PEÑA, LEDY PATRICIA MIRANDA MATARRITA, LEONARDO FABIO CHACÓN RIVERA, LIGIA VANESSA VÍQUEZ GÓMEZ, LIZZETH GERARDINA CRUZ TORRES, LUIS RODRÍGUEZ CRUZ, LUIS EDUARDO RODRÍGUEZ QUIRÓS, LUIS GUILLERMO DE JESÚS OBANDO ARAYA, MAIKOL ANTONIO SOTO UGALDE, MARÍA CECILIA CORDERO MARTÍNEZ, MARÍA DE LA CRUZ ARROYO BRAVO, MARÍA DE LOS ÁNGELES MARIN BONILLA, MARÍA DE LOS ÁNGELES MIRANDA MATARRITA, MARÍA FELICIA ZOCH BADILLA, MARÍA GABRIELA BUSTAMANTE SEGURA, MARÍA MILENA VEGA CERVANTES, MARÍA VICTORIA SALAS RUIZ SECRETARIA GENERAL DEL SINDICATO DE LA JUDICATURA (SINDIJUD); MARIANELA PERALTA ELIZONDO, MARIANELLA BARQUERO UMAÑA, MARIO ALBERTO ALVARADO ÁVILA, MARLENE DÍAZ NAVAS, MARLYN CASTRO ALVARADO, MARTIN JAVIER PÉREZ RODRÍGUEZ, MARVIN SOLÓRZANO SOLÍS, MARVIN ROBERTO LEÓN SALAZAR, MAYRA CAMPOS ZÚÑIGA, MIGUEL ÁNGEL MACHADO BARQUERO, MILANIA MOLINA VILLALOBOS, MÓNICA MARCELA MORA VILCHEZ, PAOLA ANDREA DELGADO ROBLES, REYSETH MARÍA PERAZA MORALES, ROBERTO ANTONIO CERDAS QUIRÓS, ROBERTO MONTERO GARCÍA, RODRIGO ESTEBAN VARGAS SALAZAR, RÓGER REYES ESPINOZA, RONALD ABARCA SOLANO, RONALD CASTILLO BARRIA, ROSAURA GARCÍA AGUILAR, SANDRA DE LOS ÁNGELES CAMPOS OBANDO, SHIRLEY JAUBERT SOLÍS, SILVIA LORENA DE LA TRINIDAD SEVILLA GUENDEL, SUSANA MARÍA PORRAS CASCANTE, THELMO MAURICIO DE JESÚS FLORES LEÓN, VANESSA EUGENIA CID GÓMEZ, VERÓNICA MARINA CALDERÓN MORALES, VÍCTOR MANUEL ORTEGA JIMÉNEZ, WILBER GERARDO MORENO MENDOZA, WILKER CARLOS SALAZAR ELIZONDO, WILKKO ADRED RETANA ÁLVAREZ, YAMILETH RAMÍREZ RODRÍGUEZ Y YURY ZÚÑIGA QUESADA. 2) Se rechazan las gestiones de coadyuvancia presentadas por CARLOS EDUARDO ACUÑA JIMÉNEZ, ADRIANA TENORIO JARA MARCO VINICIO JIMÉNEZ BONILLA y DONY EVARISTO PÉREZ GUEVARA, quienes se apersonaron el 25 de agosto, 30 de agosto, 27 de septiembre y 30 de setiembre, todas de 2022, fuera del plazo de los quince días posteriores a la primera publicación del aviso, por lo que resultan extemporáneas. 3) Se tienen por contestadas las audiencias conferidas a la Procuradora General de la República, al Presidente de la Asamblea Legislativa y al Presidente de la Corte Suprema de Justicia.

18.- Mediante resolución de las 12:14 horas del 19 de enero del 2023, la Presidencia de la Sala Constitucional declara habilitado para conocer del presente asunto al magistrado Fernando Cruz Castro y deja sin efecto la designación del magistrado suplente dispuesta por resolución de las 15:33 horas del 11 de febrero del 2020.

19.- Mediante resolución n°2023-2328 de las 09:15 horas del 01 de febrero del 2023 se resolvió acumular a esta acción la que se tramita bajo expediente n°22-014613-0007-CO. Al respecto, los argumentos allí indicados se resumen en los siguientes: los accionantes solicitan que se declare la inconstitucionalidad del Transitorio VI de la Ley nro. 9544 del 24 de abril de 2018, publicada en La Gaceta nro. 89 del 22 de mayo de 2018, de "REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL CONTENIDO EN LA LEY 7333, LEY ORGÁNICA DEL PODER JUDICIAL DE 5 DE MAYO DE 1993 Y SUS REFORMAS", en cuanto establece: "TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.0 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto." Afirman, los accionantes, que la norma se impugna por establecer un único plazo de transitoriedad de 18 meses, en forma arbitraria y antojadiza, excluyéndolos, a pesar que son una población a la que solo le faltaba 5 años o menos para optar por la jubilación, sin contar con estudios técnicos claros y objetivos que establecieran la necesidad, idoneidad y proporcionalidad de esa exclusión para alcanzar los fines de la reforma, que son la sostenibilidad financiera del régimen de pensiones y jubilaciones. A pesar de que el legislador contó con otras opciones e incluso se incluyeron textos con normas transitorias escalonadas (folios 2443 y del expediente legislativo, así como el dictamen afirmativo de mayoría de folios 2453 a 2485), finalmente, se optó por lo más gravoso para sus derechos, sin que existieran estudios técnicos rigurosos que así lo hicieran exigible. Estiman que el transitorio VI cuestionado violenta los artículos 11, 18, 27, 28, 34, 40, 41, 45, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución Política, así como los principios constitucionales democrático, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad del patrimonio, no confiscatoriedad y respeto a los derechos adquiridos y situaciones jurídicas consolidadas. También consideran infringidos los Convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo y el artículo 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales. Aseveran que, como punto de partida, debe señalarse que se ha reconocido como derecho fundamental de toda persona el derecho a la jubilación, que deriva tanto de normas contenidas en la propia Constitución Política como de instrumentos internacionales de derechos humanos. Citan el voto nro. 2018- 19030 de esta Sala. Indican que la jurisprudencia constitucional ha reconocido el derecho fundamental a la jubilación, derivado del contenido de los artículos 50, 56, 73 y 74 de la Constitución Politice, así como de instrumentos de derecho internacional aplicables en Costa Rica, tales como los artículos 25, 28, 29 y 30 del Convenio sobre la Seguridad Social, número 102, de la Organización Internacional del Trabajo (en adelante OIT), 16 de la Declaración Americana de los Derechos y Deberes del Hombre, 22 y 25 de la Declaración Universal de Derechos Humanos, 31 de la Carta Internacional Americana de Garantías Sociales y 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales. Claro está, como todo derecho fundamental, ciertamente el derecho a la jubilación se encuentra sujeto a limitaciones o restricciones, las cuales deben ser establecidas mediante ley formal, previo análisis de proporcionalidad en sentido amplio de la medida (legitimidad, necesidad, idoneidad y proporcionalidad en sentido estricto) y siempre y cuando no se vacíe de contenido esencial el goce y disfrute del derecho. De ahí se deriva que no pueda afirmarse que una persona tenga el derecho de jubilarse bajo determinadas condiciones específicas, dado que, es claro que las mismas pueden ser variadas, no existiendo en ese sentido un derecho a la inmutabilidad del ordenamiento jurídico. No obstante, los cambios legislativos que restringen o limitan presupuestos o requisitos más favorables para acceder a un derecho, requieren que exista una necesidad imperiosa, una finalidad legítima, idoneidad y proporcionalidad. En este caso, la Ley nro. 9544 citada pretendía dar una solución a un problema de sostenibilidad financiera del Fondo de Jubilaciones y Pensiones del Judicial, que fue reconocido en estudios técnicos que los legisladores tuvieron la oportunidad de valorar y cuantificar. Con la Ley nro. 9544 citada (cuyo transitorio VI se cuestiona en esta acción) se introdujeron diversos cambios en las condiciones y requisitos para acceder a la jubilación por parte de los empleados (as) y funcionarios (as) del Poder Judicial, siendo los más relevantes los siguientes: 1) se aumentó la edad para jubilarse de 62 años a 65 años; 2) se aumentó la cantidad de años de servicio de 30 a 35; 3) se modificó el cálculo del monto de la jubilación de los últimos mejores 24 salarios a un 82% del promedio de los últimos 20 años de salarios mensuales devengados en vida laboral, actualizados según el índice de precios al consumidor (IPC) definido por el Instituto Nacional de Estadísticas y Censos (INEC) y 4) se modificaron las condiciones de la jubilación anticipada. Agregan que, antes de la entrada en vigencia de reforma realizada mediante Ley nro. 9544, era posible jubilarse de manera anticipada, con un monto proporcional, ya sea al cumplir 30 años de servicio, o bien, al cumplir 60 años de edad, de una otra forma, sea, cumpliendo uno u otro requisito. Señalan, los accionantes, que ellos se encontraban a poco tiempo de poder acceder al derecho a la jubilación, pues habían laborado 25 años o más, de manera que, al cumplir 30 años de trabajar, habrían podido jubilarse de manera anticipada, recibiendo un monto proporcional de jubilación, dependiendo de la edad de cada uno. Sin embargo, al excluirlos del referido transitorio VI, de forma arbitraria, dado que los 18 meses contemplados no obedecen a un estudio objetivo, científico o concienzudo; sino que, únicamente, se partió del hecho de haber sido previsto así por la Sala Constitucional en varios fallos, sin que esta jurisprudencia hubiera sido objeto de análisis para verificar que se estaba ante el mismo supuesto de hecho o al menos similar, al que tuvo en cuenta la Sala para fijar ese rango. Si bien la jurisprudencia de la Sala Constitucional es vinculante, esto es así cuando se pretenda aplicar a supuestos idénticos o al menos similares, pero en el caso concreto eso no es así. Además de que el legislador contó con insumos que le permitían diseñar una norma transitoria escalonada, que causara un menor perjuicio a quienes se encontraban cerca de obtener su derecho a la jubilación y así se realizó en la Comisión Permanente de Asuntos Económicos, donde se aprobó el Dictamen Afirmativo de Mayoría en fecha 27 de julio de 2017 (folios 2453 a 2485 del expediente legislativo 19922). Consideran que, al no incluirlos en el transitorio VI de la Ley cuestionada, sin un análisis técnico-científico, objetivo, claro y cuantificable, se vulnera el principio constitucional de confianza legítima, dado que, hubo un cambio abrupto y significativo de las reglas del juego, vulnerándose de esta manera su buena fe y la seguridad jurídica que los cobijaba dentro de un contrato laboral con determinadas condiciones de jubilación, durante 25 años o más. Citan los votos de esta Sala números 2010-010171, 8000-16, 8689-19, 6198-20 y 2910-18, referentes al principio constitucional de confianza legítima. Argumentan que de tales votos puede colegirse que, conforme el citado principio de confianza legítima -propio de los regímenes democráticos y se encuentra indisolublemente ligado a los principios de seguridad jurídica, equidad y buena fe-, el Poder Legislativo sí puede modificar el ordenamiento jurídico, pero en un caso como este, donde lo que realiza es una reforma a un sistema de pensiones y jubilaciones de un Poder del Estado, en que se dictan normas que imponen mayores restricciones de acceso al disfrute del derecho a la jubilación, se requiere, para no lesionar dicho principio, que exista un fin constitucionalmente legítimo y que los cambios sean cuidadosos escalonados para no causar graves dislocaciones a las expectativas que las personas beneficiarias del Fondo tienen, o sea, que dichos cambios debieron introducirse de una forma gradual. En ese sentido, los cambios o reformas no solo exigen una finalidad legítima, como puede ser la sostenibilidad financiera del Régimen de Pensiones y Jubilaciones, sino, además, que se respete el principio de proporcionalidad en sentido amplio; esto es, que las normas sean necesarias, idóneas y proporcionales en sentido estricto, de manera que las afectaciones sean las mínimas indispensables y absolutamente necesarias para tutelar el fin legítimo. El principio de confianza legítima protege al administrado de que sus expectativas en una determinada situación de hecho o regulación jurídica no serán intempestivamente modificadas y que no se apliquen sin justificación razonable exigencias más gravosas de las ya requeridas. La seguridad jurídica y el principio de confianza legítima amparan la expectativa cierta de que una situación jurídica o material abordada de cierta forma en el pasado, no sea tratada de modo extremadamente desigual en otro período, siendo que si los cambios se realizan por finalidades legítimas, se establezcan medidas transitorias suficientes para que los sujetos puedan acomodar su conducta o, en este caso, su plan de vida, y que sean proporcionadas al interés público en juego, operando este principio de confianza legítima como un verdadero límite al legislador. En amparo de ese principio y por no existir razones técnicas o científicas que exigieran necesariamente un transitorio de 18 meses, en el Dictamen Afirmativo de Mayoría de la Comisión Permanente de Asuntos Económicos del 27 de julio de 2017, se elaboró un transitorio que establecía una aplicación escalonada de la reforma, posibilitando que se acogieran a la pensión no solo las personas trabajadoras a las que faltaban 18 meses para jubilarse, sino toda una gama de trabajadores que tuvieran menos años de servicio, de forma proporcional al tiempo y a la edad (folios 2444 a 2451 del expediente legislativo), incluyéndose a quienes -como ellos- tenían 25 años o más de laborar o cotizar para el Fondo del Poder Judicial. No obstante, se suprimió esa aplicación escalonada y se dejó únicamente un transitorio de 18 meses, que, en todo caso, ya había sido considerado por la jurisprudencia de la Sala como un plazo contemplado como "derechos adquiridos" de jubilación y no solamente una expectativa. En cuanto a los principios de seguridad jurídica, transparencia, buena fe, sistema democrático y solidaridad, señalan que, en todo sistema democrático de derecho, resulta de gran importancia el principio de seguridad jurídica, que implica el "saber a qué atenerse" como regla básica de convivencia y de respeto al ordenamiento jurídico. La seguridad jurídica se ha definido como la confianza que los ciudadanos tienen en la observancia el respeto de las situaciones derivadas de la aplicación de las normas válidas y vigentes, de forma tal, que no puedan darse quebrantos a este sistema que diluyan sus derechos. Es uno de los principios fundamentales de todo ordenamiento constitucional democrático, debido a la necesidad que existe de que los ciudadanos en todo momento sepan a qué atenerse en sus relaciones con el Estado y con los demás particulares. La seguridad jurídica se asienta sobre el concepto de predictibilidad, es decir, que cada uno sepa de antemano las consecuencias jurídicas de sus propios comportamientos. Es la suma equilibrada de los principios de certeza, legalidad, jerarquía y publicidad normativa, irretroactividad de lo no favorable e interdicción de la arbitrariedad. Por su parte, el principio de solidaridad, que rige la seguridad social en nuestro país y específicamente el sistema jubilatorio del Poder Judicial (fundado en lo dispuesto en los artículos 1, 50, 73 y 74 de la Constitución Política) también resulta infringido en cuanto no es razonable que se otorgue un trato discriminatorio y desigual a una categoría de personas trabajadoras que han aportado una parte importante de su salario a alimentar un Fondo por 25 años o más, dándoseles un trato igual al que se otorga a una persona que tiene, por ejemplo, uno o cinco años de laborar en la institución. Para los que tienen 25 años o más de cotizar y laborar bajo un contrato de trabajo determinado, los cambios abruptos y severos que se dieron les producen lógicamente una afectación mayor, en aspectos tales como la edad de jubilación, los años de trabajo y el cálculo de la prestación a recibir periódicamente, siendo de esta manera incluso lesivos de su patrimonio y hasta confiscatorios, pues sus expectativas se mantuvieron a lo largo de un período de tiempo mayor y de un momento a otro vieron desmejoradas sus condiciones, entre estas, la disminución del monto a recibir de jubilación y la extensión del plazo que, dependiendo de la edad en que empezaron a laborar en la institución o de los años reconocidos en otras instituciones, puede ser de 8 años o más. La situación para los que están cerca de la jubilación es sumamente gravosa porque ya han elaborado un proyecto de vida, desde el punto de vista familiar, económico, de aspiraciones u objetivos, con base en esas reglas jurídicas, y, de repente, en forma abrupta y arbitraria, vieron modificadas las condiciones con afectaciones severas a su esfera de intereses, patrimonial, física, psicológica, emocional y hasta motivacional. Agregan que el Convenio 102 de la OIT contempla y desarrolla la base del derecho a la jubilación al contemplar en los artículos 25 y siguientes que todo miembro para el cual esté vigente el convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez. En igual sentido, el Convenio 128, artículos 19 y siguientes. Indican, los accionantes, que es cierto que, en su caso, aún no cumplían 30 años de servicio al momento de la entrada en vigencia de la ley, ni tenían la edad requerida para jubilarse, pero sí tenían una expectativa de derecho o en vías de adquisición, por haber cotizado más de 25 años para el régimen, bajo un principio de buena fe y confianza legítima. El artículo 118 del Convenio de la OIT refiere en su artículo 7 que los estados miembros deben esforzarse en participar en un sistema de conservación de derechos adquiridos y derechos en vías de adquisición. En el mismo sentido, el Convenio 157, artículos 6 y siguientes. Por ende, no solo se parte de una tutela al derecho jubilatorio que se da cuando se cumplen los presupuestos fácticos que establecen las normas, sino que, además, se reconocen y protegen los derechos en vías de adquisición, que, conforme a la cercanía con el momento de alcanzar el derecho, requieren de una tutela o protección del Estado, en la medida en que se garantice que no se produzcan cambios bruscos o intempestivos, sin que sea absolutamente indispensable para alcanzar alguna finalidad de imperiosa necesidad. Ello deriva de una interpretación armónica, pro homine, de las normas internacionales citadas. En el caso que se plantea, la norma impugnada resulta contraria a la normativa expuesta, que conforma un parámetro de constitucionalidad, por tratarse de instrumentos internacionales de derechos humanos; en la medida en que se dictó el transitorio cuestionado sin tutelar los derechos en vías de adquisición de una manera escalonada y proporcionada, concretamente, de quienes tenían 25 años o más de cotizar para el Régimen de Pensiones y Jubilaciones del Poder Judicial. En ese sentido, existiendo alternativas que pudieron lesionar de una manera menos grave a quienes habían cotizado por tanto tiempo, se optó por incluir únicamente un plazo de 18 meses de transitoriedad, sin que existieran estudios técnicos que así lo hicieran exigente para cumplir con los fines de sostenibilidad económica del Fondo, decisión legislativa que a todas luces resulta arbitraria. Aseveran que, al contrastar la norma impugnada con su situación de personas trabajadoras del Poder Judicial, que, al momento de la Reforma al Régimen de Jubilaciones y Pensiones, habían laborado 25 años o más para este Poder del Estado, así como con el contenido de las normas y principios referidos, es evidente que se está ante una norma contraria al Derecho de la Constitución. Señalan que todos los accionantes construyeron un proyecto de vida de acuerdo a las condiciones laborales que tenían dentro de la institución y, específicamente, a las reglas para poder acceder y disfrutar del derecho a la jubilación, que, al tenor de lo dispuesto en la Ley nro. 7333 referida, se podía disfrutar del mismo, cuando mediaran determinadas circunstancias, sea, al cumplir 30 años de laborar o al contar con 60 años de trabajar (jubilación anticipada), con uno u otro supuesto, pese a que no se les fijaría el monto jubilatorio en un 100%, pero sí con un porcentaje proporcional que les permitiría retirarse y contar con un ingreso digno que asegurara su bienestar y el de su familia. Esos eran los supuestos que les generaron una expectativa de derecho o, como ha denominado la OIT y la Corte Constitucional de Colombia, "derechos en vías de adquisición" (T-631-2002 y T-235-2002). De conformidad con el principio de confianza legítima que debe prevalecer en un Estado Democrático de Derecho, donde se tutela la seguridad jurídica, la transparencia y buena fe, esas condiciones únicamente podían ser modificadas por razones de interés público o causas constitucionalmente aceptables. El artículo 28 de la Constitución Política establece que los derechos fundamentales pueden ser restringidos únicamente a través de una ley, siempre y cuando esto sea estrictamente necesario para tutelar el orden público, la moral o los derechos de terceros. En este caso, se les alteró de forma drástica, abrupta y no progresiva ni escalonada, el proyecto de vida, a pesar que habían depositado la confianza legítima y buena fe en el patrono (Estado) y en las normas que regían el contrato laboral, y habían cotizado por 25 años o más con un aporte significativo de su salario al Fondo de capitalización. Alegan que, en este caso, sí hubo estudios técnicos -concretamente, actuariales- que determinaron que el Fondo de Pensiones y Jubilaciones del Poder Judicial tenía problemas de sostenibilidad. De ahí que la Corte Suprema de Justicia suscribió un convenio con el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, para que se realizaran estudios actuariales. Se trata del Convenio R-CONV-005-2016 entre el Poder Judicial y la Universidad de Costa Rica, en el que participaron varios equipos interdisciplinarios, entre estos, uno del Poder Judicial. La directora ejecutiva del Poder Judicial (folio 1322 y siguientes del tomo 6 del expediente legislativo 19922) señaló que desde el último estudio actuarial de Melinsky la situación del déficit actuarial pasó de 2.48 millones a "un escenario que ronda los 5 mil millones de millones", lo cual aduce dicha funcionaria que se produjo por la falta de toma de decisiones. En la comparecencia del doctor Max Soto Jiménez del Instituto de Investigaciones Jurídicas de la Universidad de Costa Rica (IICE) y parte de su equipo le hacen ver a la Comisión Legislativa que encontraron un déficit actuarial 9.7 veces el monto de las reservas acumuladas y un 36% valor presente de todo el pasivo del régimen. Esta misma aseveración se realiza en el informe IICE 3. En la comparecencia del doctor José Antonio Peña del IICE también se refirió a la gravedad de la situación del Fondo y la necesidad de tomar medidas (tomo 10, folios 2274 y 2275). Consta en los informes presentados por la Comisión Permanente de Asuntos Económicos y expuestos en diferentes audiencias conferidas, que había distintas alternativas para darle la sostenibilidad financiera al Fondo y se estudiaron varios escenarios posibles. Además, a folio 2443 del expediente legislativo, se aprecia cómo se contaba con la redacción de una norma transitoria escalonada, lo cual también se incluyó en el Dictamen Afirmativo de Mayoría de la Comisión del 27 de julio de 2017; no obstante, sin una justificación razonable, el legislador omitió optar por alguna propuesta técnica menos gravosa, proporcional o escalonada para las personas trabajadoras que se encontraban cercanas a la fecha de su jubilación, que igualmente diera satisfacción al interés de equilibrar el Fondo de Pensiones y Jubilaciones como objetivo legítimo de la reforma; en su lugar, se adoptó la tesis de los 18 meses que es un plazo que ha sido utilizado por la Sala para escenarios distintos, en los que no existen ni se reclamaron otras alternativas posibles, ni se realizaron estudios técnicos al respecto. Alegan que la Sala, en esos casos, tuvo que construir ese parámetro de 18 meses porque no había ninguno otro. Ejemplo de ello son las siguientes sentencias: En la sentencia 846-92 de las 13:30 horas del 27 de marzo de 1992, lo que resuelve la Sala es una consulta legislativa facultativa respecto del "Proyecto de Ley de Creación del Régimen General de Pensiones con cargo al Presupuesto Nacional, Otros Regímenes Especiales y Reforma a la Ley número 7092 del 21 de abril de 1988 y sus reformas, Ley de Impuesto sobre la Renta". En dicho fallo se le consulta concretamente a la Sala qué sucede si en contraposición al Convenio 102 de la OIT, se estima que los trabajadores que aún no tienen la edad ni el período de cotización, poseen una expectativa de derecho y no un derecho adquirido, en el supuesto de que se dé una legislación que modifique esos requisitos para acceder a la jubilación. Ante lo que la Sala refiere que ese tema carece de interés porque en el proyecto de ley consultado se reconoce la conservación de la situación jubilatoria de los servidores que hubieren cumplido los requisitos para gozar del beneficio y "además lo extiende a los pertenezcan o hayan pertenecido a los regímenes excluidos para adquirirlo, en un lapso de dieciocho meses, el cual parece razonablemente suficiente para garantizar cualesquiera derechos de buena fe". Se trata de una apreciación de la Sala en donde no se valoraron aspectos específicos como qué variaciones se producen, cuáles son los efectos y tampoco se hace referencia a ningún análisis de proporcionalidad ni estudio técnico. Sencillamente, a los magistrados les pareció que, con la entrada en vigencia de dicha ley, los dieciocho meses eran suficientes para garantizarlo, sin ningún elemento de juicio más que les parecía prudente. En la sentencia 6491-98 de las 9:45 hrs. del 10 de setiembre de 1998, se resuelve una acción de inconstitucionalidad contra los artículos 224 y 225 de la Ley Orgánica del Poder Judicial y su transitorio XIII, Ley 7333 del 5 de mayo de 1993. Se hace una diferenciación entre lo que es la pertenencia al régimen y el derecho a la jubilación propiamente, que es cuando concurren los requisitos de la ley independientemente de que se hubiere reclamado o no, añadiendo que ese derecho a la jubilación se ha venido extendiendo a dieciocho meses anteriores al cumplimiento de los requisitos para adquirir el derecho, pues se trata de personas muy cercanas a la fecha de jubilación e indica en relación con estas personas que "no solo tiene una expectativa, sin que adopta medidas irreversibles para prepararse para su cambio de estado". Se cita al respecto la sentencia 1633-93 de las 14:43 hrs. del 13 de abril de 1993, donde se hace alusión a que la Sala ha considerado que cuando opera una reforma legal derogatoria deben respetarse los derechos adquiridos de quienes ya tenían los requisitos para jubilarse y además los de quienes cumplirían con los requisitos dieciocho meses después de la derogatoria, lo cual indica "la Sala ha aceptado como razonable en votos anteriores". Una vez más, no se parte de razones objetivas, cuantificables y que obedezcan a aspectos de proporcionalidad, sino a un plazo prudencial. En la sentencia 3551-14 de las 9:05 hrs. del 14 de marzo de 2014, la Sala resolvió un recurso de amparo interpuesto contra la CCSS por una variación de los presupuestos para acceder a la jubilación. En dicha sentencia se citó a su vez el fallo 1633-93 de las 14:33 hrs. del 13 de abril de 1993 (que cita los votos 1147-90 y 2136-91) y que señala que en casos de derogatoria del régimen deben quedar a salvo los derechos de todas las personas que se hubiesen jubilado, de aquellas que reunían los requisitos, aunque no la hubieren solicitado formalmente y añade que además "aún dieciocho meses después de la derogatoria de ley, período que la Sala ha aceptado como razonable en votos anteriores". En consecuencia, aplicando ese parámetro se declaró con lugar el amparo por estimar que no se acreditó que, en el cálculo de la proyección de la pensión a nombre de la amparada, se hubiera tomado en cuenta el plazo prudencial de dieciocho meses anteriores a la reforma, donde ya se reconocen derechos adquiridos por "tratarse de personas muy cercanas a la fecha de jubilación". En la sentencia 12606-14 de las 9:05 hrs. del 1 de agosto de 2014 se resolvió también un recurso de amparo contra la CCSS, donde se citan los mismos argumentos para afirmar que en el caso que se produzcan variaciones reglamentarias en los requisitos, debe considerarse el plazo de dieciocho meses para definir los derechos adquiridos en materia de pensiones. En la sentencia 1214-15 se conoció de un recurso de amparo contra la CCSS, donde se citan varios antecedentes en los que también se afirma que cuando se dan cambios en los presupuestos o requisitos, o bien derogatorias, deben respetarse los derechos adquiridos, incluyendo a las personas que cumplan los requisitos aún dieciocho meses después de la reforma. En la sentencia 2655-15 de las 14:30 hrs. del 24 de febrero de 2015, se resuelve un amparo contra la CCSS que hace referencia a la jurisprudencia indicada y señala que "es reconocido que tales regímenes están regulados mediante ley, la cual puede ser modificada o derogada en virtud de otra ley, y pretender que los presupuestos no pueden ser modificados nunca implicaría crear una limitación a cada régimen de pensiones y jubilaciones ya existente, que tiene rango constitucional en cuanto a su creación en general, pero no en cuanto a las especificaciones en particular. (En este mismo sentido, ver los pronunciamientos número 1341-93, de las 10:30 horas del 29 de marzo de 1993 y 3063-95 de las 15:30 horas del 13 de junio de 1995). Este concepto se ha visto ampliado posteriormente a raíz de decisiones legislativas y de este Tribunal, en las que se reconoció un tiempo prudencial -dieciocho meses- anterior al cumplimiento de los requisitos para adquirir el derecho, pues se trata de una persona muy cercana a la fecha de jubilación, quien no solo tiene una expectativa, sino que adopta medidas irreversibles para prepararse para su cambio de estado". Se resuelve con un estese a lo resuelto en la sentencia anteriormente expuesta. Alegan que, en consecuencia, la Sala ha establecido el plazo de 18 meses en supuestos donde no constan otros parámetros, pues, cuando se da una derogatoria o reforma a un régimen de jubilación debe protegerse a los trabajadores que tienen los requisitos para jubilarse, aunque no lo hubieren solicitado y, además, a los que solo les falten 18 meses para jubilarse, plazo que se considera ya como un derecho adquirido. En estos supuestos jurisprudenciales se constata que no existe otro parámetro ni estudios técnicos que establezcan resultados diferentes. De hecho, el legislador en otras reformas a leyes de pensión ha optado por plazos mayores al regular el transitorio o la vigencia de la norma derogada, tal y como bien se expuso en la acción de inconstitucionalidad número 19-024589-0007-CO, donde se citan las siguientes leyes: Ley número 8536 aprobada el 27 de julio de 2006, que adiciona al artículo 2 de la Ley número 7531; Ley número 7946, aprobada el 18 de noviembre de 1999; Ley número 8721, aprobada el 18 de marzo de 2009; Ley 8777 número, aprobada el 7 de octubre del 2009, entre otras. Los 18 meses constituyen un mínimo garantizado jurisprudencialmente, donde se reconocen derechos adquiridos, sin que esto derive de ninguna norma o principio constitucional, convencional ni legal. Se trata de un plazo prudencial, como muchos otros que ha establecido la jurisprudencia constitucional en ausencia de otros elementos. No obstante, en este caso, los legisladores tuvieron acceso a estudios actuariales que arrojaban escenarios distintos frente a la modificación de determinadas variables y en varios de los textos que discutió la Comisión y que aprobó en el Dictamen Afirmativo de Mayoría del 27 de julio de 2017, incluyó un texto de transitorio escalonado (folios 2453 a 2485 del expediente legislativo citado); pese a ello, el legislador, al modificar el régimen de pensiones y jubilaciones, no realizó el test de proporcionalidad en sentido amplio para examinar cuál era el plazo transitorio adecuado, necesario, idóneo y proporcional, que lesionara lo menos posible los derechos o expectativas; sin poner en peligro la sostenibilidad del Fondo que es el fin legítimo de la reforma. En los casos en que se restringe o limita un derecho fundamental, la carga de la prueba no la tiene el perjudicado con la restricción o limitación, sino la Administración, en este caso, el Estado legislador. Los elementos de juicio para demostrar que las medidas o reformas legales en este supuesto no son desproporcionadas corresponde aportarlos al Estado. También debe tenerse claro que los cambios producidos en la legislación no fueron leves, pues su magnitud es de tal relevancia que en este momento muchas personas que estaban a pocos días de poder optar por su jubilación, a raíz del cambio legislativo, deben trabajar, por ejemplo, 8 o 10 años más, dependiendo del rango de edad en el que se encuentren y de la fecha de ingreso a laborar a la institución o total de años de servicio. Estas variaciones, que no son poca cosa, máxime en las edades donde ya no se cuenta con la misma energía, estado físico, mental, anímico o emocional, donde ya no resulta posible encontrar fuentes de similares, porque ya no se es competitivo en el mercado laboral, y porque en su momento la persona trabajadora se había decantado por tener una carrera dentro de Administración de Justicia, alimentado esto en una confianza legítima de que las reglas primordiales del contrato laboral no les iban a ser modificadas abruptamente en su perjuicio. Véase que no se demostró que el plazo de 18 meses fuera relevante para efectos de la solvencia actuarial. El Superintendente de Pensiones se refirió a 18 meses únicamente porque dijo que así lo había resuelto la Sala Constitucional sin dar ningún elemento de juicio para establecer que dicha jurisprudencia era aplicable a esta reforma (folio 1711 del expediente legislativo) y, de igual modo, la Procuraduría General de la República señaló que debía aprobarse un transitorio de 18 meses porque la Sala Constitucional así lo había resuelto, sin realizar análisis alguno de si esa jurisprudencia resultaba aplicable o no al supuesto de hecho o si era diferente. Tampoco realizó un examen de proporcionalidad. Obsérvese que en una de las comparecencias de los técnicos o expertos que elaboraron el estudio, el doctor Max Jiménez, únicamente afirma "lógicamente, un transitorio superior a los 18 meses afecta negativamente la solvencia actuarial del fondo" (folio 2945 del expediente legislativo), pero sin dar las razones del por qué, sin realizar un estudio a fondo de las distintas posibilidades de plazos de transitorios, de manera que se causara un mal menor a determinada población de trabajadores con expectativas más cercanas y con mayor afectación. En el expediente legislativo constan, a partir del tomo 9, folio 2230, diferentes escenarios de los ajustes que estiman los investigadores del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, podían realizarse en diferentes aspectos de la jubilación, para lograr la estabilidad del régimen de pensiones. Se expone como producto 6 del proyecto "Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial", el informe final: "Recopilación e Informe Final: Conclusiones y Recomendaciones", con fecha 19 de julio de 2017. Dicho informe consta de 8 capítulos e incluye información sobre el entorno, el Fondo del Poder Judicial, las poblaciones participantes, aspectos legales del régimen, etc. Se refieren al marco vigente, al texto sustitutivo, al texto de Corte Plena y a los marcos alternativos presentados por ellos mismos. En cuanto a los tres primeros (marco vigente, texto sustitutivo y texto de la Corte Plena) analizaron que ninguno pasa una prueba de solvencia actuarial. A folio 2242 se encuentra agregado un cuadro comparativo en donde se establecen cuatro marcos o escenarios posibles: el marco IICE l, el IICE 2, el IICE 3 y el IICE 4. En cada uno de supuestos se analizan los requisitos y beneficios prometidos. Insisten que si bien la Sala en diversos fallos ha establecido el plazo de 18 meses como plazo que debe respetarse cuando se deroga o modifica un régimen jubilatorio, esto ha sido así porque en esos supuestos no se realizaron estudios técnicos donde pudieran valorarse otros plazos en relación con la afectación a la sostenibilidad del régimen. En cambio, en este caso, más bien la carga de la prueba la tenía el legislador, en el sentido de determinar que esos 18 meses eran los necesarios, únicos e indispensables, de manera tal que a los servidores que les faltaba poco tiempo para jubilarse se les afectara de la forma menos gravosa, sea, que la afectación para ese estadio de la población fuera la menor. De manera que no les corresponde probar que esos 18 meses no sean razonables ni proporcionados, sino a la inversa, la carga de la prueba para demostrar que la reforma y el transitorio aprobado fue el menos lesivo es del legislador, al dictar normas que restringen o cercenan requisitos o condiciones para disfrutar el derecho. Reiteran que los cambios producidos con la reforma son cambios sustanciales, que implican que personas a las que les faltaba muy poco tiempo para jubilarse, por aproximarse a cumplir los 30 años de servicio, ahora deben trabajar hasta 10 años más para poder llegar a la edad mínima de 65 años, siendo que con la legislación derogada tenían la posibilidad de jubilarse, no con el 100% del monto, pero sí con un monto proporcional, dependiendo de la edad de cada uno y las cuotas que restaban por cubrir para poder jubilarse con el 100%. Esto por cuanto la normativa anterior establecía la posibilidad de una jubilación anticipada, mucho más favorable que la actual. Ciertamente, la afectación de las personas trabajadoras con más de 25 años de laborar para la institución debía ser tenida en cuenta no solo dentro del estudio actuarial, lo cual no se hizo, sino que además debió examinarse el impacto general sobre los trabajadores, el desgaste físico, psicológico y considerable, entre otros factores, que no fueron considerados del todo. No se comprobó con estudios técnicos en el trámite del expediente legislativo 19922, que existiera un peligro o afectación considerable para las finanzas del Fondo si se permitía jubilarse con las reglas anteriores, a la población que tenía 25 años o más de trabajar y cotizar. Ni siquiera se observa en el expediente legislativo que se valorara cuántas personas eran las que se encontraban en esta situación. Véase que en el acta de la sesión ordinaria número 20 del 19 de julio de 2017 (folios 2265 a 2267 del expediente legislativo), el doctor Max Jiménez Soto, quien fue parte del equipo que elaboró los estudios actuariales del Instituto de Investigación en Ciencias Económicas de la Universidad de Costa Rica, afirmó ante una intervención de la diputada Sandra Piszk, quien señaló que: "nuestro objetivo es que esta modificación entra en vigencia, al igual que han entrado en vigencia otras reformas de pensiones a los 18 meses, tal y como lo establece la Sala Constitucional", lo siguiente: "En efecto los primeros productos, el del régimen vigente, el de los gremios y el de la Corte, incluían transitorios que contemplaban diferentes grupos que se pensionaban de acuerdo con el régimen vigente, o una gradualidad que les aplicara al régimen nuevo. Las estimaciones incluyeron eso, de hecho, el IICE l, como explicaba don Ronald, básicamente, el de la Corte sin el transitorio para lo cual, entones, mide más o menos cuál era el efecto de transitorio en la solvencia". Aseveran que luego hace una valoración sin sustento alguno y sin que se indiquen cifras concretas: "Lógicamente, entre más posposición más te afecta la solvencia. Los últimos marcos que se recomiendan aquí, es el 3 y el 4, contemplan exclusivamente lo que usted ha señalado de dieciocho meses." A folio 2267, se aprecia la intervención del doctor Ronald Cartín Carranza, quien señala: "Básicamente los marcos específicamente del IICE, se pasó a tratar de modelar lo más cercano posible a dieciocho meses. En realidad, para serles sincero, a nivel de modelamiento va a ser de dos años. O sea, los que tienen veintiocho años de antigüedad para arriba, el modelo matemático asumió que a ellos se les iba a respetar un transitorio, es decir, no se midió en forma completamente precisa pero eso por el mismo modelamiento de las probabilidades de vida, se tienen por algo, no para cada medio año y hay razonamientos. Si uno es teórico puede dedicarse medio año a eso, pero digamos, para contestarle se estimuló lo más cercano posible y la simulación asumió que todos los que tengan más de veintiocho de antigüedad, a ellos sí se les iba a respetar el derecho de mantener su pensión en el régimen vigente. Eso es lo que usted ve ahí cuando dice "participación con años de servicio, mayor o igual a veintiocho". A nivel de pasarlo a reglamento, lo que recomendaría -y recomendamos nosotros- es votarlo a dieciocho meses, lo que la Sala Constitucional dictó". Como puede verse, a pesar de ser quienes realizaron el estudio actuarial, no profundizaron respecto de las razones técnicas de la norma transitoria, sino que prácticamente siguieron un modelo que según ellos debe ajustarse a lo ordenado por la Sala Constitucional, en cuanto a que deben ser 18 meses; pese a que, en realidad, la Sala no ha establecido como regla dicho plazo, sino que lo ha formulado cuando no existe ningún otro parámetro. De hecho, la Comisión en el Dictamen Afirmativo de Mayoría aprobado en la sesión del 27 de julio de 2017 (folios 2443 a 2451) diseñó una norma transitoria escalonada, que se ajustaba de mejor manera a la tutela de los derechos en vías de adquisición o expectativas de derecho. La misma Sala Constitucional ha considerado que por la cercanía del tiempo para jubilarse, no puede darse el mismo trato a todas las personas trabajadoras; por eso ha fijado los 18 meses en supuestos donde no existían otros parámetros ni estudios técnicos al respecto. Incluyendo a esta categoría dentro del reconocimiento de derechos adquiridos. En la sentencia 5758-18 de la Sala Constitucional, se estimó que, si bien el derecho a la jubilación no es irrestricto y por ello puede ser sometido a determinadas limitaciones, esas variaciones son permitidas siempre y cuando sean establecidas mediante una ley formal, sean razonables y no se afecte su contenido esencial. En reiterados pronunciamientos, ha indicado la Sala que los principios de razonabilidad y proporcionalidad constituyen un parámetro de constitucionalidad de los actos sujetos al derecho público (leyes, reglamentos y actos administrativos en general). Siguiendo la doctrina alemana, la Sala Constitucional ha considerado que los componentes básicos de la proporcionalidad lo son la legitimidad, la idoneidad, la necesidad y la proporcionalidad en sentido estricto. Citan las sentencias nro. 3933-1998 de las 09:50 hrs. de 12 de junio de 1998 y 8858-98 de las 16:33 hrs. de 15 de diciembre de 1998. En consecuencia, cuando de restricción de determinados derechos fundamentales se trata, el principio de proporcionalidad impone el deber que dicha limitación se encuentre justificada por una razón de peso suficiente para legitimar su contradicción con el principio general de igualdad. Un acto limitativo de derechos es razonable cuando cumple con una triple condición: debe ser necesario, idóneo y proporcional. La necesidad de una medida hace directa referencia a la existencia de una base fáctica que haga preciso proteger algún bien o conjunto de bienes de la colectividad -o de un determinado grupo- mediante la adopción de una medida de diferenciación. Es decir, que si dicha actuación no es realizada, importantes intereses públicos van a ser lesionados. Si la limitación no es necesaria, tampoco podrá ser considerada como razonable y, por ende, constitucionalmente válida. La idoneidad, por su parte, importa un juicio referente a si el tipo de restricción adoptado cumple o no con la finalidad de satisfacer la necesidad detectada. La idoneidad de la medida nos indicaría que pueden existir otros mecanismos que de mejor manera solucionen la necesidad existente, pudiendo, en algunos de estos, cumplir con la finalidad propuesta sin restringir el disfrute del derecho en cuestión. Por su parte, la proporcionalidad en sentido estricto nos remite a un juicio de necesaria comparación entre la finalidad perseguida por el acto y el tipo de restricción que se impone o pretende imponer, de manera que la limitación no sea de entidad marcadamente superior al beneficio que con ella se pretende obtener en beneficio de la colectividad. De los dos últimos elementos, podría decirse que el primero se basa en un juicio cualitativo, en cuanto que el segundo parte de una comparación cuantitativa de los dos objetos analizados. Para realizar el examen de proporcionalidad en sentido amplio o razonabilidad de la medida regresiva del derecho a la jubilación, primero debe establecerse si las reformas realizadas al Régimen de Pensiones y Jubilaciones del Poder Judicial tenían un fin legítimo. Con base en los estudios actuariales, informes y comparecencias que constan en el expediente legislativo es claro que el régimen sí se encontraba en problemas de sostenibilidad y en ese sentido la reforma sí tenía un fin legítimo. En lo que se refiere concretamente al plazo del transitorio, aspecto al que se limita esta acción, estiman que el mismo no es proporcionado, necesario ni idóneo, pues el legislador tenía insumos técnicos y científicos suficientes para idear una transición escalonada, razonable, que no afectara con tanta intensidad sus derechos jubilatorios, por tratarse de un grupo de trabajadores que al momento de la reforma tenían 25 años o más de laborar y cotizar para el régimen con las reglas imperantes. Solicitan que se acoja la presente acción y se anule parcialmente la norma impugnada, en cuanto excluye a los servidores y servidoras judiciales que, al momento de entrada en vigencia de la reforma, les faltaban 60 meses o menos para jubilarse y que se les permita acceder a su derecho, bajo las condiciones que establecía la Ley nro. 7333 antes de la reforma. Para efectos de sustentar su legitimación, los accionantes señalan que interponen esta acción con base en el artículo 75, párrafo primero, de la Ley de la Jurisdicción Constitucional. Citan, como asuntos base, los recursos de amparo que se tramitan en los siguientes expedientes: 22-013966-0007-CO (María Ester Brenes Villalobos), 22-013963-0007-CO (Carmen Violeta Cerdas Cisneros), 22-013961-0007-CO (Álvaro Jesús Valverde Rojas), 22-013981-0007-CO (Blanca Luz Jiménez Chaves), 22-013982-0007-CO (Hermes de los Ángeles Zamora Atencio), 22-013980-0007-CO (Mario Alberto Sáenz Rojas), 22-013973-0007-CO (Luis Rodolfo Chaves Cordero), 22-013978-0007-CO (Paula Esmeralda Guido Howell), 22-013969-0007-CO (Robert Camacho Villalobos), 22-013977-0007-CO (Cristia María Carballo Solano), 22-013971-0007-CO (Rolando Alberto Brenes Mora), 22-013970-0007-CO (María Auxiliadora Madrigal León), 22-013960-0007-CO (German Brenes Montero) y 22-013959-0007-CO (Juan Carlos Cubillo Miranda). Señalan que en tales asuntos se invocó la inconstitucionalidad de la norma cuestionada como medio razonable de amparar el derecho o interés que consideran lesionado.

20.- Mediante escrito presentado el 22 de febrero del 2023 el Secretario General del Sindicato de la Judicatura solicita la comparecencia oral que prescribe como obligatoria para las acciones de inconstitucionalidad del artículo 10 de la Ley de la Jurisdicción Constitucional.

21.- Mediante resolución de las 10:39 horas del 26 de mayo del 2023, el Magistrado Instructor solicita la siguiente prueba para mejor resolver: Al Director del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica una ampliación del “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” (Productos IICE 1 al 6) realizado en el año 2016, en el que se emita criterio técnico actuarial sobre lo siguiente: 1) En el mejor escenario para incluir a la mayor cantidad de funcionarios judiciales y en un escenario donde además no se afectara la sostenibilidad financiera o la solvencia actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial, cuál pudo ser el plazo máximo establecido en el Transitorio VI de la LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, NO. 9544. Lo anterior, en una proyección a como estaba dicho Fondo en el momento de emitirse la ley y en una proyección a como está el Fondo en la actualidad. 2) Una proyección sobre la sostenibilidad financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial si el Transitorio VI hubiera establecido el mismo escenario que se estableció en el Transitorio II (para los funcionarios del Tribunal Supremo de Elecciones), para todos los funcionarios del Poder Judicial. Es decir, una proyección sobre la sostenibilidad financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial si el Transitorio establecido para los funcionarios judiciales hubiera indicado que todos los funcionarios del Poder Judicial que hubieren cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial (pertenencia al Fondo), de previo a la aprobación de la Ley n°9544 podrían acogerse al régimen de pensiones bajo las condiciones que operaban antes de la aprobación de la Ley n°9544. 3) Determinar la cantidad de funcionarios del Poder Judicial incluidos en el Transitorio VI. Determinar la cantidad de personas que quedaron excluidas de dicho Transitorio y el plazo que les restaba para disfrutar del derecho de pensión. Es decir, la cantidad de todos los funcionarios judiciales que al momento de aprobarse la Ley n°9544 habían ya empezado a cotizar para el régimen de Pensiones del Poder Judicial y los años que les restaban para empezar a disfrutar del derecho de pensión. 4) En concreto, para el año 2018 al momento de aprobarse la Ley n°9544, identificar cuántas personas que no fueron incluidas en el Transitorio VI de dicha ley, pudieron haberse incluido, sin que el Fondo de Jubilaciones y Pensiones del Poder Judicial se viera desfinanciado o afectado en su sostenibilidad financiera o solvencia actuarial. 5) Considerando la sostenibilidad del Fondo con proyección de cien años y aplicando los mismos criterios que se utilizan con las personas que no fueron afectadas por la entrada en vigencia de la ley n° 9544, indicar: si las personas que tengan menos de veintiocho años, cinco meses y veintinueve días de mantenerse laborando en el Poder Judicial, al momento de la entrada en vigencia del transitorio cuestionado, puedan optar por la jubilación en las mismas condiciones que aquellas que tienen veintiocho años, seis meses y más de laborar para la institución. 6) Un estimado, para el año 2018 al momento de aprobarse la Ley n°9544 y para la actualidad, sobre la sostenibilidad financiera o la solvencia actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial, de incluirse un Transitorio para: a. Los funcionarios judiciales con 25 años o más de cotizar, para los funcionarios judiciales con 20 años o más de cotizar y para los funcionarios con 15 años o más de cotizar; b. Los funcionarios judiciales con una cotización al régimen de pensiones de un 80% o más, para los funcionarios judiciales con una cotización de un 70% o más, para los funcionarios judiciales con una cotización de un 60% o más y para los funcionarios judiciales con una cotización de un 50% o más.

22.- Mediante resolución de las 10:45 horas del 26 de mayo del 2023, el Magistrado Instructor solicita la siguiente prueba para mejor resolver: A) Visto el informe del Presidente de la Asamblea Legislativa donde indica: “precisamente la Sala Constitucional en las resoluciones citadas hizo una amplia exposición el tema de los derechos a la jubilación y pensiones, y señaló las competencias y los límites que tiene el legislador en cuanto a modificaciones legales indicando que las reformas solo pueden operar si son razonables, bajo criterios técnicos, y si las reformas buscan precisamente la realización de los regímenes y respetando el bloque de constitucionalidad. La Asamblea en la tramitación y formulación de esta ley siempre respecto los principios de razonabilidad, racionalidad, proporcionalidad y tomó sus decisiones sobre una base de una amplia discusión, con informes técnicos y participación de los sectores involucrados.” Se le solicita: Indicar y aportar a esta Sala, en concreto, el criterio técnico en que se basó la Asamblea Legislativa para establecer el plazo de 18 meses que se indica en el Transitorio VI de la LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, NO. 9544. Donde se demuestre la razonabilidad de ese plazo. B) Visto que los accionantes mencionan la manifestación del Presidente de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, en la Corte Plena, sesión n° 08-2021, del 22 de febrero de 2021, artículo XVIII, quien manifestó que el Fondo se encontraba en condiciones de asumir las jubilaciones con las condiciones anteriores a la reforma, de personas que al momento de la entrada en vigencia del Transitorio VI, contaban con 20 años o más de servicio en el Poder Judicial, se le solicita al Presidente de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial: 1) Referirse a los alegatos de esta acción, manifestando lo que considere al respecto. 2) Indicar si es correcto que en la actualidad, el Fondo está en capacidad, sin poner en peligro su solvencia financiera, de asumir las jubilaciones con las condiciones anteriores a la reforma, de personas que al momento de la entrada en vigencia del Transitorio VI, contaban con 20 años o más de servicio en el Poder Judicial. C) Vista la manifestación de la Presidencia del Poder Judicial, donde se indica que: “… el personal de la institución ha sufrido la aplicación de una disposición transitoria muy severa y nunca antes aplicada a ningún grupo en materia jubilatoria, lo que ha causado un desestimulo para continuar laborando en la institución, con ello se ha dado una constante fuga de talento ya que se han recibido varias renuncias de personas servidoras judiciales que prefirieron continuar su carrera en otros ámbitos, dados los constantes cambios en las condiciones tanto de jubilación, como salariales, debido a las reformas que se han aplicado en los últimos años.” Y además donde indica: “sufrieron un cambio drástico debido a la reforma del Transitorio impugnado, lo que les ha afectado de manera importante e incluso han requerido intervención médica dado el impacto de esta reforma en su vida y en la vida de sus familiares.” Se le solicita: 1) Presentar datos actualizados a la fecha sobre la cantidad de renuncias que se han presentado, luego de la aprobación de la ley cuestionada en esta acción, n°9544, y si se ha logrado determinar que dichas renuncias son sustancialmente mayores a curvas de años anteriores, y las razones en las que se han sustentado tales renuncias. 2) Indicar el impacto que tales renuncias ha acarreado para la Institución, en cuanto al costo de volver a tener que realizar contrataciones y capacitaciones de personal nuevo. 3) Presentar datos actualizados a la fecha sobre la cantidad de funcionarios judiciales que han tenido que consultar al médico de empresa en las distintas especialidades, por afectaciones a la salud debido al estrés y ansiedad ocasionados por los cambios en las normas relacionadas con el régimen de pensiones.

23.- Sobre la prueba anterior solicitada, informa JUAN ANDRES ROBALINO HERRERA, en su calidad de Director del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, en resumen que: No es materialmente factible emitir un criterio con sustento técnico y en forma rigurosa que responda los seis puntos mencionados debido a que no dispone de los recursos humanos y financieros para realizar dicha tarea, la cual requeriría de esfuerzo y recursos financieros de magnitud similar al del estudio original.

24.- Sobre la prueba anterior solicitada, informa JUAN CARLOS SEGURA SOLIS, en su calidad de Presidente de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, en resumen: 1) Los alegatos que motivan la acción de inconstitucionalidad que nos ocupa, se encuentran debidamente fundamentados y ajustados a derecho. Cabe señalar que se vulneró el numeral 167 de la Constitución Política, en cuanto al procedimiento para la aprobación del proyecto de ley, que dio origen a la Ley N° 9544. De tal manera que llevan razón los gestionantes al señalar la existencia de vicios de nulidad del proyecto de ley que dio origen a la ley N° 9544 y por ende, de igual manera sería inconstitucional el transitorio VI, ello con base en el artículo 167 de la Constitución Política, en relación con los convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo, en concordancia con el artículo 26 de la Convención Americana de Derecho Humanos. Lo establecido por la Organización Internacional del Trabajo en el convenio sobre la seguridad social (norma mínima), 1952 (núm. 102), artículo 29 inciso a), el cual establece el derecho de pertenencia de los accionantes a pertenecer al régimen jubilatorio se consagró desde el momento en que se ingresó a una relación estatutaria con el Poder judicial, en la cual se establecen principios propios que desde su inicio deben ser respetados de conformidad con el convenio supra indicado. De tal suerte que, el transitorio VI vulnera los derechos adquiridos y las situaciones consolidadas de los demandantes, sin que existiera un fundamento legal para tal efecto. Los 18 meses del transitorio VI es un plazo creado por el legislador de manera antojadiza, sin mediar un criterio razonable que hubiese sido puesto en conocimiento de la Sala Constitucional o del público en general, donde se valoraran los argumentos técnicos o actuariales de peso suficiente para adoptar el plazo indicado. 2) El informe de labores del presidente anterior Carlos Montero para el periodo 2020 fue basado en un escenario de población abierta (evaluación actuarial donde se continúa recibiendo afiliados), cuando ahora la normativa indica que debe ser con población cerrada (evaluación actuarial donde no se recibe más afiliados). Cabe recordar que el régimen de jubilaciones y pensiones del Poder Judicial era históricamente evaluado bajo la metodología de población abierta hasta la reforma del año 2018. La metodología de población cerrada es mucho más estricta al momento de estimar sus resultados. El régimen del IVM administrado por la CCSS continúa a la fecha siendo evaluado únicamente por la metodología de población abierta, mientras que el régimen del Fondo de Jubilaciones y Pensiones del Poder Judicial no se lo permite por la normativa actual. la JUNAFO, en diversas oportunidades, ha defendido que los regímenes básicos del primer pilar del Sistema Nacional de Pensiones Costarricense, debería medírseles bajo una única metodología, resultando presumiblemente el escenario con población abierta, el que mejor se adapta a las características propias de todo régimen básico. Bajo la metodología de población ABIERTA, los resultados del 2020 arrojaban una situación de superávit actuarial del 0.20 billones de colones y un nivel de solvencia del 105.53%, lo que permitía algún margen de acción. En referencia a la solvencia financiera del Fondo al día de hoy, conforme en lo anteriormente indicado y basados en la normativa en vigor, que nos obliga a considerar el escenario a población cerrada, cualquier ampliación en el transitorio que promueve esta acción de inconstitucionalidad provocaría una variación del déficit actuarial del régimen de Jubilaciones y Pensiones del Poder Judicial. Para ello el actuario matemático realizó un informe técnico en el que analiza diferentes escenarios que se podrían presentar de acogerse la acción, por lo que a continuación se adjunta el informe de cita. Primer escenario: Conforme con el artículo 230 de la Ley 7333, le asiste el derecho a que se mantengan las condiciones de dicha normativa a los que ya contaban con 10 años de pertenecer al régimen vigente en aquel momento, antes de la reforma operada por la ley 9544. Este escenario incorporaría a 6,445 trabajadores bajo las condiciones previas a la reforma. En este escenario el déficit aumenta en 736,559.87 millones de colones lo que significa un incremento del 109%. Segundo escenario: Conforme al derecho de pertenencia, que en algún momento fue avalado por la Sala Constitucional, se establezca que en tutela de los derechos en vías de adquisición se repete la posibilidad de jubilarse conforme a las condiciones de la Ley 7333 a quienes contaban con 20 años de labores al momento de la entrada en vigencia de la ley 9544 (esto sustentado en al convenio 102 de la Organización Internacional del Trabajo). Este escenario incorporaría a 2514 trabajadores bajo las condiciones previas a la reforma. En este escenario el déficit aumenta en 306,350 millones de colones lo que significa un incremento del 45%. Tercer escenario: En tutela del principio de igualdad (artículo 33 Constitucional) se proporcione a los empleados judiciales el mismo trato que se dio con la ley número 9388 que es reforma normativa a los Regímenes Especiales de Pensiones con cargo al presupuesto para contener el gasto de pensiones, en donde, en ese sistema jubilatorio se respetó el derecho de los trabajadores que estuvieran a 5 años de poderse jubilar a hacerlo en las condiciones imperantes en la legislación anterior (Ver transitorio III de dicha ley). Este escenario incorporaría a 1028 trabajadores bajo las condiciones previas a la reforma. En este escenario el déficit aumenta en 171,657.50 millones de colones lo que significa un incremento del 25%. Se sugiere analizar más allá de la solvencia actuarial del régimen, hacerlo no únicamente desde el punto de vista de la afectación que implicaría asumir las jubilaciones con las condiciones anteriores a la reforma, sino que se estima necesario tomar en consideración otros elementos tales como lo dicho por la Organización Internacional del Trabajo en el convenio sobre la seguridad social (norma mínima), 1952 (núm. 102), artículo 29 inciso 1, así como los derechos adquiridos por las personas servidoras judiciales, paz social, expectativas y planes de vida de las personas funcionarias judiciales, así como condiciones de trabajo al momento de contratación, así como el desgaste físico y mental que han experimentado las personas funcionarias, entre otros factores. De igual forma, conviene destacar que la modificación a las condiciones jubilatorias establecidas en el título IX de la LOPJ, ha incidido en la atracción, retención y motivación del recurso humano que actualmente labora en este Poder de la República, restando competitividad al Poder Judicial como patrono frente a otras alternativas u opciones laborales en el mercado, cuyos efectos, al sumarse a los provocados por la Ley de Fortalecimiento de las Finanzas Públicas y a la Ley de Empleo Público, podrían dificultar en mayor medida, el reclutamiento de aquellas personas que deseen ingresar al Poder Judicial y con ello se afectaría el servicio público y la administración de justicia.

25.- Sobre la prueba anterior solicitada, informa RODRIGO ARIAS SANCHEZ, en su calidad de Presidente de la Asamblea Legislativa, en resumen: La Ley Número de Ley 9544 fue producto de un amplio debate, que se extendió de forma continua por casi dos años entre el año 2016 y el 2017. Desde la tramitación del texto inicial del expediente 19.922, Ley de reforma integral a los diversos regímenes de pensiones y normativa conexo; que inició su estudio el 5 de abril de 2016 y fue publicado en el Alcance 110 de La Gaceta No. 126 del 30 de junio de 2016, al proyecto de ley se le realizaron en varias ocasiones las consultas obligatorias y facultativa correspondientes. Inicialmente el proyecto es conocido por la Comisión de Asuntos Sociales, posteriormente se asigna a la Comisión Especial identificada con el número 20035 y se tramitan varias mociones con textos sustitutivos de fechas 13 setiembre de 2016, 29 de marzo y 27 de julio de 2017, además, contó con varios dictámenes: Dictamen Afirmativo Mayoría por parte de la Comisión Especial 20.035 de 31 de julio 2017 y Dictamen Afirmativo de Minoría de 20 de setiembre de 2017; posteriormente, pasa al Plenario y se envía mociones vía articulo 137 a la Comisión dictaminadora y se recibe el Primer Informe de mociones 137 por parte de la Comisión Especial, Expediente 20.035 el 26 de setiembre de 2017. Como se indicó y consta en expediente de la Ley de un total de 18 tomos, el proyecto fue ampliamente consultado a diversas instituciones públicas y organizaciones involucradas directo o indirectamente con la materia relativa al Proyecto de Ley. Cabe señalar como antecedente que en el texto base del Proyecto de ley N° 19.922 “Reforma integral a los diversos regímenes de pensiones y normativa conexa” que dio pie a la Ley 9544, únicamente hacía referencia a un transitorio, se trataba del Transitorio XIII de la Ley Orgánica del Poder Judicial, N° 7333, de 5 de mayo de1993, sobre el cual se proponía una reformar de la siguiente manera: “Transitorio XIII.- Las reformas a esta ley no serán aplicables a aquellos servidores y servidoras judiciales que al momento de la entrada en vigencia de estas reformas tengan veinte años o más de laborar en el Poder Judicial, los cuales tendrán derecho a jubilarse, conforme a las disposiciones previamente establecidas a esta reforma, siempre que cumplan con todos los requisitos establecidos en el régimen jurídico anterior. En lo que respecta a las demás personas que a la entrada en vigencia de la presente ley ocupen cargos en propiedad en el Poder Judicial, se les otorgará el beneficio de cálculo diferenciado al momento en que alcancen los requisitos para acogerse a la jubilación, en atención al tiempo servido y los aportes realizados al Fondo de Jubilaciones antes de esta reforma, aplicando los siguientes parámetros: 1.-A quienes tengan entre 0 y 10 años de servicio, la jubilación se les calculará con base en el promedio de los últimos noventa y seis salari os (8 años). 2.-A quienes tengan más de 10 y hasta 15 años de servicio, la jubilación se les calculará con base en el promedio de los últimos setenta y dos salarios (6 años). 3.- A quienes tengan más de 15 y hasta menos de 20 años de servicio, la jubilación se les calculará con base en el promedio de los últimos cuarenta y ocho salarios (4 años).” La Comisión especial encargada de conocer y dictaminar el proyecto de ley “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo N° 19.922” (Esta Comisión se identifica con el Expediente N°20035), luego de haber recibido las respuestas de las instituciones consultadas y haber aprobado dos textos sustitutivos, el veintisiete de julio de 2017 esta Comisión aprobó un Dictamen afirmativo de mayoría, en este Dictamen se deja de lado la reforma que inicialmente se planteaba al transitorio XIII; y se proponen seis transitorios, entre ellos el Transitorio VI, cuya redacción era la siguiente: “TRANSITORIO VI. - Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del Título IX de la Ley N°7333 del 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto. Una vez pasados los dieciocho meses, los servidores judiciales podrán acogerse a una jubilación ordinaria transitoria, la cual se regirá por la siguiente tabla: (…) Una vez pasados los dieciocho meses, los servidores judiciales podrán acogerse a una jubilación anticipada transitoria, la cual se regirá por las siguientes disposiciones: 1. Para efectos de la jubilación anticipada sin tener los años de servicio, se tomará la edad requerida de la tabla anterior, según la edad o años de servicio a la fecha de rige de la ley. El cálculo de esta jubilación se hará multiplicando la pensión obtenida según la edad o años de servicio correspondiente a la fecha de rige de la ley de la tabla anterior, por el número de años servidos, y el producto se dividirá entre los años de servicio requeridos según la edad o años de servicio correspondiente a la fecha de rige de la ley; el resultado será el monto de la jubilación anticipada. 2. Para efectos de la jubilación anticipada sin tener la edad, se tomará los años de servicio requeridos de la tabla anterior, según la edad o años de servicio a la fecha de rige de la ley. Para efectos de la edad mínima, se regirá por la siguiente tabla: (…) El cálculo de esta jubilación se hará multiplicando la pensión obtenida según la edad o años de servicio correspondiente a la fecha de rige de la ley de la tabla tras anterior, por la edad; y el producto se dividirá entre la edad requerida según la edad o años de servicio correspondiente a la fecha de rige de la ley; el resultado será el monto de la jubilación anticipada. Estas pensiones estarán sujetas al tope previsto en el artículo 225 de la ley.” Como puede apreciarse en el Dictamen ya se incluía en el Transitorio el plazo de los 18 meses. En realidad, el plazo de los 18 meses ya estaba en los textos sustitutivos antes aprobados por la Comisión que fueron al igual que el texto base consultados por la Comisión a distintas instituciones, entre ellas el Poder Judicial, que en oficio de fecha 26 de Abril de 2017, la Presidenta de la Corte Suprema de Justicia, Zarella Villanueva Monge, mediante Oficio SP – 118 – 17 remitió el Acuerdo adoptado por la Corte Plena a este nuevo texto, en sesión Nº 09 – 17 del 24 de abril de 2017 mediante el cual rinde criterio negativo. En dicho acuerdo se le responde a la Comisión que se oponen al texto remitido por cuanto: “Las principales objeciones al texto sustitutivo son las siguientes: “… 12.- Respecto al Transitorio que regula la jubilación anticipada, consideran que el plazo de los dieciocho meses posteriores a la publicación de la Ley no tiene bases técnicas.” El 21 de junio de 2017, mediante Oficio OJ – 075 – 2017, la Procuraduría General de la República emitió Opinión Jurídica respecto al segundo texto sustitutivo a este Proyecto y al respecto del Transitorio VI y del plazo de los 18 meses señaló: “En tratándose del Transitorio VI que regula la opción de anticipar la jubilación para aquellos funcionarios que cumplan con los requisitos y que lo presenten dentro del lapso de los dieciocho meses posteriores a la vigencia de la Ley; consideran que el mismo no violenta el principio de irretroactividad ni es intempestivo.” Posteriormente, vía la aprobación de mociones de fondo, el nuevo texto aprobado en Primer Debate, y luego aprobado en Segundo Debate de la disposición Transitoria VI señala: “TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.° 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.” En el caso concreto del Transitorio VI de la Ley 9544, el legislador dispone un plazo de 18 meses, plazo que como lo señaló la Procuraduría General de la Republica no violenta derechos adquiridos ni es tempestivo; sino que responde precisamente a facilitar y permitir el tránsito entre la ley anterior y la nueva ley, sobre todo y luego del amplio análisis que el legislador realiza conforme la discusión del proyecto de ley que consta en las actas, documentos recibidos por parte de las instituciones y organizaciones consultadas, y de audiencias realizadas, y considerando el impacto y la necesidad de aplicación de la nueva regulación; se considera que el plazo de 18 meses es razonable ya que no se trata de una plazo excesivamente corto, ni excesivamente largo. La fijación de este plazo responde a la atribución que la Asamblea Legislativa en el ejercicio de la función de dictar leyes en sentido formal y material, donde goza de una amplia libertad de conformación para desarrollar el programa constitucional fijado por el Poder Constituyente. El margen de maniobra en cuanto a la materia normada se ha denominado, también, discrecionalidad legislativa, entendida como la posibilidad que tiene ese órgano, ante una necesidad determinada del cuerpo social, de escoger la solución normativa o regla de Derecho que estime más justa, adecuada e idónea para satisfacerla, dentro del abanico o pluralidad de opciones políticas que ofrece libremente el cuerpo electoral a través del sistema de representación legislativa. Claro está que dicha facultad no es irrestricta, sino que debe observar los preceptos, valores y principios constitucionales. Se considera que en el caso consultado la Asamblea tomo en consideración que no se trataba de un plazo arbitrario, ni antojadizo, ni intempestivo, sino que se trata de un plazo razonable que permite a la administración y a los destinatarios realizar los ajustes necesarios para iniciar la aplicación y cumplimiento eficaz y eficiente de la ley; por lo que en todo momento la Asamblea Legislativa se preocupó por respetar los preceptos, valores y principios constitucionales.

26.- Sobre la prueba anterior solicitada, informa ORLANDO AGUIRRE GOMEZ, en su calidad de Presidente de la Corte Suprema de Justicia y del Poder Judicial, en resumen: Causalidad en la salud laboral, influencia de la salud en el desempeño laboral y necesidad de impulsar entornos de trabajo seguros y saludables: Tomando como base el Modelo Causal en la Salud Laboral, que identifica un conjunto de niveles y factores que inciden en las condiciones de salud de las personas trabajadoras, les permite explicar con mayor claridad porqué las decisiones de reforma a la Ley 9544 y la entrada en vigencia de leyes regulatorias que han impactado las relaciones de trabajo han tenido incidencia en la salud del personal judicial, conforme se describe en el siguiente cuadro resumen. Bajo este modelo de análisis es evidente que las decisiones que se tomen en los niveles Macro y Meso tendrán una incidencia en el nivel micro, pues los tres niveles de injerencia causal coexisten y se relacionan en un mismo sistema, por lo que siempre condicionarán la salud laboral de las personas trabajadoras. El estado de salud de las personas trabajadoras tiene una influencia directa en su rendimiento laboral y por lo tanto, también en los resultados globales de la organización a nivel de servicio, eficiencia y productividad. Al darse una extensión de la permanencia de las personas trabajadoras en su trabajo y verse variadas las expectativas al aumentar la edad a rangos superiores a 55 años. Esto tuvo implicaciones tanto de salud, por el desgaste físico y emocional de esta población, como por el desajuste psicológico que produce el cambio de las condiciones laborales, que aumentan considerablemente el tiempo de años de servicio. Durante el proceso de formulación de la citada política institucional quedó de manifiesto que los cambios a las condiciones laborales y de empleo del personal judicial, producto de las recientes leyes aprobadas (Ley 9635 Fortalecimiento de las Finanzas Públicas, Ley N.º 10159 marco de Empleo Público, Ley 9544 Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, la Reforma al Régimen de Pensiones;) han provocado inseguridad y desmotivación por el deterioro de las condiciones laborales y fuga de talento humano. Cantidad de renuncias y razones por las cuales se presentaron: La cantidad de renuncias que se han dado desde el 2018 hasta la fecha suman 750, en la tabla siguiente se visualiza la cantidad por año y según el sexo a partir de la base de datos de la Dirección de Gestión Humana al 8 de mayo de 2023. Si bien es cierto lo datos aportados son de carácter preliminar, ya se evidencia en las respuestas obtenidas la vinculación existente entre las renuncias de las personas consultadas y la reforma en análisis. Queda pendiente ampliar los datos conforme se culmine el proceso de consulta en proceso. Siendo que la cantidad total de personas que se vieron afectas por la Ley de Reforma del régimen de jubilaciones y pensiones del Poder Judicial es de 1292, lo cual representa un 9,68% del personal judicial. Estimación de costos por nuevas contrataciones y capacitaciones de personal nuevo: Es indiscutible el impacto de las renuncias que se han dado en el Poder Judicial en términos de los costos asociados con la contratación y capacitación de nuevo personal. Otro estudio de la consultora Gallup encontró que los costos estimados de rotación de personal pueden variar del 100% al 300% del salario anual de la persona trabajadora generando costos significativos para las organizaciones. Dato que puede evidenciar también el costo para el Poder Judicial de la salida de este tipo de profesionales y que se describe en cada una de las tablas presentadas anteriormente. En un informe de la empresa consultora Deloitte3 que proporciona información relacionada al tema en análisis, indican que cuando una persona empleada se va de la empresa, ésta pierde de dos a tres veces el salario anual de la persona en términos de capital intelectual, relaciones con los clientes, productividad y experiencia, además de los costos que supone una nueva incorporación. A la luz de lo anterior es entendible como a nivel empresarial la fuga de talento es considerada como una de las problemáticas más relevantes en la gestión humana, ya que representa una pérdida valiosa en términos de capacidades y con un costo monetario significativo. El tema se comprende mejor cuando se detallan todos los costos asociados que acarrea, como por ejemplo los procesos de reclutamiento y selección, ya que cuando una persona funcionaria judicial renuncia, la institución debe invertir recursos para buscar y reclutar nuevas personas candidatas. A microescala, por cada persona que renuncia el costo operativo que le genera a la jefatura, implica buscar a las personas candidatas, y pedir referencias y en una escala macro, a la institución se le representan gastos en publicidad de vacantes, aplicación de pruebas para comprobar la idoneidad para el puesto, cumplir las actividades del proceso de reclutamiento lo que suma costos con rapidez, especialmente porque la institución necesita cubrir múltiples puestos de trabajo. Se debe considerar que costos incrementan a la luz de la corrupción y criminalidad actual, ya que hace que los procesos de reclutamiento y selección del personal que aspira a ingresar al Poder Judicial sean más onerosos al incorporar etapas de investigación de antecedentes y comprobación de idoneidad ética y moral, así como de cumplimiento de perfil competencial, etapas en las que existe una participación de profesionales expertos de las ramas de trabajo social y psicología. Además, hay que agregarle el proceso de selección implicando tiempo y recursos para revisar currículums, realizar entrevistas, evaluar a las personas candidatas y tomar decisiones de contratación. Las personas funcionarias judiciales internas también pueden estar involucradas en el proceso de selección de personal, al participar también en los concursos internos, lo que significa que deben dedicar tiempo a estas tareas en lugar de realizar sus responsabilidades habituales. Una vez contratado el nuevo personal, la institución debe invertir en su capacitación y orientación. Esto implica proporcionar información sobre las políticas y procedimientos de la organización, así como capacitar a la persona en las habilidades necesarias para desempeñar su trabajo de manera efectiva. Estos costos incluyen materiales de capacitación, tiempo de las jefaturas a cargo y el personal asignado para la orientación y costos asociados al proceso de inducción y capacitación, como coordinaciones con la Dirección de Tecnología de la Información y Comunicaciones, la Dirección de Gestión Humana y Departamento de Seguridad. Durante el proceso de contratación y capacitación, es probable que la productividad se vea afectada. Las personas trabajadoras más antiguas tienen que asumir tareas adicionales para cubrir las responsabilidades del puesto vacante, aumentando su carga de trabajo y potencialmente afectando su desempeño. Además, los nuevos empleados pueden requerir tiempo para adaptarse y alcanzar su pleno rendimiento, por la curva de aprendizaje que se debe lograr lo que también puede afectar la productividad en general. Es entendible que las organizaciones, instituciones y empresas públicas y privadas implementen estrategias efectivas de retención de su personal para minimizar costos, mantener la estabilidad y la continuidad en el trabajo, aprovechar el conocimiento y la experiencia acumulada, mejorar la productividad y el desempeño, y promover una cultura organizacional sólida incidiendo también, en un entorno laboral estable y atractivo, lo que a su vez beneficia tanto al personal trabajador como a la organización en general. Implicaciones de la reforma la salud laboral de la Dirección de Gestión Humana: Es ineludible que el cambio en las condiciones para jubilarse ha tenido un impacto negativo en la salud física y emocional de una persona trabajadora que ya estaba planificando su retiro y estaba preparada para hacerlo. El estrés adicional y la exigencia física y mental del trabajo prolongado puede aumentar el riesgo de enfermedades crónicas y problemas de salud mental. Además, el aumento de la edad de jubilación puede significar que una persona tenga menos tiempo para disfrutar de su jubilación y dedicarse a actividades de ocio y cuidado personal, lo que también puede tener un impacto negativo en su salud y bienestar. A continuación, se detallan en una serie de aspectos que comprueban y reafirman la afectación física y emocional que han generado en el personal la aplicación de la Ley de reforma del régimen de jubilaciones y pensiones del Poder Judicial, además de la aplicación en menos de cinco años de la Ley de Fortalecimiento de las finanzas públicas y la Ley del Empleo Público procesos que han impactado y debilitado significativamente a la administración de justicia, al ambiente laboral y específicamente a todas las personas trabajadoras. Cómo se observa en el cuadro resumen durante los años cercanos a la reforma se observa un repunte de los diagnósticos por ansiedad, igualmente debe llamar la atención el incremento de los diagnósticos relacionados a cuadros de depresión que emergen posterior a implementada la reforma en análisis. Con respecto a las estadísticas de la Unidad de Atención Psicosocial de los Servicios de Salud, que brinda atención individual a la población judicial en las especialidades de psicología y trabajo social, se presenta en la tabla N°15 el detalle de las consultas recibidas por año desde el 2015 hasta la actualidad. Se observa en los datos presentados un aumento importante específicamente en el motivo de “Proyecto de vida” a partir de la reforma en análisis, como un reflejo de la necesidad de las personas de reorganizar sus planes futuros, lo cual es atribuible al impacto en las expectativas de jubilación. Además, se destaca que desde el año 2021, se visibilizan motivos de consulta relacionados a las reformas normativas implementadas. En términos generales, según lo reportan las personas profesionales de los Servicios de Salud, dentro de la atención brindada a las personas servidoras judiciales y lo que estas han indicado en algún momento durante la atención médica o psicológica se ha visto que las personas consultantes refieren que tenían su expectativa de una jubilación al cumplir los 30 años de servicio o los 55 años, lo que implicó para ellas haber desarrollado un proyecto de vida con base en esas opciones. Una vez modificada la jubilación, esas expectativas cambiaron radicalmente, lo que conlleva a una reestructuración de ese proyecto de vida y el impacto emocional que eso genera. En relación con ese tema, las personas trabajadoras han manifestado sentimientos de frustración, desmotivación, malestar, tristeza, apatía, desesperanza, angustia, entre otros. Además, se atienden cuadros de ansiedad, depresión, estrés laboral, síndrome de la persona trabajadora quemada, entre otros. Se retoma que el cambio de las condiciones para poder jubilarse y el alargamiento del proceso de retiro laboral provocan importantes afectaciones a nivel de la salud emocional. El hecho de tener que trabajar durante un período prolongado puede generar estrés adicional y ansiedad en la persona y afectar negativamente la calidad de vida de la persona, tiene menos tiempo disponible para disfrutar de actividades recreativas, descansar adecuadamente y pasar tiempo con la familia y amigos lo que influye en la satisfacción general con la vida y el bienestar emocional.

27.- Mediante resolución de las 10:18 horas del 31 de julio del 2023 el magistrado instructor solicitó como prueba para mejor resolver. Al Director del Departamento de Matemática y Ciencias Actuariales de la Universidad de Costa Rica se emita criterio técnico actuarial sobre lo siguiente: Tomando como antecedente el “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” (Productos IICE 1 al 6) realizado en el año 2016, por el Investigaciones en Ciencias Económicas de la Universidad de Costa Rica; y tomando en cuenta lo que establece el Transitorio VI de la Ley n°9544, “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley n° 7333, Ley Orgánica del Poder Judicial, de 05 de mayo de 1993 y sus reformas” (“Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.”), emitir criterio sobre lo siguiente: 1.) En el mejor escenario razonable para incluir a la mayor cantidad de funcionarios judiciales y en un escenario donde además no se afectara la sostenibilidad financiera o la solvencia actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial, cuál pudo ser el plazo máximo establecido en el Transitorio VI de la LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, NO. 9544 para salvaguardar los derechos de los servidores judiciales que pudieran pensionarse con los requisitos establecidos en el título IX de la Ley N.º 7333, de 5 de mayo de 1993. Lo anterior, en una proyección a como estaba dicho Fondo en el momento de emitirse la ley y en una proyección a como está el Fondo en la actualidad. Lo anterior, basados en un escenario de población abierta y en un escenario de población cerrada. 2.) En concreto, para el año 2018 al momento de aprobarse la Ley n°9544, identificar cuántas personas pudieron haberse incluido en el Transitorio VI indicado, sin que el Fondo de Jubilaciones y Pensiones del Poder Judicial se viera desfinanciado o afectado en su sostenibilidad financiera o solvencia actuarial.

28.- Mediante resolución de las 10:23 horas del 31 de julio del 2023 el magistrado instructor solicitó como prueba para mejor resolver. Al Director de la Escuela de Matemática de la Universidad Nacional se emita criterio técnico actuarial sobre lo siguiente: Tomando como antecedente el “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” (Productos IICE 1 al 6) realizado en el año 2016, por el Investigaciones en Ciencias Económicas de la Universidad de Costa Rica; y tomando en cuenta lo que establece el Transitorio VI de la Ley n°9544, “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley n° 7333, Ley Orgánica del Poder Judicial, de 05 de mayo de 1993 y sus reformas” (“Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.”), emitir criterio sobre lo siguiente: 1.) En el mejor escenario razonable para incluir a la mayor cantidad de funcionarios judiciales y en un escenario donde además no se afectara la sostenibilidad financiera o la solvencia actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial, cuál pudo ser el plazo máximo establecido en el Transitorio VI de la LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, NO. 9544 para salvaguardar los derechos de los servidores judiciales que pudieran pensionarse con los requisitos establecidos en el título IX de la Ley N.º 7333, de 5 de mayo de 1993. Lo anterior, en una proyección a como estaba dicho Fondo en el momento de emitirse la ley y en una proyección a como está el Fondo en la actualidad. Lo anterior, basados en un escenario de población abierta y en un escenario de población cerrada. 2.) En concreto, para el año 2018 al momento de aprobarse la Ley n°9544, identificar cuántas personas pudieron haberse incluido en el Transitorio VI indicado, sin que el Fondo de Jubilaciones y Pensiones del Poder Judicial se viera desfinanciado o afectado en su sostenibilidad financiera o solvencia actuarial.

29.- Sobre la prueba anterior, informa JESENNIA CHAVARRÍA VÁSQUEZ, en su calidad de Directora de la Escuela de Matemática, que dicha escuela no cuenta en este momento con especialistas o proyectos de investigación que estén o hayan efectuado estudios actuariales del Fondo de Jubilaciones y Pensiones del Poder Judicial. Por ello se ven imposibilitados para emitir un criterio o pronunciamiento que responda a la solicitud.

30.- Mediante resolución de la Presidencia, de las 13:32 horas del 16 de agosto del 2023, y de conformidad con lo establecido en los artículos 10 y 85 de la Ley de la Jurisdicción Constitucional, para la celebración de la audiencia oral, se señalan las NUEVE HORAS del CINCO DE OCTUBRE DEL DOS MIL VEINTITRES en la Sala de Vistas ubicada en Auditorio del Organismo de Investigación Judicial. Debido a la naturaleza de este acto procesal se informa a las partes ciertas reglas sobre la asistencia (ver corrección de error material mediante resolución de las 11:40 horas del 25 de agosto del 2023 y resolución de cambio de lugar de las 11:09 horas del 01 de setiembre del 2023). A esta vista se convocaron al representante de la parte accionante; al representante de la Procuraduría General de la República, al representante de la Asamblea Legislativa, al representante de la Corte Suprema de Justicia y al representante de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial. Además, sobre la prueba solicitada: al representante del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, al representante del Departamento de Matemática y Ciencias Actuariales de la Universidad de Costa Rica, al representante de la Escuela de Matemática de la Universidad Nacional. Finalmente a los coadyuvantes activos: Un representante de los coadyuvantes individuales, el representante de la Asociación Nacional de Profesionales del Poder Judicial (ANPROJUD) y el representante del Sindicato de la Judicatura (SINDIJUD).

31.- Sobre la prueba anterior, informa JAVIER TREJOS ZELAYA, en su calidad de Director de la Escuela de Matemática de la Universidad de Costa Rica, que se remite una copia del Acta de Comisión Ad Hoc EMat-50-2023 con el criterio correspondiente, donde se indica en resumen que, la comisión llega a las siguientes conclusiones: 1. Los resultados del estudio del IICE de la Universidad de Costa Rica presentan los posibles efectos actuariales de diversas propuestas, con información hasta diciembre de 2015. No obstante, la reforma en la Ley 9544 no fue evaluada en ninguno de estos análisis. El estudio actuarial que efectivamente considera el impacto de la reforma se realizó por PiPCA en julio de 2019. 2. El mencionado estudio demuestra que la reforma implementada tuvo un impacto positivo en el indicador de solvencia (ver Cuadro 9.6 del estudio). Sin embargo, el Fondo aún presenta un déficit actuarial incluso en esta condición mejorada. Por lo tanto, cualquier modificación en el período de transición podría incrementar el pasivo actuarial, lo que a su vez disminuiría el indicador de solvencia actuarial y, por ende, pondría en riesgo la situación actuarial del Fondo. 3. Por otro lado, el estudio revela (ver Cuadro 9.5) que el pasivo correspondiente a las pensiones en curso de pago supera con creces la reserva disponible. En consecuencia, incluso bajo la Ley 9544, el Fondo se ajustaría a la ejecución del artículo 12 del Reglamento Actuarial de la SUPEN. Cualquier aumento en esta provisión debido a una extensión del período de transición empeoraría esta situación. 4. Además, se observa una disminución en la cobertura de los derechos devengados (ver Cuadro 9.3), a pesar de la implementación de la reforma. En consecuencia, cualquier aumento en el pasivo tendría un impacto negativo en esta cobertura. 5. No obstante lo expuesto, no es posible estimar el incremento en el pasivo actuarial que resultaría de una modificación en el período de transición debido a la falta del modelo actuarial correspondiente, así como de las bases de datos y la implementación computacional necesaria. Aun en el caso de contar con estos recursos, llevar a cabo tal análisis requeriría una inversión significativa de tiempo (aproximadamente 6 meses) y recursos humanos (al menos un profesional en Ciencias Actuariales), recursos que la Escuela de Matemática de la UCR no dispone en este momento.

32.- Mediante resolución del magistrado Instructor, de las 11:50 horas del 25 de agosto del 2023, se le solicita al Presidente de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial a la prueba solicitada, se le solicita AMPLIAR lo aportado a la siguiente información: Indicar en concreto, cuál es el mayor plazo que podría establecerse en el Transitorio VI impugnado, a efectos de incluir a la mayor cantidad de personas que se puedan pensionar con el régimen anterior a la reforma, sin poner en peligro la solvencia financiera actual del Fondo de Pensiones del Poder Judicial. Puede utilizar para ello la metodología vigente al momento de la reforma, sea población abierta, y también comparar con la metodología actual de población cerrada. Lo anterior dentro del plazo de diez días siguientes a la notificación de ese pronunciamiento (ver resolución de las 16:05 horas del 06 de setiembre del 2023).

33.- Sobre la prueba anterior solicitada, informa JUAN CARLOS SEGURA SOLIS, en su calidad de Presidente de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, en resumen: 1) Para un mejor análisis, conviene aclarar algunos conceptos técnicos sobre el régimen del Fondo de Jubilaciones y Pensiones del Poder Judicial: Población abierta: Supone que la evaluación actuarial del régimen de pensión continúa recibiendo personas afiliadas, siendo necesario estimar el ingreso de afiliados futuros. Población cerrada: Supone que la evaluación actuarial del régimen de pensión no recibe más personas afiliadas siendo conocida la población involucrada a una fecha cierta. Beneficios devengados: Estimación de la cuantía de los beneficios de las personas pensionadas y las afiliadas actuales atribuibles al periodo presente y a los anteriores, cuya determinación se realiza mediante el método de la unidad de crédito proyectada, según el cual cada periodo de acumulación se considera generador de una unidad adicional de derecho a los beneficios, midiéndose cada unidad de forma separada para conformar la obligación final. Al respecto, conviene destacar que en caso de utilizar la metodología de población cerrada para la medición de la salud actuarial del régimen del FJPPJ, se presentarían condiciones más estrictas que las arrojadas mediante la utilización de la metodología de población abierta, misma que era históricamente utilizada de previo a la reforma para analizar este régimen y que aún sigue siendo la utilizada para analizar al régimen del IVM. 2) Indicar en concreto, cuál es el mayor plazo que podría establecerse en el transitorio VI impugnado, a efecto de incluir a la mayor cantidad de personas que se puedan pensionar con el régimen anterior a la reforma, sin poner en peligro la solvencia financiera actual del Fondo de Pensiones del Poder Judicial. Para la atención de la consulta efectuada por la estimable Sala Constitucional, fue requerida la ejecución de un escenario actuarial adicional, contratado al MBA. Raúl Hernández González, actuario matemático que efectuó el análisis obligatorio del régimen para el periodo concluido en el año 2022, estudio que se adjunta. En el siguiente cuadro se presenta un resumen de lo determinado en cada una de las corridas efectuadas. Los resultados mostrados incluyen el número de personas adicionales que pueden beneficiarse, como el incremento total del déficit. En los anexos se incluye el balance respectivo:

Actualmente la solvencia es inferior a uno, por lo tanto, cualquier mejora de los beneficios provocaría que la solvencia disminuya más. Con respecto al cuadro e información anterior, conviene aclarar que las cifras están expresadas en miles de millones de colones, en razón de lo cual debe leerse para el último escenario de 10 años plazo y 2,759 personas, trescientos veinticuatro mil once millones de colones, equivalente aproximadamente a seiscientos tres millones de dólares de incremento en el déficit en comparación con el escenario abierto con una tasa de crecimiento del 1% que se utilizó como base bajo dicha metodología de valoración actuarial. Debe quedar claro que, cualquier incremento de tiempo en el transitorio VI, provocaría un incremento en los egresos y / u obligaciones a los que este régimen se ve sometido, por lo cual todos los escenarios arrojan una desmejora en los indicadores correspondientes; la pretensión de esta acción objeto de análisis constitucional, provocaría un incremento en el déficit del Régimen del Fondo de Jubilaciones y Pensiones del Poder Judicial –FJPPJ, incrementos relativos entre el 13.31 % y el 87.65 % de dicho déficit. De igual forma al valorar el indicador de la razón de solvencia, este indicador desmejora relativamente entre un 1.57 % y un 9.40 %, ambos indicadores coinciden en su tendencia hacia el desmejoramiento de la salud financiera del régimen, en caso de acogerse cualquier ampliación. No obstante, a lo anterior se debe valorar por la estimable Sala Constitucional, si dichas desmejoras en estos indicadores son o no significativas en comparación con los derechos que persiguen los recurrentes. Así las cosas, la totalidad de los escenarios analizados por dicho profesional, arrojan incrementos significativos en el déficit del régimen, provocando un deterioro en sus condiciones de salud financiera y estabilidad actuarial en el largo plazo, por lo cual no se considera posible incrementar el plazo del transitorio VI sin que exista afectación al régimen. A criterio de quien suscribe, respetuosamente se sugiere analizar más allá de la solvencia actuarial del régimen, hacerlo no únicamente desde el punto de vista de la afectación que implicaría asumir las jubilaciones con las condiciones anteriores a la reforma, sino que se estima necesario tomar en consideración otros elementos tales como lo dicho por la Organización Internacional del Trabajo en el convenio sobre la seguridad social (norma mínima), 1952 (núm. 102), artículo 29 inciso 1, así como los derechos adquiridos por las personas servidoras judiciales, paz social, expectativas y planes de vida de las personas funcionarias judiciales, así como condiciones de trabajo al momento de contratación, el desgaste físico y mental que han experimentado las personas funcionarias, entre otros factores. Según el informe actuarial aportado, la normativa aplicable al régimen del FJPPJ, así como el principio pro-fondo que establece la Ley Orgánica del Poder Judicial en su artículo 226, se estima que cualquier ampliación al Transitorio VI supondría un peligro latente para la sostenibilidad del régimen del Fondo de Jubilaciones y Pensiones del Poder Judicial, desde su óptica financiera y actuarial, no obstante de igual forma se considera que en el análisis de esta acción de inconstitucionalidad, se deben valorar otros elementos no financieros para su resolución, como los principios de derecho adquirido, razonabilidad en el ajuste, planes de vida, entre otros.

34.- Según constancia del Secretario de la Sala Constitucional, a partir de las 09 horas del 05 de octubre del 2023 se realizó la vista convocada. El Tribunal estuvo constituido por los (as) magistrados (as) Fernando Castillo Víquez (presidente), Fernando Cruz Castro (magistrado instructor), Luis Fernando Salazar Alvarado, Jorge Araya García, José Roberto Garita Navarro, Ana María Picado Brenes y Alejandro Delgado Faith.

35.- En los procedimientos se ha cumplido las prescripciones de ley.

Redacta el Magistrado Castillo Víquez; y,

Considerando:

I.- De previo.- Sobre los Magistrados habilitados para el conocimiento de esta acción.- Durante la tramitación del expediente, surgieron diferentes causales de inhibitoria que fueron planteadas tanto por los magistrados y magistradas propietarios como por los magistrados y magistradas suplentes, por ser en su mayoría, funcionarios o jubilados del Poder Judicial. Todas esas gestiones fueron debidamente tramitadas y resueltas por la Presidencia de la Sala Constitucional, según lo indica la ley. Ahora bien, según se ha venido resolviendo, la situación de que en los procesos tramitados ante esta Sala, relacionados con el régimen de pensiones y jubilaciones del Poder Judicial, tanto los magistrados titulares como los magistrados suplentes, por diversos motivos, no podrían conocer de dichos asuntos, lo cual daría como resultado la imposibilidad de integrar una Sala con siete magistrados para su resolución. No obstante, esta Sala está obligada constitucionalmente a resolver los asuntos sometidos a su conocimiento, sin que circunstancias como las que ahora se presentan -falta de los Magistrados Titulares y suplentes necesarios para integrar Sala- enerve esa obligación o releve a este Tribunal de su cumplimiento. Por ello, según lo dispuesto en el artículo 14 de la Ley de la Jurisdicción Constitucional y el numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial -“Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos”-, corresponde a los magistrados propietarios el conocimiento de esos asuntos por imperativo de ley, sin que les alcance responsabilidad disciplinaria por esto. Lo anterior constituye, entonces, una causal de justificación normativa que libera de toda responsabilidad, incluida la penal, a los magistrados que conozcan de un asunto en el cual los magistrados suplentes, necesarios para integrar el Tribunal, tengan alguna causal de inhibitoria o impedimento para conocer del mismo asunto. Así se tienen por habilitados a los Magistrados propietarios Castillo Víquez, Cruz Castro, Salazar Alvarado y Araya García. En el caso de la magistrada Garro Vargas se admitió su inhibitoria, por otras razones, nombrándose por sorteo al magistrado Alejandro Delgado Faith. En el caso del magistrado Rueda Leal se admitió su inhibitoria, por las razones expuestas, nombrándose por sorteo a la magistrada Aracelly Pacheco Salazar. En el caso de la recién nombrada magistrada Hess Herrera se admitió su inhibitoria, por las razones expuestas, nombrándose por sorteo a la magistrada Ana María Picado Brenes.

II.- Objeto de la impugnación.- Los accionantes impugnan el Transitorio VI de la Ley n°9544, que es “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley n° 7333, Ley Orgánica del Poder Judicial, de 05 de mayo de 1993 y sus reformas”, el cual dispone lo siguiente:

“Transitorio VI.- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto”.

Alegan los accionantes que dicha norma contiene varios vicios inconstitucionales, tanto de procedimiento como de fondo. Al respecto, dado que mediante resolución número 2022-008712 de las 09:10 horas del 20 de abril del 2022 esta Sala procedió a rechazar por el fondo varios de dichos alegatos, se indica en el siguiente considerando sobre cuáles alegatos corresponde que ahora se pronuncie esta Jurisdicción Constitucional.

III.- Sobre el rechazo por el fondo de varios alegatos de inconstitucionalidad realizados mediante resolución 2022-008712, y sobre los alegatos que corresponde examinar en esta acción.- Esta Sala, dentro de este mismo expediente, dictó la resolución número 2022-008712 de las 09:10 horas del 20 de abril del 2022, donde procedió al rechazo por el fondo de varios alegatos. Lo anterior por cuanto ya se había pronunciado sobre ellos en resolución número 2021-011957 de las 17:00 horas del 25 de mayo del 2021. A efectos de acotar los alegatos sobre los cuales esta Sala admitió esta acción, se indica a continuación lo ya resuelto.

A. RECHAZO POR EL FONDO DE LOS ALEGATOS Esta Sala, por resolución número 2022-008712 de las 09:10 horas del 20 de abril del 2022, le da curso a la presente acción, y al mismo tiempo, pero rechaza por el fondo cuando se indica lo siguiente: “Se rechaza por el fondo la acción en relación con la violación a los artículos 9, 33 y 167, principios de publicidad, igualdad, proporcionalidad y razonabilidad y progresividad, así como el artículo 208 bis del Reglamento de la Asamblea Legislativa y el artículo 26 de la Convención Americana de Derechos Humanos.” Así entonces, de todos los alegatos que se observan en el escrito de interposición, ya se resolvieron los siguientes:

Violación al art.167 Constitucional y al artículo 208 bis de la Asamblea Legislativa, por falta de consulta del texto modificado al Poder Judicial y por falta de publicación. Violación al artículo 167 Constitucional y al artículo 208 bis de la Asamblea Legislativa, por aprobarse sin mayoría calificada. Violación al principio de independencia judicial, arts. 9, 154, 167 y 177 Constitucional, por la creación de la Junta Administradora del Fondo. Violación al artículo 26 de la Convención Americana de Derechos Humanos y el principio de progresividad. Violación al derecho a una pensión digna, proporcional y razonable. Violación al principio de igualdad.

Se puede observar que el fundamento del rechazo obedeció a que, dichos alegatos fueron resueltos ya en acción de inconstitucionalidad anterior, que resolvió sobre la impugnación de toda la ley n°9544 en general, mediante sentencia n°2021-11957. El rechazo por el fondo obedeció entonces a las siguientes consideraciones ya expresadas por esta Sala en este último voto.

1.) Violación al art.167 Constitucional y al artículo 208 bis de la Asamblea Legislativa, por falta de consulta del texto modificado al Poder Judicial y por falta de publicación:

En criterio de los accionantes, el texto finalmente aprobado en primer debate sufrió modificaciones, y pese a ello, no fue consultado nuevamente al Poder Judicial, ni tampoco se publicó. Consideran que todo ello viola el artículo 167 Constitucional y del principio de publicidad (ver lo indicado en el voto n°2018-5758 y n°2005-398, n°2012-4621, n°2017-19636). Indican que el tema del Fondo de Jubilaciones y Pensiones del Poder Judicial es parte de la organización y funcionamiento institucional, por ello, debía ser obligatoriamente consultado. En cuanto a la publicación, ese mismo vicio fue indicado en la sentencia n°2018-5758 que resolvió la consulta legislativa facultativa cuando se indica que constituyó un vicio esencial del procedimiento legislativo por omitirse la publicación del texto sustitutivo. Siendo que no puede utilizarse la figura del saneamiento o convalidación (por el hecho de publicar el texto luego de aprobado en primer debate) por tratarse de un procedimiento abreviado, así lo indicó esta Sala en sentencia n°2012-4621 (“cuando la Asamblea Legislativa … crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa y estricta.”). Agregan que, el texto no publicado y aprobado varió aspectos esenciales como la edad de retiro, los años de servicio, el aporte obrero, el espacio transitorio, entre otros; de ahí la necesidad imperiosa de cumplir con el requerimiento de la publicidad.

Al respecto, esta Sala indicó en resolución n°2022-008712 (haciendo referencia a lo resuelto en resolución n°2021-011957) en resumen lo siguiente:

Sobre la utilización del artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa:

Se indicó que, con fundamento en el artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa los diputados aprobaron un trámite especial para el proyecto del expediente legislativo n°19.992. Trámite especial que requiere de la aprobación de una moción de orden, aprobada por dos tercios de los votos de la totalidad de miembros de la Asamblea Legislativa, únicamente para proyectos de ley cuya aprobación requiera mayoría absoluta, siempre que se respete el principio democrático. La moción de orden indicada, para este proyecto de ley, fue aprobada en sesión ordinaria n°37 del Plenario de la Asamblea Legislativa del 30 de junio del 2016, aprobada por 39 diputados a favor y 10 en contra. Luego del examen que hiciera la Sala en la resolución n°2018-005758 que conoció del proyecto de ley cuando fue conocido por esta Sala por la vía de una consulta facultativa de constitucionalidad, se indicó: “que la Sala considera que no existe ningún motivo o argumento nuevo en relación con esos puntos en concreto, que implicara una modificación del criterio ya externado y, por tanto, en consecuencia, en cuanto a esos extremos puntuales, el procedimiento previsto en el artículo 208 bis del Reglamento de la Asamblea Legislativa (ahora 234 bis), se ajusta al Derecho de la Constitución.”. Por lo demás, como el alegato de violación a esta norma del Reglamento de la Asamblea Legislativa está relacionado con la publicación, pues la moción aprobada así lo indicaba (“…h) Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto…”), se remite a lo indicado en el punto siguiente sobre la publicación.

Sobre la falta de publicación del texto aprobado en Comisión Especial el día 13 de septiembre del 2016:

Se indicó que, pese a que esta Sala constató que ciertamente el nuevo texto aprobado por la Comisión Especial el 13 de septiembre de 2016 no fue publicado, cuando dijo: “Tal Comisión Especial, se instala el 13 de septiembre siguiente, siendo que, en esa misma fecha, en su sesión ordinaria Nº 1, se conoció la moción Nº 2 (3-01 CE) de varios diputados para formalizar lo que ya se había decidido el 30 de junio anterior, es decir, que se tomara como base de discusión el texto sustitutivo que constaba en el expediente Nº 19.651 conforme se había dispuesto en el Plenario cuando se aprobó darle trámite al expediente por la vía del 208 bis del reglamento; moción que se aprobó por unanimidad de los miembros de la Comisión Especial (véase folio 1957 del expediente legislativo No. 19.922). Según se desprende del expediente legislativo, y conforme se manifiesta por algunos accionantes, ciertamente este nuevo texto aprobado por la Comisión Especial el 13 de septiembre de 2016, no fue publicado y así lo consignó esta Sala en la opinión consultiva número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 al conocer Consulta Legislativa Facultativa que se interpuso en relación con este proyecto de ley.” Pese a ello, la Sala consideró que la publicidad no es un fin en sí mismo y por tanto, no siempre la falta de publicación, en un determinado momento procesal, constituye un vicio invalidante del procedimiento legislativo. Debido a ello, y a que luego dicho texto fue abandonado por otro texto y no fue el finalmente aprobado, se resolvió que: “A juicio de la mayoría de este Tribunal, el vicio que se invoca no tiene el mérito para ser subsumido dentro de los esenciales o sustanciales, e incluso en uno relativo, toda vez que con él no se han vulnerado trámites sustanciales al procedimiento parlamentario; se trata más bien de un vicio de poca importancia.” Sobre la publicación extemporánea del texto modificado aprobado en primer debate:

La Sala indicó que no se trataba en el caso concreto del expediente 19.992 de una falta de publicación, sino de una publicación tardía o extemporánea. Ello por cuanto se constató que se aprueba en Primer Debate el texto del Dictamen Afirmativo de Mayoría aceptado por la Comisión Especial el 27 de julio de 2017, que correspondía al cuarto texto, en sesión extraordinaria No. 014 del Plenario legislativo correspondiente al 30 de octubre de 2017 (ver folio 4000 del Tomo 17). Dicho texto contenía ciertas modificaciones (por aprobación de mociones de fondo y mociones de reiteración). Así entonces, la publicación se da luego de aprobado en primer debate, en la Gaceta Digital No. 212, Alcance No. 268 de 9 de noviembre de 2017 (ver folio 4368 del Tomo 18 del expediente legislativo). Sin embargo, esta Sala consideró que ello no violentaba el principio de publicidad en consideración de lo siguiente: “Debe reiterarse, en primer lugar, que en este caso sí se realizó la mencionada publicación, pero se cuestiona una presunta publicación tardía o extemporánea de tal texto en cuestión. Por lo que debe recordarse que esta Sala ha admitido que no siempre, la falta de publicación, en un determinado momento procesal, constituye un vicio invalidante del procedimiento legislativo. (…) En cuyo caso, considera la Sala que en la especie, con la acusada publicación tardía o extemporánea del texto sustitutivo no ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento parlamentario”.

Sobre el alegato de falta de consulta al Poder Judicial:

Tampoco encontró la Sala vicio de procedimiento alguno en cuanto al alegato de falta de consulta al Poder Judicial del texto aprobado en primer debate, pues se indicó que la Corte Suprema sí fue formalmente consultada sobre el contenido del proyecto de ley que se tramitó en el expediente legislativo No. 19.922, en 3 ocasiones y sí pudo emitir su opinión en esas 3 oportunidades (oficio CE208-BI-02-2016 de 14 de septiembre de 2016, ver folios 169 y 172 del Tomo 1; oficio AL-20035-OFI-0029-2017 de 17 de abril de 2017, ver folio 1757 del Tomo 8; y oficio AL-20035-OFI-0043-2017 de 31 de julio de 2017, ver folio 2625 del Tomo 11). Así entonces, consideró la Sala que no era necesaria una cuarta consulta al Poder Judicial, en especial, tomando en cuenta lo que se indica en el punto siguiente, a saber, que el proyecto de ley en cuestión no debía ser consultado al Poder Judicial por ser típicamente materia administrativa, como lo es la administración del Fondo de Pensiones, lo que no es subsumible en la exigencia constitucional de modificaciones a la organización y el funcionamiento de la Corte Suprema de Justica que atañen a su función típica, exclusiva, sea la jurisdiccional y aquellas administrativas esenciales que dan soporte a su función primaria.

2.-) Violación al artículo 167 Constitucional y al artículo 208 bis de la Asamblea Legislativa, por aprobarse sin mayoría calificada.

Indican los accionantes que, según dispone el art.167 Constitucional, para poder separarse del criterio del Poder Judicial la Asamblea Legislativa requería de mayoría calificada. Sin embargo, la ley impugnada se aprobó con 31 votos a favor. Agregan que, en las tres ocasiones en que la Corte fue consultada fue enfática en indicar su posición negativa, por lo que ello obligaba a la Asamblea Legislativa a aprobar la ley con mayoría calificada. Además, se trató de una violación al Reglamento pues el art.208 bis del Reglamento de la Asamblea establece que los únicos proyectos sometidos a procedimiento abreviado son aquellos que requieran una mayoría simple, escenario que no acontece en este caso. Argumentan que, el primer debate en sesión extraordinaria n°14 del 30 de octubre del 2017 se aprobó con 31 votos y el segundo debate en sesión ordinaria n°163 del 19 de abril del 2018 se aprobó con 34 votos a favor. Así que ninguno cumplió con los 38 votos requeridos.

Al respecto, esta Sala indicó en resolución n°2022-008712 (haciendo referencia a lo resuelto en resolución n°2021-011957) que el proyecto no debía ser consultado a la Corte, y por lo tanto, no resultaba de aplicación del art.167 Constitucional, ni la mayoría allí establecida:

“En la opinión consultiva n.° 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, expresamos lo siguiente:…

Ahora bien, con vista en lo expuesto anteriormente, este Tribunal considera que la materia sobre la que versa el expediente legislativo número 19.922 no se encuentra dentro de los supuestos fijados por el artículo 167 de la Constitución Política y, por ende, no existía la obligación de realizar una consulta a la Corte Suprema de Justicia.

… cuya funciones son típicamente administrativas, sea la administración del citado Fondo, lo que no es subsumible en la exigencia constitucional de modificaciones a la organización y el funcionamiento de la Corte Suprema de Justica que atañen a su función típica, exclusiva, sea la jurisdiccional y aquellas administrativas esenciales que dan soporte a su función primaria.” (…) Para la mayoría de este Tribunal no existen motivos que justifiquen variar el criterio ya vertido en dicha opinión consultiva, en el sentido que la materia sobre la que versó el expediente legislativo nro. 19.922 y que, finalmente, se aprobó como Ley nro. 9544, no se enmarca dentro de los supuestos fijados o contemplados por el artículo 167 de la Constitución Política y, por ende, ni existía la obligación constitucional de realizar una consulta a la Corte Suprema de Justicia, ni -como corolario- existía la obligación de que el citado proyecto se aprobara mediante dos terceras partes del total de los miembros de la Asamblea Legislativa, ante el criterio negativo de la Corte Suprema de Justicia sobre el proyecto. Ergo, también procede desestimar la acción de inconstitucionalidad respecto a este punto.” Así concluye que, aunque es correcto que el proyecto de ley en cuestión fue aprobado por 31 votos en primer debate y 34 votos en segundo debate, no se requerían los 38 votos que manda el artículo 167 Constitucional, porque la materia del proyecto es administrativa y no se refiere a la organización y/o funcionamiento del Poder Judicial.

3.-) Sobre el alegato de violación a la independencia judicial por la creación de la Junta de Jubilaciones y Pensiones del Poder Judicial:

Indican los accionantes que la creación de una estructura en el Poder Judicial pero independiente de este en todo sentido, que modifica las competencias y funciones tanto de la Corte Plena, como del Consejo Superior, se constituye en una intromisión a la independencia y separación de Poderes establecida en los artículos 9 y 154 de la Constitución Política.

Al respecto, esta Sala indicó en resolución n°2022-008712 (haciendo referencia a lo resuelto en resolución n°2021-011957) que: “la mayoría de este Tribunal, concluye que no hay una afectación a esos extremos en los términos del artículo 167 constitucional. El hecho de que cree una Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial per se no conlleva la creación de un órgano que varíe sustancialmente las funciones de carácter administrativos del Poder Judicial; igual ocurre con la eliminación de esas funciones que tenían la Corte Suprema de Justicia y el Consejo Superior en relación con la materia, de ahí que no se estaba en el supuesto del numeral 167 de la Carta Fundamental. Es decir, no se estaban sustrayendo competencias administrativas esenciales conexas con la función jurisdiccional.” Así concluye indicando que, la iniciativa del legislador de realizar cambios al régimen de pensiones del Poder Judicial no significa un vaciamiento del contenido esencial de la independencia judicial; por ello: “Según las consideraciones anteriores, no se requería de mayoría calificada para su aprobación, y dado que el proyecto del expediente legislativo No. 19.922 se aprobó en Primer Debate con 31 diputados y diputadas a favor y 7 en contra (folio 4173 Tomo 17 del expediente legislativo), en tanto que en Segundo Debate se aprobó con 34 diputados y diputadas a favor y 9 en contra (folios 4437, 4608 y 4637 Tomo 18 del expediente legislativo), no se estima que se da el vicio alegado al principio de independencia judicial.” 4.-) Sobre el alegato de violación al artículo 26 de la Convención Americana de Derechos Humanos y el principio de progresividad.- Indican los accionantes que, dentro de los derechos sociales se encuentra el derecho al trabajo y con ello a una jubilación. Este derecho corresponde a un derecho de seguridad social que ha sido ratificado no solo por diferentes instrumentos internacionales sino por normas jurídicas nacionales y que ya teniendo ciertas condiciones, esta no pueden ser variadas en perjuicio de los derechos humanos de quienes ostentan el derecho o la situación jurídica consolidada. Argumentan que este transitorio se torna en una norma restrictiva, no progresiva de sus derechos humanos, pues no se respetó la enorme cantidad de años que han pertenecido y cotizado al régimen y cuyo beneficio debió haberse resguardado con un transitorio razonable, justo, sustentado en criterios técnicos y objetivos. Sobre la aplicación del art.26 de la CADH véase el voto n°1995-3932.

Al respecto, esta Sala indicó en resolución n°2022-008712 (haciendo referencia a lo resuelto en resolución n°2021-011957) que: “no existen elementos de juicio que permitan afirmar que el plazo establecido en el transitorio VI de la Ley 9544, es irrazonable o desproporcionado respecto de la finalidad que se pretende con la disposición, y más bien, la decisión legislativa resulta justificada frente a los cambios realizados. De igual forma, no hay infracción al derecho convencional que declarar y por ende la acción debe declararse sin lugar en este aspecto”.

De lo cual se entiende que, de contar la Sala con elementos de juicio para valorar la razonabilidad y proporcionalidad del plazo establecido en el Transitorio VI, se podría considerar también ello como violatorio del principio de progresividad de los derechos humanos. Por ello, este aspecto se examinará por el fondo más adelante en esta resolución.

5.-) Sobre los alegatos de violación al derecho a una pensión digna, proporcional y razonable:

Indican los accionantes que, el transitorio VI es una medida desproporcional e irrazonable, pues es demasiado el perjuicio que se les impuso al pasar de unos meses a más de diez años. Indican que se contempló un proyecto de vida, dadas las condiciones de trabajo que les fueron ofrecidas, dentro de las cuales se encontraba el disfrute a una jubilación digna a través del Fondo de Jubilaciones y Pensiones del Poder Judicial, previo cumplimiento razonable de años de servicio y edad, conforme a los cuales se podrían retirar con un ingreso digno, después de haber otorgado toda una vida productiva al servicio de la comunidad y del Poder Judicial. Insisten en que, la pertenencia y eventual goce de una jubilación con cargo al Fondo de Jubilaciones y Pensiones del Poder Judicial, forma parte del contrato de trabajo y de las condiciones laborales que en su momento se establecieron para los accionantes, las cuales se han mantenido durante veinte, veinticinco y veintiocho años de servicio y resulta contrario al derecho de la constitución y de los derechos humanos, que reciban una modificación tan drástica como la que se estableció el transitorio VI de la ley 9544, lo que resulta contrario al derecho al trabajo y a la jubilación establecida en el artículo 73 de la Constitución Política. Esta Sala, en su sentencia número 5758-2018, indicó que las variaciones al derecho de pensión eran permitidas siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no se afecte su contenido esencial.

Al respecto, esta Sala indicó en resolución n°2022-008712 (haciendo referencia a lo resuelto en resolución n°2021-011957) que la jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo determinado, y cuyo fin es garantizar una vida digna para la persona, luego de que finalice su etapa como trabajador. Declarando que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución; y además, en los artículos 25, 28, 29 y 30 del Convenio sobre la Seguridad Social, No. 102 de la OIT; el artículo 16 de la Convención Americana de los Derechos y Deberes del Hombre; los artículos 22 y 25 de la Declaración Universal de Derechos Humanos; el artículo 31 de la Carta Internacional Americana de Garantías Sociales; el artículo 5 de la Convención sobre Igualdad de Trato en Materia de Seguridad Social, número 118 de la O.I.T.; el artículo 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, ámbito internacional, que de conformidad con el artículo 7 Constitucional, está integrado a nuestro ordenamiento jurídico. Indicó además la Sala Constitucional que, como el derecho a la pensión no es un derecho absoluto, el Estado tiene la potestad de regular, ordenar y limitar los alcances de tal derecho. En este sentido, se concluyó que, el Estado, a través de sus autoridades competentes, pueda ajustar las condiciones concretas de ejercicio del derecho de jubilación del que gozan los trabajadores, no solo a través del establecimiento de requisitos a cumplir para su efectivo disfrute, sino mediante la modificación precisa de las características de ese disfrute, con el fin de equilibrar la sostenibilidad de dicho régimen y respetando la exigencia de que los cambios sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Así concluye la Sala que: “al comprobar que la variación de requisitos dispuesta por … el transitorio VI del proyecto de ley tienen como fin último garantizar el derecho de jubilación de los(as) servidores(as) judiciales, la Sala descarta el vicio alegado.” De lo cual se entiende que, de contar la Sala con elementos de juicio para valorar la razonabilidad del plazo establecido en el Transitorio VI, se podría considerar también ello como violatorio del derecho a una pensión digna, proporcional y razonable. Así entonces, este aspecto se examinará por el fondo más adelante en esta resolución.

6.-) Sobre los alegatos de violación al principio de igualdad:

Indican los accionantes que, las otras reformas jubilatorias y las personas que han sido objeto de estas han tenido un transitorio escalonado que les ha permitido modular sus condiciones de vida y sus expectativas jubilatorias, situación que no se ha permitido en el Poder Judicial. Agregan que, los servidores judiciales han pasado de tener una expectativa de jubilación pronta, a unos pocos años, a pasar a más de una década de trabajo, para qué recibir posteriormente una jubilación que no responde ni a un cincuenta por ciento de su salario y por la cual se ha cotizado por más de 20 años una suma cuantiosa de su ingreso salarial mensual. Por ello consideran que resulta completamente discriminatorio y violatorio a los derechos fundamentales estipulados en nuestra Constitución Política, afectar directamente a una población tan vulnerable y con escasas fuentes de trabajo en nuestro país. Ningún grupo jubilatorio que ha sufrido reformas ha soportado un transitorio tan ajustado como los están viviendo mis representados. Sin ninguna razón objetiva que justifique una diferencia de tratamiento de los accionantes, con los que laboran en el Tribunal Supremo de Elecciones, es que a estos últimos, se les declaró un derecho irrestricto de reconocimiento de sus condiciones jubilatorias, aun y cuando se está en presencia de normativa derogada, sin importar el tiempo que durasen en cumplir aquellos requisitos (ver el Transitorio II de Ley n°9544).

Al respecto, esta Sala indicó en resolución n°2022-008712 (haciendo referencia a lo resuelto en resolución n°2021-011957) que: “una declaración de inconstitucionalidad en este caso, requiere de la aportación de elementos de juicio que logren demostrar la ausencia de proporcionalidad y razonabilidad de emplear el plazo de 18 meses fijado por la jurisprudencia constitucional a partir de la vigencia de la reforma, para la extensión del ámbito de cobertura del régimen previsional anterior.” De lo cual se entiende que, de contar la Sala con elementos de juicio para valorar la razonabilidad y proporcionalidad del plazo establecido en el Transitorio VI, se podría considerar también ello como violatorio del principio de igualdad. Por ello, este aspecto se examinará por el fondo más adelante en esta resolución.

• B)SOBRE LOS ALEGATOS ADMITIDOS EN ESTA ACCIÓN Tal como lo indica la resolución que le dio curso a esta acción, ésta se admitió para el análisis del resto de argumentos indicados por los accionantes, a saber:

“Se da curso a la presente acción de inconstitucionalidad contra el Transitorio VI de la Ley de Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, No. 9544, por la presunta violación a los artículos 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución Política, Convenios 102, 118, 128 y 157 de la OIT, y los principios democrático, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad relativa del patrimonio, no confiscatoriedad y respeto a los derechos adquiridos y situaciones jurídicas consolidadas, artículos 14 del Pacto Internacional de Derechos Civiles y Político y 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales.” Además, por lo dicho en puntos anteriores, se debe entender que esta Sala ha admitido esta acción, al plazo establecido en el Transitorio VI impugnado, en tanto se cuenten con elementos de prueba o elementos de juicio necesarios para que esta Sala realice su valoración respecto de la posible violación a los principios de razonabilidad y proporcionalidad, del principio de progresividad, del principio de igualdad y del derecho a gozar de una pensión digna, razonable y proporcional.

En síntesis, se admitió esta acción y la acumulada, para el examen de los alegatos que se agrupan en los puntos siguientes:

1.-) Violación a los principios de razonabilidad y proporcionalidad por falta de criterio técnico en el plazo establecido en el Transitorio VI impugnado y con ello violación del principio de progresividad, del principio de igualdad y del derecho a gozar de una pensión digna, razonable y proporcional: Consideran los accionantes que no existe ningún fundamento jurídico que respalde el plazo de dieciocho meses otorgado como Transitorio para la aplicación de la nueva reforma, mismo que resulta irracional y antojadizo, en razón de que no existe ningún fundamento legal o un criterio técnico que lo respalde. Indican que, del estudio de las modificaciones legales a los regímenes jubilatorios existentes en Costa Rica, se observa que ninguno ha sufrido una modificación tan drástica y desigual (ver por ejemplo cuadro de reformas al Magisterio Nacional, al régimen de Invalidez, Vejez y Muerte de la CCSS). Así, viola el artículo 33 constitucional pues las modificaciones al Fondo de Jubilaciones y Pensiones del Poder Judicial afectan a los funcionarios de este poder de manera más gravosa que lo que han sido afectados otros empleados públicos. Del estudio de las modificaciones legales a los regímenes jubilatorios existentes en Costa Rica, se observa que ninguno ha sufrido una modificación tan drástica y desigual como la que ha venido operar en el fondo de jubilaciones y pensiones de Poder Judicial con la entrada en vigencia de la ley n° 9544 todas las reformas legales a los regímenes jubilatorios existentes en Costa Rica, sean del primer Pilar o de regímenes sustitutivos, han contado con normas transitorias que permiten una gradualidad en su aplicación, respetándose derechos adquiridos, situaciones jurídicas consolidadas y permitiendo el ingreso de la reforma, a la población, de forma que no se violen sus derechos fundamentales. Consideran que no resulta razonable que a pocos años de tener el cumplimiento de requisitos establecidos por el legislador, estos sean variados sin un estudio técnico que respalde la procedencia de las nuevas medidas a aplicar. Igualmente, la Organización Internacional del Trabajo ha señalado la necesidad de contar con criterio técnico para realizar variaciones en los regímenes de pensiones. Lo anterior, no se respeta en el caso concreto, toda vez que la Ley número 9544 cambia esencialmente todas las condiciones jubilatorias sobre las cuales sus representados tenían una expectativa durante muchos años. Así las cosas, se cambian las condiciones de tiempo servido, de salario, de aporte de cotizaciones forzosas, cambia sustancialmente el ingreso que se tendría por concepto de jubilación; y, sobre todo, cambia el tiempo de servicio faltante a pesar de que la mayoría cuenta con más de 25 años de servicio para la institución. Alegan que es demasiado el perjuicio que se les impuso al pasar de unos meses, a más de diez años -en la mayoría de los casos-, para adquirir un derecho jubilatorio, que, por demás, es ahora ruinoso, a pesar de haber cotizado durante tantos años al Fondo de Jubilaciones y Pensiones del Poder Judicial. Además, aseveran que, no se comprobó dentro del expediente legislativo, que existiera un peligro a las finanzas del Fondo, por permitir que el grupo de personas que a diez años o menos para adquirir el derecho jubilatorio pusiera en peligro la salud del Fondo de Jubilaciones y Pensiones del Poder Judicial, de manera que el Transitorio VI se vuelve arbitrario. En Derecho Comparado hay sentencias que ratifican normas transitorias razonables sobre las condiciones jubilatorias (ver sentencias T-235-2002 y T-631-2002 del Tribunal Constitucional Colombiano). Así se indica que se está ante la ausencia técnica de una norma transitoria que introduzca las nuevas condiciones jubilatorias como una imposición abrupta, no progresiva y en perjuicio de los derechos adquiridos y las situaciones jurídicas consolidadas.

2.-) Violación de situaciones jurídicas consolidadas en el Transitorio VI impugnado, y con ello violación a otros derechos fundamentales irrenunciables y de los principios democrático, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad relativa del patrimonio, no confiscatoriedad y respeto a los derechos adquiridos y situaciones jurídicas consolidadas: Según los accionantes, el proyecto de vida de quienes depositaron su confianza legítima y su buena fe en la institución como patrono y con la expectativa de tener una jubilación digna a través del Fondo de Jubilaciones y Pensiones del Poder Judicial, se ve truncado, pues han cotizado durante muchos años, dando un aporte significativo de su salario mensual, lo que implica una variación a las condiciones del contrato de trabajo que hace 20 años o más se pactaron entre los accionantes y el Poder Judicial. Consideran que, si ya se cuenta con más de 20 años o más de servicio judicial, resulta más difícil tomar la decisión de renunciar por la ampliación grosera de esos plazos y dada la gran cantidad de dinero que estas personas han invertido en el Fondo de Jubilaciones. Indican que en otros regímenes de pensiones sí se están respetando las situaciones jurídicas consolidadas e incluso se permite el traslado a otro régimen jubilatorio menos confiscatorio que el del Fondo del Poder Judicial. A partir de la sentencia No. 2794-2003 se extrae que el Estado costarricense tiene la obligación de respetar los derechos y situaciones jurídicas consolidadas de los funcionarios judiciales y procurar su desarrollo progresivo. Así la ley cuestionada no les permite una jubilación con los requisitos establecidos en el título IX de la Ley n°7333 del 05 de mayo de 1993. Agregan que, al no incluirlos en el transitorio VI de la Ley cuestionada, sin un análisis técnico-científico, objetivo, claro y cuantificable, se vulnera el principio constitucional de confianza legítima (ver votos números 2010-010171, 8000-16, 8689-19, 6198-20 y 2910-18), dado que, hubo un cambio abrupto y significativo de las reglas del juego, vulnerándose de esta manera su buena fe y la seguridad jurídica que los cobijaba dentro de un contrato laboral con determinadas condiciones de jubilación. En cuanto a los principios de seguridad jurídica, transparencia, buena fe, sistema democrático y solidaridad, señalan la necesidad que existe de que los ciudadanos en todo momento sepan a qué atenerse en sus relaciones con el Estado y con los demás particulares. siendo de esta manera incluso lesivos de su patrimonio y hasta confiscatorios, pues sus expectativas se mantuvieron a lo largo de un período de tiempo mayor y de un momento a otro vieron desmejoradas sus condiciones. Sostienen los accionantes que, el Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues se trata de derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó a un régimen en un porcentaje superior al general, con la expectativa de contar con una pensión que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida. Consideran que se les perjudica al pasar de estar a poco tiempo de jubilarse a que actualmente se les aplique una decena o más de años pendientes de laborar, todo por la aplicación automática de una norma que en su entender es inconstitucional. Concluyen que resulta contrario al derecho de la constitución y de los derechos humanos que reciban una modificación tan drástica como la que ésta se estableció el transitorio VI de la ley 9544, por lo que siendo contrario al derecho al trabajo y a la jubilación establecida en el artículo 73 de la Constitución Política. Las condiciones ofrecidas a los servidores judiciales al inicio de su labor han cambiado notoriamente.

3.-) Violación de tratados internacionales (artículo 14 PIDCyP y artículo 9 PIDESC) y de los convenios de la OIT (convenios 102, 118, 128 y 157): Indican los accionantes que, dentro de los derechos sociales se encuentra el derecho al trabajo y con ello a una jubilación. Este derecho corresponde a un derecho de seguridad social que ha sido ratificado no solo por diferentes instrumentos internacionales sino por normas jurídicas nacionales y que ya teniendo ciertas condiciones, esta no pueden ser variadas en perjuicio de los derechos humanos de quienes ostentan el derecho o la situación jurídica consolidada. Este transitorio se torna en una norma restrictiva, no progresiva de sus derechos humanos, pues no se respetó la enorme cantidad de años que han pertenecido y cotizado al régimen y cuyo beneficio debió haberse resguardado con un transitorio razonable, justo, sustentado en criterios técnicos y objetivos. Se indica además que, el Convenio 102 de la OIT contempla y desarrolla la base del derecho a la jubilación al contemplar en los artículos 25 y siguientes que todo miembro para el cual esté vigente el convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez. En igual sentido, el Convenio 128, artículos 19 y siguientes. El artículo 118 del Convenio de la OIT refiere en su artículo 7 que los estados miembros deben esforzarse en participar en un sistema de conservación de derechos adquiridos y derechos en vías de adquisición. En el mismo sentido, el Convenio 157, artículos 6 y siguientes. Así concluyen que, la norma impugnada resulta contraria a la normativa expuesta en la medida en que se dictó el transitorio cuestionado sin tutelar los derechos en vías de adquisición de una manera escalonada y proporcionada.

En vista de lo anterior, procede el examen de los argumentos anteriores.

IV.- Las reglas de legitimación en las acciones de inconstitucionalidad y la legitimación en este caso.- El artículo 75 de la Ley de la Jurisdicción Constitucional regula los presupuestos que determinan la admisibilidad de las acciones de inconstitucionalidad, exigiendo la existencia de un asunto pendiente de resolver en sede administrativa o judicial en el que se invoque la inconstitucionalidad, requisito que no es necesario en los casos previstos en los párrafos segundo y tercero de ese artículo, es decir, cuando por la naturaleza de la norma no haya lesión individual o directa; cuando se fundamente en la defensa de intereses difusos o que atañen a la colectividad en su conjunto, o cuando sea presentada por el Procurador General de la República, el Contralor General de la República, el Fiscal General de la República o el Defensor de los Habitantes, en estos últimos casos, dentro de sus respectivas esferas competenciales. De acuerdo con el primero de los supuestos previstos por el párrafo 2° del artículo 75 de la Ley de la Jurisdicción Constitucional, la norma cuestionada no debe ser susceptible de aplicación concreta, que permita luego la impugnación del acto aplicativo y su consecuente empleo como asunto base. En segundo lugar, se prevé la posibilidad de acudir en defensa de "intereses difusos", que son aquellos cuya titularidad pertenece a grupos de personas no organizadas formalmente, pero unidas a partir de una determinada necesidad social, una característica física, su origen étnico, una determinada orientación personal o ideológica, el consumo de un cierto producto, etc. El interés, en estos casos, se encuentra difuminado, diluido (difuso) entre una pluralidad no identificada de sujetos. Esta Sala ha enumerado diversos derechos a los que les ha dado el calificativo de "difusos", tales como el medio ambiente, el patrimonio cultural, la defensa de la integridad territorial del país, el buen manejo del gasto público, y el derecho a la salud, entre otros. Por otra parte, la enumeración que ha hecho la Sala Constitucional no es taxativa. Finalmente, cuando el párrafo 2° del artículo 75 de la Ley de la Jurisdicción Constitucional habla de intereses "que atañen a la colectividad en su conjunto", se refiere a los bienes jurídicos explicados en las líneas anteriores, es decir, aquellos cuya titularidad reposa en los mismos detentadores de la soberanía, en cada uno de los habitantes de la República. No se trata por ende de que cualquier persona pueda acudir a la Sala Constitucional en tutela de cualesquiera intereses (acción popular), sino que todo individuo puede actuar en defensa de aquellos bienes que afectan a toda la colectividad nacional, sin que tampoco en este campo sea válido ensayar cualquier intento de enumeración taxativa. A partir de lo dicho en el párrafo anterior, y tomando en cuenta que se tiene como asunto base el recurso de amparo tramitado bajo el expediente n°19-006391-0007-CO del primer accionante y de la acción acumulada los amparos n°22-013966-0007-CO (María Ester Brenes Villalobos), 22-013963-0007-CO (Carmen Violeta Cerdas Cisneros), 22-013961-0007-CO (Álvaro Jesús Valverde Rojas), 22-013981-0007-CO (Blanca Luz Jiménez Chaves), 22-013982-0007-CO (Hermes de los Ángeles Zamora Atencio), 22-013980-0007-CO (Mario Alberto Sáenz Rojas), 22-013973-0007-CO (Luis Rodolfo Chaves Cordero), 22-013978-0007-CO (Paula Esmeralda Guido Howell), 22-013969-0007-CO (Robert Camacho Villalobos), 22-013977-0007-CO (Cristia María Carballo Solano), 22-013971-0007-CO (Rolando Alberto Brenes Mora), 22-013970-0007-CO (María Auxiliadora Madrigal León), 22-013960-0007-CO (German Brenes Montero) y 22-013959-0007-CO (Juan Carlos Cubillo Miranda). Esta Sala considera que los accionantes ostentan legitimación suficiente para demandar la inconstitucionalidad de la norma impugnada. Por lo demás, se trata en efecto, de materia cuya constitucionalidad procede revisar en esta vía. Además, los actores cumplieron los requisitos estipulados en los numerales 78 y 79 de la Ley de rito. En conclusión, la presente acción es admisible, por lo que debe entrarse de inmediato a discutir el fondo del asunto.

V.- En general: sobre el origen de la reforma al régimen de pensiones del Poder Judicial, realizado mediante ley n°9544.- El Fondo de Jubilaciones y Pensiones del Poder Judicial pertenece a uno de los regímenes básicos. Fue creado mediante Ley No. 34 del 9 de julio de 1939. Luego dicho Fondo pasó a formar parte de la Ley Orgánica del Poder Judicial No. 8 de 29 de noviembre de 1937, constituyendo el título XI: “De las Jubilaciones y Pensiones Judiciales”. En los años siguientes (1959, 1961,1962, 1963, 1964, 1971, 1983) se hicieron varias reformas a su articulado, en cuanto a requisitos de edad y años de servicio para jubilarse, así como la determinación de los beneficiarios. Posteriormente con la Ley No. 7333 de 5 de mayo de 1993 se reformó integralmente la Ley Orgánica del Poder Judicial No. 8 y el título correspondiente a las Jubilaciones y Pensiones Judiciales pasó a ser el IX; posteriormente la Ley 7605 del 2 de mayo de 1996 reformó varios artículos de este título.

En los años 2012 y 2013, producto de las revelaciones hechas por estudios actuariales, el Poder Judicial inició un proceso interno tendente a elaborar una propuesta de reforma. Esta preocupación, junto a otras referidas a todos los regímenes de pensiones, llevaron a que en fecha 05 de abril del 2016 se presentada el expediente legislativo No. 19.922 “Proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, la promoción de esa iniciativa se dio ante el interés de varias bancadas legislativas de “(…) realizar una reforma integral a todo el régimen de pensiones, con el objetivo de eliminar disposiciones abusivas, racionalizar el gasto, dar estabilidad a los diversos regímenes especiales de pensiones y al Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. Lo anterior, con fundamento en los principios de solidaridad, igualdad, justicia redistributiva y eficiencia, los cuáles son pilares dentro de nuestro estado social de Derecho”.

A partir del expediente legislativo, se observa que el proyecto inicial estaba dirigido a reformar todos los regímenes de pensiones; sin embargo, posteriormente el Poder Legislativo se centró en tramitar por separado la reforma al Régimen de Jubilaciones y Pensiones del Poder Judicial. Así el expediente legislativo n°19.922 pasó a abocarse únicamente a la reforma del régimen de jubilaciones y pensiones del Poder Judicial. El proyecto tuvo 3 textos sustitutivos más. El original es del 05 de abril del 2016 (publicado en el Alcance 110 de La Gaceta del jueves 30 de junio de 2016), posteriormente en Sesión ordinaria No. 37 del 20 de junio de 2016 del Plenario Legislativo se aprueba una moción vía artículo 208 bis del Reglamento de la Asamblea Legislativa, Esa moción estableció el procedimiento especial aplicado a este proyecto de Ley y en misma moción se creó una Comisión Especial No. 20035 que sería la encargada de tramitar el proyecto. El primer texto sustitutivo es del 30 de junio del 2016, ratificado en la sesión del 13 de setiembre del 2016 por la Comisión Especial (este texto no fue publicado, según consta en el voto de esta Sala n°2018-005758, pero no se encontró que ello fuera un vicio sustancial), y a partir del cual se cambia formalmente el nombre del proyecto para denominarse “Reforma del Título IX de la Ley Orgánica del Poder Judicial, de las Jubilaciones y Pensiones Judiciales No. 7333 del 5 de mayo de 1993 y sus reformas” (folios 1674 y 1717 del Tomo 7 del expediente legislativo); moción de texto sustitutivo que fue aprobada con 7 diputados a favor y 1 en contra (folio 1731 tomo 7). El segundo texto sustitutivo es del 29 de marzo del 2017 (publicado en el Alcance No. 91 del jueves 27 de abril de 2017, ver folio 2126); el tercer texto sustitutivo es aprobado por la Comisión Especial en sesión n°23 del 27 de julio del 2017 (Dictamen Afirmativo de Mayoría fue publicado en la Gaceta n°147, Alcance No. 189 del viernes 4 de agosto de 2017 y, de igual manera, en la Gaceta n°148, el Alcance No. 190 del lunes 7 de agosto de 2017, se publicó el Dictamen de Minoría). En todas esas versiones anteriores, la Corte Plena emitió criterio negativo en las tres ocasiones en que fue consultada, mediante:

-1° (2016): Sesión de Corte Plena No. 29-16 del 26 de septiembre de 2016, artículo XVIII, comunicándose a la Asamblea Legislativa mediante oficio SP-288-16 del 28 de septiembre de 2016 con la indicación expresa de que el proyecto de ley consultado, incide en la organización y funcionamiento del Poder Judicial (folio 284 Tomo 2 del expediente legislativo).

-2° (2017, tercer texto sustitutivo): la Corte Plena en sesión No. 9-17 del 24 de abril de 2017, artículo XXIX, conoció la consulta que se le planteó y mediante oficio SP-118-17 de 26 de abril de 2017 suscrito por la Secretaria General de la Corte Suprema de Justicia, acordó hacer del conocimiento de la Comisión Especial Legislativa que Corte Plena emitió criterio negativo al proyecto de ley consultado, a la vez que estimó que incide en la organización y funcionamiento del Poder Judicial (folio 1829 Tomo 8 del expediente legislativo).

-3° (2018, cuarto texto sustitutivo): la Corte Plena en sesión 26-17 de 7 de agosto de 2017, artículo XXX, conoció la consulta planteada por la Comisión Especial de cita sobre el Dictamen Afirmativo de Mayoría y, por tercera vez, emitió criterio negativo respecto proyecto e indicando que el proyecto de ley tramitado bajo expediente No. 19.922, incide en la organización, estructura y funcionamiento del Poder Judicial; decisión que se comunica a la Asamblea Legislativa mediante oficio SP-253-17 de 10 de agosto de 2017 (folio 2759 del Tomo 12 del expediente legislativo).

Finalmente, luego de aprobarse varias mociones de fondo que lo modificaron y de aprobarse mociones de reiteración, dicho proyecto recibió aprobación en primer debate, mediante sesión extraordinaria n°14 del 30 de octubre del 2017 donde se aprobó con 31 votos, 7 votos en contra y 8 abstenciones. La publicación se da luego de aprobado en primer debate, en documento publicado en la Gaceta Digital No. 212, Alcance No. 268 de 9 de noviembre de 2017 (véase folio 4368 del Tomo 18 del expediente legislativo). Luego, en segundo debate, mediante sesión ordinaria n°163 del 19 de abril del 2018 se aprobó con 34 votos a favor.

Así, la Ley n°9544, cuyo transitorio VI está aquí impugnado, entró en vigencia el 22 de mayo del 2018. Dicha ley implicó varios cambios, uno de ellos fue cambiar la administración del Fondo de Pensiones del Poder Judicial, creando la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial (JA-FJPPJ), además de cambios en las condiciones de jubilación (se aumentó la edad para jubilarse, se aumentó la cantidad de años de servicio, se modificó el cálculo del monto de la pensión, se modificaron las condiciones de la jubilación anticipada).

Ahora bien, luego de aprobarse en primer debate, el proyecto de ley fue llevado a consulta facultativa de constitucionalidad (resuelta mediante resolución n°2018-005758 de las quince horas con cuarenta minutos del doce de abril de dos mil dieciocho[1]), y al convertirse en ley, fue presentada una acción de inconstitucionalidad que conoció de la impugnación total de la ley (resuelva mediante resolución n°2021-11957 de las nueve horas quince minutos del veinticinco de mayo de dos mil veintiuno[2]). Estos dos antecedentes jurisprudenciales ya fueron referenciados en la resolución que le dio curso a esta acción (resolución n°2022-008712 las nueve horas y diez minutos del veinte de abril de dos mil veintidós[3]).

De todo lo anterior, se tiene en concreto, sobre la cronología que siguió el transitorio VI aquí impugnado, desde el texto original hasta el finalmente aprobado, que el proyecto de ley base, n°19922 hacía referencia a un único transitorio, el XIII de la Ley Orgánica del Poder Judicial donde se proponía:

“Transitorio XIII.- Las reformas a esta ley no serán aplicables a aquellos servidores y servidoras judiciales que al momento de la entrada en vigencia de estas reformas tengan veinte años o más de laborar en el Poder Judicial, los cuales tendrán derecho a jubilarse, conforme a las disposiciones previamente establecidas a esta reforma, siempre que cumplan con todos los requisitos establecidos en el régimen jurídico anterior. En lo que respecta a las demás personas que a la entrada en vigencia de la presente ley ocupen cargos en propiedad en el Poder Judicial, se les otorgará el beneficio de cálculo diferenciado al momento en que alcancen los requisitos para acogerse a la jubilación, en atención al tiempo servido y los aportes realizados al Fondo de Jubilaciones antes de esta reforma, aplicando los siguientes parámetros: 1.-A quienes tengan entre 0 y 10 años de servicio, la jubilación se les calculará con base en el promedio de los últimos noventa y seis salari os (8 años). 2.-A quienes tengan más de 10 y hasta 15 años de servicio, la jubilación se les calculará con base en el promedio de los últimos setenta y dos salarios (6 años). 3.- A quienes tengan más de 15 y hasta menos de 20 años de servicio, la jubilación se les calculará con base en el promedio de los últimos cuarenta y ocho salarios (4 años).” Posteriormente, en este Dictamen de la Comisión, del 27 de julio del 2017, se deja de lado la reforma que inicialmente se planteaba al transitorio XIII; y se incluyen seis transitorios, entre ellos el Transitorio VI, cuya redacción era la siguiente:

“TRANSITORIO VI.- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del Título IX de la Ley N°7333 del 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.

Una vez pasados los dieciocho meses, los servidores judiciales podrán acogerse a una jubilación ordinaria transitoria, la cual se regirá por la siguiente tabla:

Edad a la fecha de rige de la ley Años de servicio a la fecha de rige de la ley Edad requerida Años de servicio requeridos Cantidad de meses para el salario de referencia % del salario de referencia Años-meses Años-meses Años-meses Años-meses 58-5 28-5 60-1 30-1 63 99,50% 58-4 28-4 60-2 30-2 66 99,00% 58-3 28-3 60-3 30-3 69 98,50% 58-2 28-2 60-4 30-4 72 98,00% 58-1 28-1 60-5 30-5 75 97,50% 58-0 28-0 60-6 30-6 78 97,00% 57-11 27-11 60-7 30-7 81 96,50% 57-10 27-10 60-8 30-8 84 96,00% 57-9 27-9 60-9 30-9 87 95,50% 57-8 27-8 60-10 30-10 90 95,00% 57-7 27-7 60-11 30-11 93 94,50% 57-6 27-6 61-0 31-0 96 94,00% 57-5 27-5 61-1 31-1 99 93,50% 57-4 27-4 61-2 31-2 102 93,00% 57-3 27-3 61-3 31-3 105 92,50% 57-2 27-2 61-4 31-4 108 92,00% 57-1 27-1 61-5 31-5 111 91,50% 57-0 27-0 61-6 31-6 114 91,00% 56-11 26-11 61-7 31-7 117 90,50% 56-10 26-10 61-8 31-8 120 90,00% 56-9 26-9 61-9 31-9 123 89,50% 56-8 26-8 61-10 31-10 126 89,00% 56-7 26-7 61-11 31-11 129 88,50% 56-6 26-6 62-0 32-0 132 88,00% 56-5 26-5 62-1 32-1 135 87,50% 56-4 26-4 62-2 32-2 138 87,00% 56-3 26-3 62-3 32-3 141 86,50% 56-2 26-2 62-4 32-4 144 86,00% 56-1 26-1 62-5 32-5 147 85,50% 56-0 26-0 62-6 32-6 150 85,00% 55-11 25-11 62-7 32-7 153 84,50% 55-10 25-10 62-8 32-8 156 84,00% 55-9 25-9 62-9 32-9 159 83,50% 55-8 25-8 62-10 32-10 162 83,00% 55-7 25-7 62-11 32-11 165 82,50% 55-6 25-6 63-0 33-0 168 82,00% 55-5 25-5 63-1 33-1 171 81,50% 55-4 25-4 63-2 33-2 174 81,00% 55-3 25-3 63-3 33-3 177 80,50% 55-2 25-2 63-4 33-4 180 80,00% 55-1 25-1 63-5 33-5 183 79,50% 55-0 25-0 63-6 33-6 186 79,00% 54-11 24-11 63-7 33-7 189 78,50% 54-10 24-10 63-8 33-8 192 78,00% 54-9 24-9 63-9 33-9 195 77,50% 54-8 24-8 63-10 33-10 198 77,00% 54-7 24-7 63-11 33-11 201 76,50% 54-6 24-6 64-0 34-0 204 76,00% 54-5 24-5 64-1 34-1 207 75,50% 54-4 24-4 64-2 34-2 210 75,00% 54-3 24-3 64-3 34-3 213 74,50% 54-2 24-2 64-4 34-4 216 74,00% 54-1 24-1 64-5 34-5 219 73,50% 54-0 24-0 64-6 34-6 222 73,00% 53-11 23-11 64-7 34-7 225 72,50% 53-10 23-10 64-8 34-8 228 72,50% 53-9 23-9 64-9 34-9 231 72,50% 53-8 23-8 64-10 34-10 234 72,50% 53-7 23-7 64-11 34-11 237 72,50% 53-6 23-6 65-0 35-0 240 72,50% Una vez pasados los dieciocho meses, los servidores judiciales podrán acogerse a una jubilación anticipada transitoria, la cual se regirá por las siguientes disposiciones:

Para efectos de la jubilación anticipada sin tener los años de servicio, se tomará la edad requerida de la tabla anterior, según la edad o años de servicio a la fecha de rige de la ley.

El cálculo de esta jubilación se hará multiplicando la pensión obtenida según la edad o años de servicio correspondiente a la fecha de rige de la ley de la tabla anterior, por el número de años servidos, y el producto se dividirá entre los años de servicio requeridos según la edad o años de servicio correspondiente a la fecha de rige de la ley; el resultado será el monto de la jubilación anticipada.

Para efectos de la jubilación anticipada sin tener la edad, se tomará los años de servicio requeridos de la tabla anterior, según la edad o años de servicio a la fecha de rige de la ley.

Para efectos de la edad mínima, se regirá por la siguiente tabla:

Edad a la fecha de rige de la ley Años de servicio a la fecha de rige de la ley Mínimo de edad Años-meses Años-meses Hombres Mujeres 58-5 28-5 57-1 55-1 58-4 28-4 57-2 55-2 58-3 28-3 57-3 55-3 58-2 28-2 57-4 55-4 58-1 28-1 57-5 55-5 58-0 28-0 57-6 55-6 57-11 27-11 57-7 55-7 57-10 27-10 57-8 55-8 57-9 27-9 57-9 55-9 57-8 27-8 57-10 55-10 57-7 27-7 57-11 55-11 57-6 27-6 58-0 56-0 57-5 27-5 58-1 56-1 57-4 27-4 58-2 56-2 57-3 27-3 58-3 56-3 57-2 27-2 58-4 56-4 57-1 27-1 58-5 56-5 57-0 27-0 58-6 56-6 56-11 26-11 58-7 56-7 56-10 26-10 58-8 56-8 56-9 26-9 58-9 56-9 56-8 26-8 58-10 56-10 56-7 26-7 58-11 56-11 56-6 26-6 59-0 57-0 56-5 26-5 59-1 57-1 56-4 26-4 59-2 57-2 56-3 26-3 59-3 57-3 56-2 26-2 59-4 57-4 56-1 26-1 59-5 57-5 56-0 26-0 59-6 57-6 55-11 25-11 59-7 57-7 55-10 25-10 59-8 57-8 55-9 25-9 59-9 57-9 55-8 25-8 59-10 57-10 55-7 25-7 59-11 57-11 55-6 25-6 60-0 58-0 55-5 25-5 60-1 58-1 55-4 25-4 60-2 58-2 55-3 25-3 60-3 58-3 55-2 25-2 60-4 58-4 55-1 25-1 60-5 58-5 55-0 25-0 60-6 58-6 54-11 24-11 60-7 58-7 54-10 24-10 60-8 58-8 54-9 24-9 60-9 58-9 54-8 24-8 60-10 58-10 54-7 24-7 60-11 58-11 54-6 24-6 61-0 59-0 54-5 24-5 61-1 59-1 54-4 24-4 61-2 59-2 54-3 24-3 61-3 59-3 54-2 24-2 61-4 59-4 54-1 24-1 61-5 59-5 54-0 24-0 61-6 59-6 53-11 23-11 61-7 59-7 53-10 23-10 61-8 59-8 53-9 23-9 61-9 59-9 53-8 23-8 61-10 59-10 53-7 23-7 61-11 59-11 53-6 23-6 62-0 60-0 El cálculo de esta jubilación se hará multiplicando la pensión obtenida según la edad o años de servicio correspondiente a la fecha de rige de la ley de la tabla tras anterior, por la edad; y el producto se dividirá entre la edad requerida según la edad o años de servicio correspondiente a la fecha de rige de la ley; el resultado será el monto de la jubilación anticipada.

Estas pensiones estarán sujetas al tope previsto en el artículo 225 de la ley.” En cuanto a dicho texto, la Corte Plena indica mediante oficio SP-118-17 el acuerdo adoptado en sesión n°09-17 del 24 de abril del 2017 que: “el plazo de los dieciocho meses posteriores a la publicación de la Ley no tiene bases técnicas”. Posteriormente, por medio de la aprobación de mociones de fondo, el nuevo texto aprobado en Primer Debate, y luego aprobado en Segundo Debate, la disposición Transitoria VI señala lo siguiente:

“TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.° 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.” VI.- En general: Sobre el derecho de pensión y la jubilación como derechos fundamentales, y las posibles limitaciones.- Esta acción de inconstitucionalidad, al igual que otras anteriores, tiene en el trasfondo los derechos económicos, sociales y culturales, derechos humanos muy concretos, que se constituyen en temas que deben ser cuidadosamente calibradas por este Tribunal Constitucional, especialmente, al tratarse de los derechos que acompañan a las personas adultas mayores en momentos muy importantes de su vida. Precisamente, cuando empieza a tomar vigor la doctrina de los derechos prestacionales del Estado, se suele citar lo que ya desde 1930 se impulsaba por parte de varios países, al buscar mayor protección para las personas trabajadoras y un mayor papel del Estado en garantizar ciertos derechos sociales, como lo son la seguridad social, la salud y vivienda. Esta Sala ha tenido oportunidad de examinar temas de pensiones en otras ocasiones. A partir de lo ha señalado en resoluciones anteriores (n°2018-5758 y 2021-11957), se resumen los siguientes COROLARIOS:

-Los artículos 50, 56 y 74 de la Constitución Política configuran el modelo de Estado social y democrático de Derecho. Como parte de este mismo modelo el principio de solidaridad social actúa como un eje orientador de política interna del Estado, porque el Estado Social de Derecho “entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables”. En forma consecuente y con sustento en el Estado Social de Derecho, nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de los trabajadores, como es el caso del derecho de jubilación. (ver sentencias n° 2004-9255 de las 16:03 horas del 25 de agosto del 2004, n°2005-13205 de las 15:13 horas del 27 de septiembre del 2005, n°2018-19030 del 14 de noviembre de 2020).

-El modelo de Estado Social de Derecho y el concepto de seguridad social que adopta nuestra Constitución Política, incluye el derecho en favor de las personas trabajadoras de obtener una jubilación luego del cumplimiento de determinadas condiciones normativamente establecidas. Es ésta una de las formas de expresión del derecho fundamental a la seguridad social recogido en nuestra normativa constitucional, al que se suman el seguro de salud, los distintos tipos de jubilaciones contributivas, así como las no contributivas, entre otros.

-La jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo determinado, y cuyo fin es garantizar una vida digna para la persona, luego de que finalice su etapa como trabajador.

-El derecho a la pensión debe ser catalogado como un derecho fundamental, así la Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución. Además, de los artículos 25, 28, 29 y 30 del Convenio n°102 de la OIT, según los cuales:

" Artículo 25 Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte" " Artículo 28 La prestación consistirá en un pago periódico, calculado en la forma siguiente... " " Artículo 29 1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

• a)a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia...

"2. Cuando la concesión de la prestación mencionada en el párrafo 1 esté condicionada al cumplimiento de un período mínimo de cotización o de empleo, deberá garantizarse una prestación reducida por lo menos:

"a) A las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas un período de calificación de quince años de cotización o de empleo... " " Artículo 30 "Las prestaciones mencionadas en los artículos 28 y 29 deberán concederse durante todo el transcurso de la contingencia" -Otros textos internacionales que reconocen el derecho a la jubilación son por ejemplo: el art.16 Declaración Americana de los Derechos y Deberes del Hombre; los artículos 22 y 25 Declaración Universal de Derechos Humanos; el art. 31 Carta Internacional Americana de Garantías Sociales; 5o Convención sobre Igualdad de Trato en Materia de Seguridad Social, No. 118 OIT, o, en general, el Derecho a la Seguridad Social, dentro de la cual se tiene universalmente por comprendida la jubilación, por ejemplo el art.11 Declaración Americana de los Derechos y Deberes del Hombre; y 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales.

-La pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen, no así el derecho concreto a la jubilación, que se adquiere cuando el interesado cumple con todos los presupuestos establecidos en la ley.

-Al igual que cualquier otro derecho fundamental, el derecho a la pensión no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no impidan su ejercicio (o afecten su contenido esencial). El derecho de jubilación, como cualquier otro derecho está sujeto a condiciones y limitaciones pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten además razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin. Esto no es otra cosa que expresión de un conocido principio del Derecho de los Derechos Humanos, que puede denominarse de proporcionalidad y que se recoge en general como condición sine qua non de las limitaciones y restricciones a tales derechos autorizados excepcionalmente por los propios textos que los consagran (ver resoluciones n°2018-19030, n°2379-96, n°1147-90).

-El derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación. Claro está, tales limitaciones deben ser establecidas mediante una ley formal, deben ser razonables y no pueden impedir su ejercicio (o afecten su contenido esencial).

-Además, si las modificaciones a las condiciones de pensión implican una regresión, esta Sala ha indicado que dicha medida requiere de previo un estudio técnico. Así se estableció: “en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas…” (ver resolución n°2021-11957).

Establecido lo anterior, se procede a continuación a revisar los alegatos concretos admitidos, para determinar si las autoridades estatales han excedido los parámetros anteriores, todo ello según los temas y la argumentación concreta ofrecida por los diversos accionantes.

VII.- Sobre el examen de los ALEGATOS de inconstitucionalidad.- Conforme se indicó, esta acción y la acumulada, han sido admitidas para el examen del Transitorio VI de la Ley de Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, No. 9544, por la presunta violación a los artículos 11, 18, 27, 28, 34, 40, 41, 45, 51, 65, 73, 74, 121, 152, 154, 156, 177, 188, 189 y 190 de la Constitución Política, Convenios 102, 118, 128 y 157 de la OIT, y los principios democrático, solidaridad, seguridad jurídica, buena fe, confianza legítima, transparencia, intangibilidad relativa del patrimonio, no confiscatoriedad y respeto a los derechos adquiridos y situaciones jurídicas consolidadas, artículos 14 del Pacto Internacional de Derechos Civiles y Político y 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales. Además, sobre la violación al principio de progresividad, al derecho a una pensión digna, proporcional y razonable y al principio de igualdad, esto en caso de contar con la prueba necesaria. Argumentos todos que se sintetizaron supra. Ahora bien, como el alegato de inconstitucionalidad de falta de criterio técnico frente a medidas regresivas para el derecho a la pensión y la jubilación, es un alegato de procedimiento, se examinará éste en primer lugar.

VIII.- SOBRE EL FONDO: DE LA CONSTITUCIONALIDAD DEL TRANSITORIO VI DE LA LEY DE REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL, LEY N.° 9544. REDACTA EL MAGISTRADO CASTILLO VÍQUEZ.

Los accionantes indican que no existe ningún fundamento jurídico que respalde el plazo de dieciocho meses otorgado como Transitorio para la aplicación de la nueva reforma, el cual consideran resulta irracional y antojadizo. Incluso indican que, el anterior presidente de la Junta Administradora del Fondo, señor Carlos Montero, ante una comparecencia en la Corte Plena del Poder Judicial (sesión n.°08-2021, del 22 de febrero de 2021, artículo XVIII) manifestó que el Fondo se encontraba en condiciones de asumir las jubilaciones con las condiciones anteriores a la reforma, de personas que al momento de la entrada en vigencia del Transitorio VI, contaban con 20 años o más de servicio en el Poder Judicial. Siendo además que, en los casos en que se restringe o limita un derecho fundamental -como es este caso-, la carga de la prueba no la tiene el perjudicado con la restricción o limitación, sino la Administración, en este caso, el Estado legislador, el cual no contó con criterio técnico al respecto. La Procuraduría General de la República (PGR) indica que, si el legislador así lo estima conveniente y decide regularlo por derecho transitorio, es suficiente el plazo de 18 meses para que la modificación de las condiciones específicas, las cuales no afecten al administrado que cumpla los requisitos dentro de ese lapso (ver resolución de la Sala Constitucional n.°1992-846 de las 13:30 horas del 27 de marzo de 1992). Considera que, si bien en los regímenes contributivos de pensión la cotización origina un derecho de pertenencia, ello no hace inmodificable las reglas del sistema (ver resolución de la Sala Constitucional n.°2018-19030 y n.°2021-11957). Además, el solo hecho de existir un transitorio lleva a la conclusión de que los cambios en el régimen no fueron intempestivos, repentinos, ni variaron drásticamente las condiciones jubilatorias de los accionantes, por lo que no comparten las razones de inconstitucionalidad aducidas en esta acción, y así sugiere declarar sin lugar la acción. Por su parte, el Presidente de la Asamblea Legislativa manifiesta que la Asamblea en la tramitación y formulación de esta ley siempre respetó los principios de razonabilidad, racionalidad, proporcionalidad y tomó sus decisiones sobre una base de una amplia discusión, con informes técnicos y participación de los sectores involucrados. En concreto, sobre el transitorio, se informa que el plazo de 18 meses es razonable ya que no se trata de un plazo excesivamente corto, ni excesivamente largo; además que, la fijación de este plazo responde a la atribución que la Asamblea Legislativa en el ejercicio de la función de dictar leyes en sentido formal y material, donde goza de una amplia libertad de conformación. En criterio de la Corte Suprema de Justicia, en las tres ocasiones en que la Corte fue consultada se emitió criterio negativo y se opuso al proyecto de ley consultado, debido a que incide en la organización y funcionamiento del Poder Judicial. En concreto sobre el plazo de 18 meses del transitorio impugnado, consideró que no consta en acuerdos de Corte Plena o del Consejo Superior que el Poder Ejecutivo o Legislativo hayan realizado los estudios técnicos para definir ese rango, lo que podría resultar contradictorio con lo señalado por la Sala Constitucional en reiterados votos (la sentencia n.°2017-11714), que señaló como un requisito fundamental para poder realizar variaciones en los regímenes de jubilaciones y pensiones, que estos deben contar con los criterios técnicos sobre el impacto de esas modificaciones legales, de lo contrario se podría vulnerar el numeral 73 de nuestra Constitución Política. Agrega, además, que el personal de la institución ha sufrido la aplicación de una disposición transitoria muy severa y nunca antes aplicada a ningún grupo en materia jubilatoria, lo que ha causado un desestimulo para continuar laborando en la institución. Con ello se ha dado una constante fuga de talento, ya que se han recibido varias renuncias de personas servidoras judiciales que prefirieron continuar su carrera en otros ámbitos. Asimismo, servidores judiciales han requerido intervención médica dado el impacto de esta reforma y su transitorio en su vida y en la vida de sus familiares. Consideran que debió haberse resguardado su derecho, con un transitorio razonable, justo, sustentado en criterios técnicos y objetivos.

Es criterio de la mayoría de esta Sala que la acción incoada debe ser declarada sin lugar, con fundamento en las razones que se desarrollarán a continuación. Ahora bien, para el debido examen y resolución de esta acción, en un primer momento se expondrán una serie de consideraciones introductorias (apartado A) que necesariamente han de tenerse en cuenta, para el adecuado abordaje de los temas planteados en este proceso de control de constitucionalidad. Luego, en el apartado B, se analizará propiamente el plazo de 18 meses a la luz de la jurisprudencia de la Sala Constitucional y del informe técnico elaborado por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (del 4 de julio de 2017, denominado Producto 6 “Recopilación e informe final: conclusiones y recomendaciones”). También se hará una ineludible referencia a cuál era la situación del Régimen de Pensiones y Jubilaciones del Poder Judicial antes de su reforma mediante Ley n.°9544, cuál es su actual situación financiera y cuáles serían las consecuencias de acoger la presente acción (apartados C, D y E), por ser aspectos que imperiosamente deben ponderarse para la debida resolución de esta acción. Finalmente, en los siguientes apartados se resolverán los reproches concretos formulados por los accionantes.

• A)INTRODUCCIÓN.

Para la mayoría del Tribunal el actuar de la Asamblea Legislativa está basado en su jurisprudencia y en un estudio técnico, por lo que su actuación no ha sido ni arbitraria ni carente de sentido. Todo lo contrario, ha contribuido a darle sostenibilidad a un régimen especial, tal y como se explicará más adelante.

Hay un fenómeno a nivel mundial que está impactando los regímenes de jubilaciones y pensiones. Se trata del envejecimiento de la población, lo que tiene efectos importantes, pues, por un lado, las personas adultas mayores son más y viven más y, por el otro, la tasa de la población económicamente activa no crece al ritmo que lo venía haciendo en el pasado. Al respecto, en el informe de las Naciones Unidas -Informe Social Mundial 2023- sobre el tema encontramos los siguientes datos:

“En 2021, 761 millones de personas en todo el mundo tenían 65 años o más, cifra que aumentará a 1600 millones en 2050. El número de personas de 80 años o más está creciendo aún más rápido.

Las personas viven más tiempo gracias a las mejoras en la salud y las terapias médicas, un mayor acceso a la educación y la reducción de la fertilidad.

En todo el mundo, un niño nacido en 2021 puede esperar vivir, de media, hasta los 71 años, y las mujeres vivirán más que los hombres. Esto supone casi 25 años más que un bebé nacido en 1950.

El norte de África, Asia occidental y el África subsahariana están en vías de experimentar el crecimiento más rápido del número de personas mayores en los próximos 30 años. En la actualidad, Europa y Norteamérica juntas, tienen la mayor proporción de esta población”.

No hay duda alguna que este fenómeno global refleja una mejora general de la salud de las personas. Empero, también conlleva una serie de retos adicionales.

Este hecho tiene un impacto importante en los regímenes de jubilaciones y pensiones, en especial en los de reparto, ya que cada vez son menos los trabajadores que aportan y más los jubilados y pensionados que requieren los pagos respectivos. En el informe ut supra se establece lo siguiente:

“Uno de los principales retos es mantener la sostenibilidad fiscal de los sistemas públicos de pensiones, garantizando al mismo tiempo la seguridad de los ingresos de todas las personas mayores, incluidos los trabajadores del sector informal.” Lo cierto del caso es que se vive un proceso acelerado de envejecimiento de la población; se ha invertido la pirámide poblacional y, por consiguiente, se hace necesario introducir en los regímenes de jubilaciones y pensiones cambios importantes, con el fin de garantizar su sostenibilidad y equidad. Cuando son pocos los jubilados y los pensionados y muchos los trabajadores activos, el sistema soporta que los beneficios jubilatorios y pensionales sean generosos en el corto y aun en el mediano plazo; sin embargo, no es posible sostener esta situación cuando se da la situación inversa. Es por ello, que, en todas partes del mundo, asistimos al fenómeno de recortes de los beneficios jubilatorios y pensionales -tales como: aumentar los aportes, edad de retiro, recorte en el cálculo de jubilación o pensión, etc.-. Esta situación de cambio en los regímenes de jubilaciones y pensiones no es una ocurrencia del legislador o de quienes gobiernan o administran un régimen, es una necesidad que impone una realidad, en la que los estudios actuariales comprueban que los ajuste son necesarios, justos y lógicos, si es que se quiere garantizar a las actuales y futuras generaciones el derecho fundamental a la jubilación o la pensión. Actuar en sentido contrario, o no hacer nada, significa condenar a miles de adultos mayores en un futuro no muy lejano a vivir en la indigencia, de ahí que el sentido de responsabilidad, oportunidad y coherencia impone al legislador y la administración pública actuar de manera oportuna para garantizar la sostenibilidad financiera de los regímenes de jubilaciones y pensiones.

En esta cuestión no hay que perder de vista que la satisfacción de los intereses generales obliga al legislador y los administradores a tener siempre como norte esos intereses, y no los intereses particulares o de grupos. En los regímenes de jubilaciones y pensiones la sostenibilidad financiera del régimen representa el interés general, frente al cual no es posible alegar la satisfacción de intereses particulares, cuando ello conlleva la afectación del primero. Quien no tiene claro esta máxima, actúa en contra de reglas elementales de justicia, de lógica, de la ciencia y técnica y de oportunidad, lo que no es admisible en un Estado social y democrático de derecho. La satisfacción de los intereses del mayor número siempre debe estar por encima de los intereses individuales o de grupo.

Una tercera cuestión de este planteamiento general atañe al tema de la discrecionalidad legislativa. Ha sido tesis reiterada de este Tribunal que el legislador goza de un amplio margen de discrecionalidad cuando ejerce la potestad de legislar. Una de las razones de esta postura -no la única-, es que él está dotado de una legitimad democrática y, por ende, llamando a escoger entre varias alternativas posibles el contenido de la ley con el fin de dar una solución efectiva a un problema o crear una institución que venga a dar bienestar a la población. Ahora bien, el hecho de que este Tribunal haya sostenido que en la materia de jubilaciones y pensiones el legislador requiere de estudios técnicos, no conlleva una absoluta subordinación a estos, pues bien puede este, adoptando como referencia los datos que arrojan esos estudios dar soluciones que encuadren dentro de lo razonable. En esta dirección, no es posible asimilar el acto legislativo al administrativo, donde es claro que el margen de discrecionalidad de la administración pública es mucho menor. La discrecionalidad legislativa implica que el legislador tiene un amplio margen para definir el contenido y la oportunidad de la ley. El acto legislativo expresa o concretiza la soberanía del Parlamento, en esta dirección no se puede perder de vista lo que estatuye el artículo 105 constitucional, cuando afirma que la potestad de legislar reside en el pueblo, el cual la delega en la Asamblea Legislativa por medio del sufragio. Tal potestad no está sujeta a limitaciones mediante convenio ni contrato, directa o indirectamente, e incluso el Soberano la puede ejercer a través del referéndum con exclusión de ciertas materias. Lo anterior significa que la Asamblea Legislativa goza de independencia cuando ejerce la potestad de legislar, lo cual significa que el Derecho de la Constitución (valores, principios y normas) le otorgan una amplia discrecionalidad para disponer el contenido y la oportunidad de las leyes; se trata de un margen de apreciación, lo que la doctrina alemana ha denominado como “la libertad de configuración del legislador” (gesetzgeberichen Freiheit). Esta, pues, llamado el legislador, en ejercicio de la potestad de legislar, a satisfacer los intereses públicos, y para ello, puede innovar y actualizar el Derecho, así como dar soluciones oportunas y adecuadas a los problemas sociales. Ahora bien, esta discrecionalidad que goza el legislador no es ilimitada. En primer lugar, cuando el legislador legisla debe observar el Derecho de la Constitución y respetar los derechos fundamentales que se encuentran en ese derecho y en los instrumentos internacionales de derechos humanos vigentes en Costa Rica. En segundo término, debe observar las formas y procedimientos sustanciales que están presentes en el iter legislativo. En tercer lugar, el acto parlamentario, por más discrecional que sea, debe estar revestido de razonabilidad y proporcionalidad, de forma tal que el Derecho de la Constitución y el principio de la interdicción de la arbitrariedad, imposibilitan al legislador a dictar actos irracionales, arbitrarios o ilógicos. Ahora bien, no hay que perder de vista de que entre varias opciones razonables el Derecho de la Constitución le permite al legislador escoger una de estas; no necesariamente la que se considere mejor o la más óptima, pues determinar este extremo es un asunto que no es posible zanjar, salvo que se sustituya al legislador, lo cual implicaría vulnerar su independencia o peor aún, usurpar una atribución que constitucionalmente tiene asignada, lo que, a todas luces, no es acorde con el sistema democrático.

Finalmente, hay que tener presente que el derecho fundamental a la jubilación o la pensión es el derecho a recibir esta cuando se cumplen los requisitos que establece el ordenamiento jurídico, por lo que no forma parte de su contenido esencial el derecho a recibir unos determinados beneficios, pues estos están condicionados a la solvencia del régimen respectivo.

• B)SOBRE EL PLAZO DE 18 MESES PREVISTO EN EL TRANSITORIO VI DE LA LEY N.°9544.

1.- SOBRE LOS 18 MESES EN LA JURISPRUDENCIA DE LA SALA CONSTITUCIONAL.

Lo primero que debe destacarse es que la disposición normativa impugnada resulta plenamente compatible o congruente con la posición que esta Sala ha venido sosteniendo, de forma reiterada y consistente, en el sentido que un plazo de 18 meses resulta razonablemente suficiente para proteger a aquellas personas que aún no han cumplido los requisitos para adquirir el derecho a la pensión o jubilación –por lo que aún no se ha consolidado el derecho efectivo o concreto a gozar de la misma–, pero que estarían en una situación próxima o cercana a consolidar tal derecho, frente a eventuales modificaciones normativas en los requisitos o condiciones para acceder a la respectiva pensión o jubilación, en razón de cambios del derecho objetivo que regula el régimen en cuestión. Lo anterior, tomando en consideración el impacto que tal modificación podría tener para aquellas personas que les faltaban pocos meses para adquirir el derecho concreto a la pensión o jubilación.

Sobre este tema, se puede remitir -en primer lugar- al voto n.°846-92 de las 13:30 horas del 27 de marzo de 1992, en que esta Sala conoció de una consulta legislativa facultativa de constitucionalidad, referida al “Proyecto de Ley de Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, Otros Regímenes Especiales y Reforma a la Ley Número 7092 del 21 de abril de 1988 y sus Reformas Ley de Impuesto sobre la Renta” (expediente legislativo n.°11168). Oportunidad en que se resolvió:

“C) De igual forma consultan en caso de considerarse que antes de cumplir la edad y el período de cotización, sólo se tiene una expectativa de derecho y no un derecho adquirido, que suerte corre una disposición que legisle esta base, esto por contraposición al Convenio N 102 del O.l.T. que reconoce derechos desde otra perspectiva.

En este sentido, la Sala considera que carece de interés, toda vez que el proyecto - en sus artículos transitorios reconoce la conservación de la situación jubilatoria de los servidores que hubieren cumplido los requisitos para gozar del beneficio, y además lo extiende a los que pertenezcan o hayan pertenecido a los regímenes excluidos para adquirirlo, en un lapso de dieciocho meses, el cual parece razonablemente suficiente para garantizar cualesquiera eventuales derechos de buena fe.” Luego, en el voto n.°914-92 de las 14:40 horas del 8 de abril de 1992, este Tribunal retomó el tema y justificó su posición, en los siguientes términos:

“(...) En sentencia número 846-92 de las trece horas treinta minutos del veintisiete de marzo del año en curso, esta Sala, conociendo una consulta legislativa de constitucionalidad tuvo como razonable y suficiente para garantizar cualesquiera eventuales derechos adquiridos de buena fe, la norma contenida en el Proyecto de Ley de Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, contenido en el expediente legislativo número 11168, en cuanto fija en dieciocho meses el plazo previo para conservar la situación jurídica jubilatoria creada en un determinado sistema de pensiones. En el presente caso el recurrente pretende se le reconozca ese derecho de conservación en un plazo superior a los dos años. La Sala para pronunciarse conforme lo hizo en la citada consulta, tomó en consideración la necesidad de proteger derechos inminentes de las personas cubiertas por los diversos regímenes de pensión, pero reconoció que la simple pertenencia no crea una situación jurídica consolidada. No se está en el caso particular ante la situación ya señalada por la Sala, pues resta al recurrente un plazo suficiente para que pueda tomar las previsiones del caso y adaptar sus expectativas a la nueva situación, por lo que no resulta procedente su amparo y así debe declararse. El accionante -según manifiesta en el propio escrito de interposición-, no había cumplido todos los requisitos para que se acordara su jubilación en la fecha en que formuló su solicitud, sino que los cumpliría en mil novecientos noventa y tres de no ser por la modificación que sufrió el régimen de Invalidéz Vejez y Muerte. No tenía en el momento de hacer la solicitud más que una expectativa de adquirirlo y no un derecho consolidado como lo pretende, de tal forma que en esos términos, no puede hablarse de una violación a lo dispuesto en el artículo 34 Constitucional. Por otra parte, la decisión que tomó la Caja Costarricense de Seguro Social al modificar el régimen, estuvo basada en estudios actuariales y recomendaciones técnicas, de tal forma que no obedece a un capricho irracional ni a arbitrariedad alguna, por el contrario, según lo informa el representante de la recurrida, la decisión se tomó con el fin de salvar el régimen para poder cubrir a todos los pensionados en un futuro. Así las cosas, por no encontrarse violación constitucional alguna en el presente caso, conforme ya se dijo, procede declarar sin lugar el recurso.” (el destacado no corresponde al original).

En esta misma línea, se puede citar el voto n.°5476-93 de las 18:03 horas del 27 de octubre de 1993, en que se reitera:

“(...) Antes de discutir si el recurrente cumplía o no los requisitos que establecía la normativa que regulaba el Régimen de Comunicaciones, para el reconocimiento o goce efectivo del derecho al beneficio jubilatorio, es necesario reiterar dos conceptos fundamentales señalados por la Sala en el Voto N °1147-90 de las 16:00 horas del 21 de setiembre de 1990. El primero, consiste en la declaratoria que hace este Tribunal de la jubilación como derecho constitucional y fundamental de todo trabajador y que como tal debe ser reconocido a todo ser humano en condiciones de igualdad y sin discriminación alguna. El segundo, es un concepto que se desprende del anterior y que específicamente se menciona, tanto en el Considerando XI del Voto citado, como en el informe que remite a esta Sala el Ministro de Gobernación (ver folios 16 vuelto y 17 del recurso), al determinarse que el derecho a la jubilación se adquiere desde que se ingresa al respectivo régimen jubilatorio, al menos como derecho general de pertenencia al mismo, y se adquiere como derecho a la prestación actual del beneficio, desde el instante en que el interesado se encuentra en las condiciones de hecho previstas para recibirlo; sin que sea necesario, que se haya reclamado previamente u obtenido su reconocimiento. De conformidad con lo expuesto, es necesario señalar que el accionante adquirió el derecho a pertenecer al Régimen de Comunicaciones y el derecho a pensionarse algún día bajo ese régimen, si así lo desea, con el sólo ingreso; lo cual se operó mediante el artículo 108 de la Ley N 7015, que incluyó dentro del citado régimen a los trabajadores de la Administración Central del Ministerio de Gobernación. Dentro de este orden de ideas, es importante indicar que las condiciones específicas del régimen, entre las que se cuentan los requisitos de edad y tiempo laborado, si pueden variar en el futuro y podrán afectar a los beneficiarios que les falten más de 18 meses para cumplir con los requisitos de la normativa que se modifica...”.

Luego, se agregó que:

“El plazo de los 18 meses, durante el cual la modificación de las condiciones específicas del régimen no puede afectar al administrado, que proyectaba cumplir con los requisitos para pensionarse durante ese plazo, ha sido reiterado por la Sala en varios de sus pronunciamientos, con el objeto de proteger al beneficiario de un determinado régimen de pensión, de cambios repentinos en los requisitos específicos necesarios para obtener el reconocimiento concreto del beneficio jubilatorio; cambios que pueden agravar las condiciones para obtener la pensión, cuando le faltaban al interesado pocos meses para adquirir el derecho concreto al beneficio, con base en la norma modificada.” Por su parte, en el voto n.°06491-98 de las 9:45 horas del 10 de setiembre de 1998, se sistematizó la posición de esta Sala de la siguiente manera:

“V.- A) SOBRE LA MODIFICACION DE LA EDAD Y EL TIEMPO DE SERVICIO PARA JUBILARSE: Al tratar el tema de los derechos adquiridos en materia de pensiones, la Sala ha insistido en anteriores pronunciamientos en una diferencia medular entre el derecho de pertenencia al régimen y el derecho concreto a disfrutar de la pensión. Sobre estos dos matices del derecho adquirido a la jubilación señaló la Sala:

"En este sentido, es preciso observar que ese derecho deja de ser una simple expectativa y se adquiere desde que se ingresa al régimen jubilatorio, al menos como derecho general de pertenencia al mismo, y desde el instante en que el beneficiario se encuentra en las condiciones de hecho previstas para recibir el beneficio, como derecho a la prestación actual, sin que sea necesario que la haya reclamado, ni mucho menos declarado el reconocimiento o comenzado a percibirla... de la misma manera que el derecho a la herencia se adquiere en el momento de la muerte del causante, no en el de la apertura del juicio sucesorio, ni, mucho menos, en el de la adjudicación del derecho hereditario o de la entrega de los bienes al heredero." (sentencia Nº1147-90 de las 16:00 horas del 21 de setiembre de 1990).

VI.- En el primero de los casos, el derecho de pertenencia a un régimen jubilatorio guarda un mayor grado de abstracción y consiste, en esencia, en el derecho a que permanezca el régimen de pensiones propio de la institución en que se labora, así como sus elementos o condiciones definitorias. El derecho a pertenecer al régimen significa a no ser excluido, a que se mantengan sus parámetros generales, como podría ser que la contribución sea tripartita —condición, que, por cierto, en proporciones similares es por sí misma un derecho constitucional, sin perjuicio de que la contribución estatal sea igual en todos los regímenes—. Por sus características, este derecho se adquiere por el solo ingreso a él, sin embargo, como ya se dijo, sus consecuencias son mucho más restringidas que las que se expondrán para el caso del derecho concreto a la pensión.

VII.- El derecho concreto a gozar de la jubilación es aquél que tradicionalmente se ha utilizado como ejemplo para explicar el concepto de derecho adquirido. En esos mismos términos siempre se consideró que nacía en el momento en que el trabajador cumplía los requisitos exigidos por la ley vigente en ese momento para acceder al beneficio jubilatorio. Consecuencia de este razonamiento y de la diferencia de grado que se ha hecho es la indicada en la resolución número 6124-93 de las 14:30 horas del 23 de noviembre de 1993:

"En cuanto al goce efectivo del mismo, es un derecho que no puede limitarse, condicionarse o suprimirse en forma irracional en modo alguno, cuando se ha adquirido el derecho como tal, constituyéndose así en un derecho absoluto de disfrute. Sin embargo, no sucede del mismo modo con la expectativa de los trabajadores que cotizan para un régimen determinado, de manera que es hasta que se cumple con todos los presupuestos de ley -edad, años de pagar las cuotas, monto, etc.- que se obtiene dicho derecho.

Así, la pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen, pero el derecho concreto a la jubilación se adquiere cuando el interesado cumple con todos los presupuestos establecidos por ley, y no antes, como lo reclaman los accionantes, al considerar que la modificación de las condiciones para obtener este derecho es inconstitucional. Los mismos ostentan un derecho a la pertenencia de un régimen de pensiones, que en este caso es el régimen de Hacienda, ya que lo que la normativa impugnada -Ley Marco de Pensiones, número 7302- lo que hizo fue unificar los diferentes regímenes existentes y crear un "marco común", sin alterar en lo más mínimo el régimen de pertenencia de pensión de los empleados públicos. En efecto, es reconocido que tales regímenes están regulados mediante ley, la cual puede ser modificada o derogada en virtud de otra ley, y pretender que los presupuestos no pueden ser modificados nunca implicaría crear una limitación a cada régimen de pensiones y jubilaciones ya existente, que tiene rango constitucional en cuanto a su creación en general, pero no en cuanto a las especificaciones en particular. (En este mismo sentido, ver los pronunciamientos número 1341-93, de las 10:30 horas del 29 de marzo de 1993 y 3063-95 de las 15:30 horas del 13 de junio de 1995).

VIII.- Este concepto se ha visto ampliado posteriormente a raíz de decisiones legislativas y de este Tribunal, en las que se reconoció un tiempo prudencial —dieciocho meses— anterior al cumplimiento de los requisitos para adquirir el derecho, pues se trata de una persona muy cercana a la fecha de jubilación, quien no sólo tiene una expectativa, sino que adopta medidas irreversibles para prepararse para su cambio de estado.” (el destacado no corresponde al original) Posición confirmada por este Tribunal en múltiples votos, a saber: n.°1633-93 de las 14:33 horas del 13 de abril de 1993; n.°2765-93 de las 15:09 horas del 15 de junio de 1993; n.°3933-93 de las 15:21 horas del 12 de agosto de 1993; n.°0846-94 de las 17:18 horas del 9 de febrero de 1994; n.°1060-94 de las 15:42 horas del 22 de febrero de 1994; n.°1805-94 de las 11:03 horas del 15 de abril de 1994; n.°1879-94 de las 17:30 horas del 20 de abril de 1994; n.°0337-96 de las 9:51 horas del 19 de enero de 1996; n.°4682-96 de las 11:15 horas del 6 de setiembre de 1996; n.°2617-97 de las 15:54 horas del 14 de mayo de 1997; n.°6097-98 de las 15:33 horas del 26 de agosto de 1998; n.°1999-04808 de las 14:30 horas del 22 de junio de 1999; n.°2000-00331 de las 17:54 horas del 11 de enero del 2000; n.°2014-003551 de las 9:05 horas del 14 de marzo de 2014; n.°2014-12606 de las 9:05 horas del 1 de agosto de 2014; y n.°2015-1214 de las 14:45 horas del 27 de enero de 2015.

Criterio que fue reiterado una vez más por la mayoría de este Tribunal, justamente al conocer de la norma que se impugna en la presente acción (transitorio VI de la Ley n.°9544). Así lo hizo en el voto n.°2018-5758 de las 15:40 horas del 12 de abril de 2018, al conocer de la consulta legislativa facultativa de constitucionalidad que se tramitó respecto del entonces proyecto de ley n.°19.222, de reforma al régimen de Jubilación y Pensiones del Poder Judicial (expediente n.°17-017148-0007-CO), así como en la sentencia n.°2021-11957 de las 17:00 horas del 25 de mayo de 2021, emitida en la acción de inconstitucionalidad n.°18-007819-0007-CO. En este último caso, se resolvió:

“LXVII.- Redacta el Magistrado Castillo Víquez. Sobre el reclamo contra el Transitorio VI de la Ley número 9544. Según se explicó supra, la otra norma transitoria de la Ley número 9544 que los accionantes impugnan es el artículo Transitorio VI, que establece:

“TRANSITORIO VI.- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley No. 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto”.

Los accionantes argumentan que se trata de una disposición desproporcionada y arbitraria, y que los 18 meses fijados son un lapso irrazonable que en algún momento estableció la Sala y que ahora se adoptó por el legislador sin contar con estudio técnico que lo justifique. Estiman que se lesionan derechos consolidados y derechos adquiridos, y sostienen que se vulnera la seguridad jurídica y se quebranta la confianza en el sistema; que lesiona las expectativas de las personas y el proyecto de vida de los que estaban cerca de jubilarse y lesiona la solidaridad que es un principio relacionado con la seguridad social. Estiman que además se contradice con el artículo 224 de la misma ley pues en éste se reconoce un derecho adquirido a los servidores con 20 o más años de servicio en el Poder Judicial, en tanto que en este transitorio no se reconoce ese lapso a los trabajadores con más de 20 años de servicio y en su lugar, se los otorga únicamente a quienes cuentan con 28 años y 6 meses al momento de entrar en vigencia la ley. La Procuraduría señaló que el derecho a disfrutar la jubilación se adquiere cuando se cumplen todos los requisitos previstos en la normativa y antes de eso lo que hay es una simple expectativa de derecho que no es asimilable a una situación jurídica consolidada. Se afirma que la Sala ha dicho que es suficiente un plazo de 18 meses para que la modificación de las condiciones no afecte al administrado que cumpla con los requisitos dentro de ese plazo y el mal llamado derecho de pertenencia no pasa de ser una simple expectativa que exclusivamente a quienes lleguen a alcanzar los requisitos en los 18 meses. El Transitorio VI implica que los cambios no fueron intempestivos ni repentinos. La Asamblea Legislativa indica que, tratándose de la expectativa de derechos referentes a régimen de pensiones o jubilaciones, deben atenerse a la legislación vigente y precedentes constitucionales, entendiendo que la modificación a un régimen específico es factible y no implica, en sí misma, una vulneración constitucional. El plazo otorgado atiende a los parámetros requeridos para garantizar los eventuales derechos de las personas que cumplan con los requisitos dispuestos en la normativa y que con ello no se realice una modificación súbita a la norma. La Corte Suprema de Justicia expuso que en sus respuestas a la Asamblea siempre manifestó la necesidad de una gradualidad en la implementación del cambio normativo para respetar las expectativas válidas de las personas con más años de servicio.

LXVIII.- Continúa redactando el Magistrado Castillo Víquez. La cuestión de la posible inconstitucionalidad del transitorio VI de la Ley 9544 impugnado también fue analizada como parte de la respuesta dada a la Asamblea Legislativa con ocasión de la consulta realizada al entonces proyecto de ley número 19922 de reforma del régimen de Jubilaciones y Pensiones del Poder Judicial. En la sentencia número 2018-5758 tantas veces citada, la Sala dijo:

“XVII.- Sobre los cambios en los requerimientos para obtener el derecho de pensión. Los(as) consultantes consideran que el artículo 224 del proyecto de ley lesiona los principios de proporcionalidad y razonabilidad por cuanto se aumenta la edad de retiro y el número de años que el funcionario debe laborar, pero se reduce el porcentaje de dinero que recibirá por concepto de pensión con respecto al salario que devengaba. Asimismo, cuestionan el transitorio VI del proyecto, que dispone que solamente aquellas personas que estén a 18 meses de cumplir los requisitos para adquirir el derecho de pensión, podrán hacerlo al amparo de lo establecido por la Ley N° 7333. Las normas cuestionadas disponen lo siguiente:" Artículo 224- Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años.

TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.° 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.

Previo a entrar a analizar el fondo del alegato planteado, hay que tener presente que el derecho de jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo establecido, y cuyo fin es garantizar una vida digna a la persona luego de que por razones de edad o invalidez se retira del mercado de trabajo. Dicho derecho, que se deriva del numeral 73 constitucional, se obtiene a partir del momento en que la persona cumple con todos los requisitos establecidos por la legislación vigente, pues en ese momento se da la situación de hecho que prevé la norma para otorgarse el beneficio. Cabe destacar, que el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación, cuando se logre comprobar que existen ciertas situaciones que ponen en riesgo la sostenibilidad de un régimen y, por ende, atenten contra la naturaleza del sistema como tal. Sobre el particular, en el voto número 2379-96 de las 11:06 del 17 de mayo de 1996, se estableció lo siguiente: […]

Por otra parte, la Sala también ha sostenido que existe una diferencia sustancial entre el derecho de pertenencia a un determinado régimen de pensiones, y el derecho concreto a disfrutar de una pensión. Sobre el particular, en el voto número 98-6491 de las 9:45 del 10 de septiembre de 1998, se dispuso sobre el particular lo siguiente:

• A)SOBRE LA MODIFICACION DE LA EDAD Y EL TIEMPO DE SERVICIO PARA JUBILARSE: Al tratar el tema de los derechos adquiridos en materia de pensiones, la Sala ha insistido en anteriores pronunciamientos en una diferencia medular entre el derecho de pertenencia al régimen y el derecho concreto a disfrutar de la pensión. Sobre estos dos matices del derecho adquirido a la jubilación señaló la Sala:

"En este sentido, es preciso observar que ese derecho deja de ser una simple expectativa y se adquiere desde que se ingresa al régimen jubilatorio, al menos como derecho general de pertenencia al mismo, y desde el instante en que el beneficiario se encuentra en las condiciones de hecho previstas para recibir el beneficio, como derecho a la prestación actual, sin que sea necesario que la haya reclamado, ni mucho menos declarado el reconocimiento o comenzado a percibirla... de la misma manera que el derecho a la herencia se adquiere en el momento de la muerte del causante, no en el de la apertura del juicio sucesorio, ni, mucho menos, en el de la adjudicación del derecho hereditario o de la entrega de los bienes al heredero." (sentencia Nº1147-90 de las 16:00 horas del 21 de setiembre de 1990).

I.- En el primero de los casos, el derecho de pertenencia a un régimen jubilatorio guarda un mayor grado de abstracción y consiste, en esencia, en el derecho a que permanezca el régimen de pensiones propio de la institución en que se labora, así como sus elementos o condiciones definitorias. El derecho a pertenecer al régimen significa a no ser excluido, a que se mantengan sus parámetros generales, como podría ser que la contribución sea tripartita —condición, que, por cierto, en proporciones similares es por sí misma un derecho constitucional, sin perjuicio de que la contribución estatal sea igual en todos los regímenes—. Por sus características, este derecho se adquiere por el solo ingreso a él, sin embargo, como ya se dijo, sus consecuencias son mucho más restringidas que las que se expondrán para el caso del derecho concreto a la pensión.

II.El derecho concreto a gozar de la jubilación es aquél que tradicionalmente se ha utilizado como ejemplo para explicar el concepto de derecho adquirido. En esos mismos términos siempre se consideró que nacía en el momento en que el trabajador cumplía los requisitos exigidos por la ley vigente en ese momento para acceder al beneficio jubilatorio. Consecuencia de este razonamiento y de la diferencia de grado que se ha hecho es la indicada en la resolución número 6124-93 de las 14:30 horas del 23 de noviembre de 1993:

"En cuanto al goce efectivo del mismo, es un derecho que no puede limitarse, condicionarse o suprimirse en forma irracional en modo alguno, cuando se ha adquirido el derecho como tal, constituyéndose así en un derecho absoluto de disfrute. Sin embargo, no sucede del mismo modo con la expectativa de los trabajadores que cotizan para un régimen determinado, de manera que es hasta que se cumple con todos los presupuestos de ley -edad, años de pagar las cuotas, monto, etc.- que se obtiene dicho derecho.

Así, la pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen, pero el derecho concreto a la jubilación se adquiere cuando el interesado cumple con todos los presupuestos establecidos por ley, y no antes, como lo reclaman los accionantes, al considerar que la modificación de las condiciones para obtener este derecho es inconstitucional. Los mismos ostentan un derecho a la pertenencia de un régimen de pensiones, que en este caso es el régimen de Hacienda, ya que lo que la normativa impugnada -Ley Marco de Pensiones, número 7302- lo que hizo fue unificar los diferentes regímenes existentes y crear un "marco común", sin alterar en lo más mínimo el régimen de pertenencia de pensión de los empleados públicos. En efecto, es reconocido que tales regímenes están regulados mediante ley, la cual puede ser modificada o derogada en virtud de otra ley, y pretender que los presupuestos no pueden ser modificados nunca implicaría crear una limitación a cada régimen de pensiones y jubilaciones ya existente, que tiene rango constitucional en cuanto a su creación en general, pero no en cuanto a las especificaciones en particular. (En este mismo sentido, ver los pronunciamientos número 1341-93, de las 10:30 horas del 29 de marzo de 1993 y 3063-95 de las 15:30 horas del 13 de junio de 1995).

Ahora bien, de lo expuesto se desprende, con claridad, que el derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación. Ante dicho panorama, la Sala considera que las normas cuestionadas no resultan inconstitucionales, en el tanto su fin es, precisamente, garantizar la permanencia del Régimen de Pensiones y Jubilaciones del Poder Judicial, para lo cual se fijaron parámetros y requerimientos a partir de la opinión de expertos que fueron recibidos por la Comisión Especial que dictaminó el expediente legislativo número 19.922, así como de estudios de naturaleza técnica que constataron la existencia de una problemática que puede llegar a afectar la sostenibilidad del Régimen mencionado, y para lo cual emitieron una serie de recomendaciones. En ese sentido, al comprobar que la variación de requisitos dispuesta por el numeral 224 y el plazo fijado por el transitorio VI del proyecto de ley tienen como fin último garantizar el derecho de jubilación de los(as) servidores(as) judiciales, la Sala descarta el vicio alegado.” LXIX.- Continúa redactando el Magistrado Castillo Víquez. En la cita anterior, este Tribunal abordó precisamente el reclamo que ahora reiteran los accionantes en relación con la razonabilidad y proporcionalidad de la disposición transitoria VI en cuanto fijó en 18 meses el plazo para cumplir requisitos y jubilarse o pensionarse con el régimen derogado. La base del razonamiento en esa ocasión se apoyó en la diferencia entre el derecho al disfrute efectivo de la jubilación -que solamente se adquiere con el cumplimiento de los requisitos establecidos- y el derecho de pertenencia que tienen los participantes en el régimen que no han cumplido requisitos y que constituye solamente una expectativa respecto de las condiciones de disfrute establecidas. Por esto, los cambios que se realicen en la estructura del régimen pueden aplicarse a todos los que solo ostentan un derecho de pertenencia, siempre que tal decisión se justifique frente a la finalidad y objetivos del régimen y de las modificaciones planteadas, es decir, que se presente como razonable y proporcionada. Sobre este último aspecto se estima apropiado reforzar los argumentos dados por esta Sala en su momento, pues los accionantes insisten en atacar ese plazo de transición por entender que 18 meses es un lapso irrazonable, arbitrario e injusto con una cantidad de personas que por días o semanas quedaron por fuera de la posibilidad de jubilarse a pesar de tener una gran cantidad de años servidos o bien, la edad para el retiro.

En este contexto, la mayoría de la Sala, inicia acentuando el hecho de que la fijación del plazo de 18 meses como plazo de transición, encuentra su fundamento en la jurisprudencia específica de este Tribunal para el tema de los cambios en los regímenes previsionales, tal y como se ha sostenido -entre varias- en la sentencia número 1993-5476 de las 18:03 horas del 27 de octubre de 1993 que conoció el reclamo de una persona que alegaba derechos adquiridos para jubilarse con las reglas de un régimen derogado. En su decisión se explicó sobre el tema concreto:

“II. (…) Dentro de este orden de ideas, es importante indicar que las condiciones específicas del régimen, entre las que se cuentan los requisitos de edad y tiempo laborado, si pueden variar en el futuro y podrán afectar a los beneficiarios que les falten más de 18 meses para cumplir con los requisitos de la normativa que se modifica, pero su derecho a pertenecer al régimen y a jubilarse en las mismas condiciones generales del régimen, no puede ser modificado por haberse consolidado como derecho adquirido. El plazo de los 18 meses, durante el cual la modificación de las condiciones específicas del régimen no puede afectar al administrado, que proyectaba cumplir con los requisitos para pensionarse durante ese plazo, ha sido reiterado por la Sala en varios de sus pronunciamientos, con el objeto de proteger al beneficiario de un determinado régimen de pensión, de cambios repentinos en los requisitos específicos necesarios para obtener el reconocimiento concreto del beneficio jubilatorio; cambios que pueden agravar las condiciones para obtener la pensión, cuando le faltaban al interesado pocos meses para adquirir el derecho concreto al beneficio, con base en la norma modificada.” (el destacado no es del original) De tal manera, al disponer la aplicación del régimen anterior a quienes cumplieran los requisitos en un plazo de 18 meses, el legislador se ha guiado por la posición de este Tribunal en este tema específico del lapso adecuado para equilibrar la necesidad de reforma y actualización de regímenes de jubilaciones y pensiones, con el necesario resguardo de cierto grupo de cotizantes en frente “…de cambios repentinos en los requisitos específicos necesarios para obtener el reconocimiento concreto del beneficio jubilatorio; cambios que pueden agravar las condiciones para obtener la pensión, cuando le faltaban al interesado pocos meses para adquirir el derecho concreto al beneficio, con base en la norma modificada” según la propia expresión del Tribunal. Lo anterior cuenta en favor de la validez constitucional de la medida tomada por el legislador, por lo que una declaración de inconstitucionalidad en este caso, requiere de la aportación de elementos de juicio que logren demostrar la ausencia de proporcionalidad y razonabilidad de emplear el plazo de 18 meses fijado por la jurisprudencia constitucional a partir de la vigencia de la reforma, para la extensión del ámbito de cobertura del régimen previsional anterior.

En el caso concreto sin embargo, no logran los accionantes cumplir con el cometido anteriormente descrito y más bien las características de la reforma apuntan a sostener lo actuado por el legislador, pues en primer término, la Sala ha sopesado la magnitud de los cambios ocurridos en lo que se refiere a las condiciones de elegibilidad, para concluir que su variación no solo tiene un sustento técnico en los esquemas actuariales, tal y como se explicó al abordar dicha cuestión, sino que -adicionalmente- los cambios introducidos no representan -en términos generales- un cambio extremadamente brusco y amplio respecto a lo que se exigía anteriormente. Tómese como ejemplo el caso de una jubilación ordinaria de un cotizante que solo ha laborado en el Poder Judicial, donde se aprecia que para jubilarse ordinariamente con el nuevo régimen, el servidor que ingresó con una edad entre los 18 y los 30 años, deberá laborar 3 años más que con el sistema anterior, mientras que para una edad de ingreso por encima de 30 años, la obligada permanencia como trabajador activo se eleva 5 años respecto del sistema jubilatorio anterior. Parecida situación se aprecia para los casos generales de retiro anticipado, cuya comparación permite concluir que, en la gran mayoría de los casos, la obligación de permanencia como trabajador activo se eleva en 5 años respecto del sistema jubilatorio anterior; solo encuentra la Sala una excepción en el caso del retiro anticipado por años de servicio, en razón de que la normativa anterior no contenía una edad mínima para el retiro, mientras que ahora se exige una edad mínima de 60 años para mujeres y 62 años para hombres, caso en el cual, sin bien los cambios pueden sobrepasar los 7 años no es menos cierto que los límites mínimos (60 y 62 años para mujeres y varones respectivamente) no significan en sí mismo una exigencia excesiva en términos de dignidad humana y esfuerzo. En fin, de todos los datos anteriores el Tribunal entiende que el cambio operado en los requisitos de elegibilidad, no resultan desproporcionados como se plantea por parte de los accionantes y por ende no hacían constitucionalmente necesario un régimen de transición diferente del que fue elegido por el legislador.

Agréguese a lo anterior que contrario a lo sostenido en algunos de los escritos de impugnación, los estudios técnicos sí contemplaron la necesidad de un sistema de transición breve, en aras de la sostenibilidad de la reforma discutida. Al respecto, en las cuatro opciones desarrolladas por la autoridad técnica, y en particular en los escenarios IICE 3 e IICE 4, (de los cuales se tomaron las guías para el texto final de la reforma) se especifica que los cálculos de sostenibilidad incluyen el supuesto de que las modificaciones se aplicarán de forma general a todos los cotizantes, excluyendo únicamente a quienes tuvieran más de 28 años de servicio a la fecha de entrada en vigor del cambio. Esto puede comprobarse con las exposiciones y documentos aportados al expediente legislativo y visibles en los folios 2218 y 2230, de modo que la decisión legislativa final de reconocerle únicamente a los cotizantes con 28 años y medio de servicio la posibilidad de jubilarse bajo el régimen anterior, sí formó parte de los requerimientos técnicos necesarios que se tomaron en cuenta para diseñar las modificaciones que darían sustento financiero al régimen de Jubilaciones y Pensiones del Poder Judicial.

Asimismo, el plazo de 18 meses estuvo ampliamente apoyado por el criterio técnico, no sólo por razones de seguridad jurídica de acuerdo a la jurisprudencia constitucional, sino también por razones de solvencia actuarial. Así, en su comparecencia el Superintendente de Pensiones, Dr. Alvaro Ramos (ver folio 1691 y ss del expediente legislativo), se refirió a la necesidad de hacer una transición de 18 meses en respeto a la jurisprudencia constitucional (ver folio1711). En el mismo sentido, se manifestó la Procuraduría General de la República (folio 2115) y la Universidad de Costa Rica (folios 2264, 2265 y 2942 y ss), al señalar:

“Los últimos marcos que se recomiendan aquí, es el 3 y 4, contemplan exclusivamente lo que usted ha señalado de 18“Los últimos marcos que se recomiendan aquí, es el 3 y 4, contemplan exclusivamente lo que usted ha señalado de 18 meses” (Dr. Max Soto Jiménez) Básicamente los marcos específicamente del IICE, se pasó a tratar de modelar lo más cercano posible a dieciocho meses. En realidad, para serles sincero, a nivel de modelamiento va a ser dos años. O sea, los que tienen 28 años de antigüedad para arriba, el modelo matemático asumió que a ellos se les iba a respetar un transitorio, es decir, no se midió en forma completamente precisa pero eso es por el mismo modelamiento de las probabilidades de vida, se tienen por algo, no para cada medio año y hay razonamientos.

Si uno es teórico, puede dedicarse medio año a eso, pero digamos para contestarle se estimuló lo más cercano posible y la simulación asumió que todos los que tengan más de veintiocho de antigüedad, a ellos sí se les iba a respetar el derecho de mantenerse su pensión con el régimen vigente.

Es lo que usted ve ahí cuando dice “ participación con años de servicio, mayor o igual a veintiocho”. A nivel de paasarlo a reglamento, lo que recomendaría -y recomendamos nosotros-es votarlo a dieciocho meses, lo que la Sala Constitucional dictó.” (Dr. Ronald Cartín Carranza) Diputada Pisk: Nada más para estar clara. A pesar de esa ventana a los que tienen más de veintiocho años, ustedes recomiendan que esto entre en vigencia para todos. Independientemente de los años laborados, entra en vigencia a los dieciocho meses. ¿Es así? Perfecto Dr. Max Soto Jiménez: Los que se pensionan dentro de los dieciocho meses siguientes, mantengan el derecho de la ley vigente:” (…)

“lógicamente, un transitorio superior a los 18 meses afecta negativamente la solvencia actuarial del fondo” (folio 2945) En otro aspecto relacionado con este tema, algunos accionantes han señalado una infracción al Convenio 157 de la Organización Internacional del Trabajo. Sobre ello debe indicarse primero que dicho instrumento no aparece ratificado por nuestro país, por lo que su valor como parámetro para esta Sala, va a depender de que en su contenido se hayan establecido lineamientos claros y específicos -validados por un buen número de Estado- sobre el tema concreto que aquí se valora a saber, guías para proteger los derechos “en proceso de adquisición”. Sin embargo, en el texto del convenio no se incluye ninguna disposición que permita a la Sala entender que el Estado costarricense ha actuado a contrapelo de la tendencia internacional en la protección de derechos humanos, dado que el mencionado instrumento se limita a regular condiciones para que los Estados puedan dar reconocimiento y protección a trabajadores que por diferentes razones han acumulado derechos al amparo de diversas legislaciones estatales. Lo anterior no resulta aplicable al caso concreto por lo que este reclamo debe descartarse.

Finalmente, algunos de los accionantes han mencionado dentro de este reclamo concreto, la existencia de una lesión a la Convención Americana Sobre Derechos Humanos, señalando que ya la Corte Interamericana de Derechos Humanos, como intérprete de dicho instrumento, fijó las condiciones mínimas exigidas a los Estados para el respeto del derecho a la seguridad social en el ámbito del sistema americano de Derechos Humanos. Refieren los interesados que en el caso “Muelle Flores contra Perú” se dejaron establecidas unas pautas que se ven contradichas con la emisión de la Ley 9544 en general y en particular con la disposición transitoria VI con la que se afectan derechos convencionales de las personas con menos de 28 años y seis meses de servicio a la fecha de entrada en vigencia de la reforma. Sobre el tema, la revisión de texto de la decisión citada permite a la Sala concluir que dicha sentencia contiene elementos relevantes para la interpretación del derecho fundamental a la seguridad social, pero que no resultan relevantes ni pertinentes para la solución de este reclamo ni de este proceso en general. En la sentencia mencionada, la Corte Interamericana de Derechos Humanos resolvió el caso de una persona ya jubilada, a quien se le dejó de pagar la suma periódica correspondiente que había venido percibiendo, debido a la privatización de la empresa pública que cubría dicho pago. El caso resultó más grave aún, por cuanto el interesado obtuvo por parte de la justicia peruana, al menos dos sentencias firmes en su favor y sin embargo, al momento de plantear su queja ante el órgano de justicia internacional, no había logrado que se hiciera efectiva la reanudación del pago efectivo de su jubilación. La Corte Interamericana de Derechos Humanos, expuso la esencia fáctica del caso así:

“191. (…(L)a Corte nota que el presente caso no versa sobre las obligaciones de progresividad derivadas del artículo 26 de la Convención, sino que se refiere a la falta de concretización material del derecho a la pensión, como parte integrante del derecho a la seguridad social, del señor Muelle Flores, debido a la falta de cumplimiento y ejecución de sentencias dictadas a su favor a nivel interno en el marco de la privatización de la empresa estatal, efectuado luego de su jubilación. El señor Muelle Flores adquirió su derecho a la pensión bajo un régimen de contribuciones administrado por el Estado, es decir que adquirió el derecho a recibir una pensión luego de haber realizado aportes durante varios años. La legalidad de su incorporación a dicho régimen fue confirmado a nivel interno (supra párr. 74)” Y seguidamente, emite un valioso resumen de su esfuerzo de revisión e interpretación de las distintas fuentes que estimó pertinentes a su tarea de delimitación del derecho a la seguridad social en el caso concreto:

“192. En este sentido, con base en los criterios y elementos constitutivos del derecho a la seguridad social, y tomando en cuenta los hechos y particularidades del presente caso, las obligaciones del Estado en relación con el derecho a la pensión son las siguientes: a) el derecho a acceder a una pensión luego de adquirida la edad legal para ello y los requisitos establecidos en la normativa nacional, para lo cual deberá existir un sistema de seguridad social que funcione y garantice las prestaciones. Este sistema deberá ser administrado o supervisado y fiscalizado por el Estado (en caso de que sea administrado por privados); b) garantizar que las prestaciones sean suficientes en importe y duración, que permitan al jubilado gozar de condiciones de vida adecuadas y de accesos suficiente a la atención de salud, sin discriminación; c) debe haber accesibilidad para obtener una pensión, es decir que se deberán brindar condiciones razonables, proporcionadas y transparentes para acceder a ella. Asimismo, los costos de las cotizaciones deben ser asequibles y los beneficiarios deben recibir información sobre el derecho de manera clara y transparente, especialmente si se tomara alguna medida que pueda afectar el derecho, como por ejemplo la privatización de una empresa; d) las prestaciones por pensión de jubilación deben ser garantizadas de manera oportuna y sin demoras, tomando en consideración la importancia de este criterio en personas mayores, y e) se deberá disponer de mecanismos efectivos de reclamo frente a una violación del derecho a la seguridad social, con el fin de garantizar el acceso a la justicia y la tutela judicial efectiva, lo cual abarca también la concretización material del derecho a través de la ejecución efectiva de decisiones favorables dictadas a nivel interno.” (el destacado en negrita no está en el original) Como puede observarse, ninguno de los puntos citados por el tribunal internacional ha sido desatendido por parte del legislador costarricense en su esfuerzo de generar medidas de orden general para la modificación y ajuste del régimen de jubilaciones y pensiones del Poder Judicial; al contrario, se respeta claramente la situación de las personas que ya habían adquirido el derecho al disfrute de su jubilación o pensión por haber cumplido con los requisitos fijados y por otra se asegura la oportuna financiación de una jubilación por vejez a aquellos a los quienes aún les falta cumplir con las condiciones legalmente fijadas.

En conclusión, la Sala entiende de lo expuesto que no existen elementos de juicio que permitan afirmar que el plazo establecido en el transitorio VI de la Ley 9544, es irrazonable o desproporcionado respecto de la finalidad que se pretende con la disposición, y más bien, la decisión legislativa resulta justificada frente a los cambios realizados. De igual forma, no hay infracción al derecho convencional que declarar y por ende la acción debe declararse sin lugar en este aspecto.” Del precedente previamente transcrito interesa resaltar: a) que no existe un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando esto resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado del monto de su jubilación; b) en este caso en particular, la reforma al Régimen de Pensiones y Jubilaciones del Poder Judicial justamente procura garantizar su permanencia, para lo cual se fijaron parámetros y requerimientos a partir de la opinión de expertos que fueron recibidos por la Comisión Especial que dictaminó el expediente legislativo n.°19.922, así como de estudios de naturaleza técnica que fueron incorporados al expediente; y c) respecto del plazo de 18 meses fijado en el transitorio VI, no solo encuentra su fundamento en la jurisprudencia específica –y reiterada– de este Tribunal para el tema de los cambios en los regímenes provisionales, sino que también tiene debido sustento técnico, por razones de solvencia actuarial, como ya se destacó en tal voto.

2.- SOBRE LOS 18 MESES A LA LUZ DEL INFORME FINAL: “RECOPILACIÓN E INFORME FINAL: CONCLUSIONES Y RECOMENDACIONES” (PRODUCTO 6) DEL PROYECTO: “ESTUDIO ACTUARIAL DEL FONDO DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL”, ELABORADO POR EL INSTITUTO DE INVESTIGACIONES EN CIENCIAS ECONÓMICAS DE LA UNIVERSIDAD DE COSTA RICA.

Debe insistirse, una vez más, que el plazo de 18 meses previsto en el transitorio impugnado, no solo se fundamenta en la amplia jurisprudencia de este Tribunal sobre este tema, sino que se encuadra dentro de lo razonable, a la luz de los criterios técnicos incorporados al expediente legislativo. En cuanto a este punto, resulta de particular interés remitir al informe emitido por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE), el 4 de julio de 2017, denominado Producto 6 “Recopilación e informe final: conclusiones y recomendaciones”, como principal criterio técnico incorporado al expediente legislativo.

De relevancia para esta acción, destaca que en el estudio se hace un primer análisis de tres escenarios, que corresponden a tres marcos normativos distintos: el vigente al momento del estudio y dos reformas propuestas (“texto sustitutivo” y propuesta de “Corte Plena”). En el estudio se concluye que los tres marcos resultan insolventes. Al respecto, se puede observar la tabla visible en la página 5:

Lo relevante es que tanto el “texto sustitutivo” como el de “Corte Plena”, contemplaban una participación con años de servicio de “>=20”, tal y como se constata en la tabla agregada en la página 43:

De allí, que en el oficio suscrito por el superintendente de pensiones a. i., oficio SP-1240-2023 del 19 de octubre de 2023 (asociado a este expediente el 20 de octubre de 2023), se haya afirmado que tanto el texto sustitutivo como el texto de Corte Plena establecían “un transitorio donde se le mantenía el perfil de requisitos y beneficios anterior (ley 7333) a las personas con veinte años o más de servicios. Lo anterior redundaba en que ambas propuestas no generaban el impacto en la magnitud y oportunidad requerida, dada la situación actuarial del régimen”.

Esto se relaciona, principalmente, con la acción n.°19-024589-0007-CO, en que se pretende –en el fondo– extender el régimen transitorio, para personas con 20 años o más de servicio, pero en el citado estudio técnico ya se concluyó que esto no era viable.

Por lo demás, la mencionada falta de viabilidad de los textos propuestos provocó que el IICE presentara cuatro escenarios nuevos, que se describen en la tabla visible en la página 57:

Entre los principales cambios que destacan en estos escenarios es que se modifica la participación con años de servicio a “>=28”.

Incluso, llama la atención que, al comparar o contrastar estos nuevos escenarios, con las propuestas originales (que no eran viables), el mismo IICE haga la siguiente afirmación (página 71):

“De la comparación de los diferentes resultados obtenidos en cada uno de los Marcos Normativos (IICE_1 vs IICE_2 vs IICE_3 vs IICE_4), se observa que:

-los principales indicadores de solvencia actuarial aquí cuantificados (el Balance Actuarial y el respectivo indicador de “Nivel de Insolvencia”) bajo los MARCOS IICE_2, IICE_3 e IICE_4, mejoran significativamente con respecto a los indicadores obtenidos para el mismo escenario económico bajo el MARCO IICE_1 (que recordemos, es un marco normativo similar al de Corte Plena pero con un transitorio mucho más limitado y un aporte obrero y del jubilado del 15%).” De lo que se puede interpretar que una de las modificaciones que tuvo que realizar el IICE, en procura de ofrecer un escenario solvente, fue incluir un “transitorio mucho más limitado”.

Finalmente, el IICE concluye (página 71) que:

“7.5 Valoración final de los resultados obtenidos El análisis desarrollado indica que bajo cualquiera de los primeros cinco esquemas de beneficios y aportes hasta ahora estudiados por el IICE (o sea, bajo 1-MARCO VIGENTE, 2-MARCO TEXTO SUSTITUTIVO, 3-MARCO CORTE PLENA, 4-MARCO IICE_1 y 5-MARCO IICE_2), el Fondo NO podría garantizar sus promesas en el largo plazo utilizando sólo los propios recursos asignados por el Marco en cuestión.

En contraste, bajo cualquiera de los últimos dos esquemas de beneficios y aportes propuestos por el IICE (o sea, bajo el MARCO IICE_3 o el MARCO IICE-4), el Fondo tendría solvencia actuarial y sí podría garantizar sus promesas en el largo plazo utilizando sólo los propios recursos asignados por el Marco en cuestión (o sea, sería autosuficiente).

Bajo la premisa de que el Fondo debe garantizar por sí mismo los beneficios que promete (sin crear cargas adicionales al Estado o al resto de los trabajadores costarricenses), la recomendación del presente informe del IICE al Poder Judicial consiste en escoger entre uno de los dos marcos normativos IICE_3 o IICE_4). Estos marcos normativos solamente resultan insolventes en un escenario económico financiero “Pesimista”.” En cuyo caso, cabe reiterar que estos dos escenarios propuestos (IICE_3 e IICE_4) contemplaban una participación con años de servicio “>=28”. Sobre este punto, en el citado oficio SP-1240-2023, el superintendente de pensiones a. i. explica: “Así, en el escenario “MARCO IICE_4” se indica que “Partic. con años servicio > = 28 (...) Aplican Reglas Marco Vigente”, lo que significa que todas las personas con 28 años de servicio o más a la fecha de corte de la valuación se mantienen bajo las condiciones previas a la reforma”. Lo que suponía o se traducía a proponer un transitorio de 24 meses.

Ahora, volviendo nuevamente al estudio del IICE, en su apartado de consideraciones finales (página 74) se afirma:

“b. Sobre el “transitorio” que permitiría a las personas que se jubilarían en un plazo de dos años y la posibilidad de ampliar ese transitorio para las personas que se jubilarían en un plazo de cinco años.

Un aumento en el “transitorio” pospone los ajustes y por lo tanto afecta negativamente los ingresos del Fondo. Para valorar adecuadamente el efecto de un aumento de ese transitorio sería necesario realizar un análisis actuarial completo.

Por otra parte, una decisión en esta dirección puede inducir a los administradores y agentes políticos a realizar gestiones para incluir a grupos sucesivamente más numerosos, de forma que al final un “transitorio” de dos años terminaría transformándose en un transitorio de cinco, seis o incluso más años.

Finalmente, la ampliación del transitorio pospone parte de los ajustes, por lo que análisis de rentabilidad y solvencia del Fondo pueden generar la impresión de que los ajustes que sí se realizaron no surtieron efecto.” También se hizo una referencia (en la página 74 y 75) al tema de la gradualidad en la aplicación de los ajustes y se indicó:

“f. Gradualidad.

En algunas ocasiones se ha consultado si los ajustes planteados, tanto en los aportes como en las edades de retiro, pueden aplicarse en forma gradual. La idea detrás de estas consultas es atenuar el costo del ajuste para la población participante.

El equipo de trabajo del IICE, habiendo determinado que el régimen de jubilaciones y pensiones vigente para el Poder Judicial es insolvente, ha considerado fundamental que los ajustes se realicen a la mayor brevedad posible. Como se indicó anteriormente, el Fondo de Jubilaciones y Pensiones del Poder Judicial es insolvente en este momento, y cada día que se pospone el ajuste se agudiza la situación de insolvencia. Es tomando en consideración estos lineamientos que el equipo técnico del IICE no considera adecuada la aplicación de ajustes en forma gradual.” De lo expuesto, se pueden obtener las siguientes conclusiones: a) en el estudio técnico sí se analizaron escenarios que incluían la posibilidad de mantener el perfil de requisitos y beneficios existentes con anterioridad a la reforma propuesta, respecto de personas con 20 años o más de servicio, pero se concluyó que esto no era viable; b) esto provocó la necesidad de proponer nuevos escenarios, que reducían la aplicación del perfil anterior a personas con 28 años o más de servicio (lo que se traduciría en un transitorio de 24 meses); y c) en cuanto a la posibilidad de ampliar ese transitorio a las personas que se jubilarían en un plazo de 5 años (lo que se refiere, particularmente, a las pretensiones formuladas en la acción n.°22-0014613-0007-CO), lo cierto es que en el propio estudio no se aconseja tal ampliación.

Adicionalmente, debe tomarse en consideración que el mencionado informe del IICE -producto 6- se realizó con corte a diciembre de 2015, de forma tal, que el plazo de 24 meses de régimen transitorio recomendado en el estudio estaba proyectado para amparar a aquellas personas que a diciembre de 2017 cumplieron los requisitos previstos en la Ley N°7333; sin embargo, nótese que la Ley N°9544 se aprobó en el año 2018 y entró a regir en mayo de ese año, lo que supone que, de facto, se dio un transitorio de 47 meses (si se toma en consideración el plazo transcurrido entre la fecha de corte del estudio técnico y la fecha de efectiva promulgación de la ley, así como el plazo de 18 meses finalmente dispuesto en el transitorio VI). Asimismo, ese ajuste final de 24 a 18 meses, en el caso del transitorio impugnado, puede entenderse como justificado, en tanto vino a compensar, parcialmente, el tiempo transcurrido entre la fecha de corte del estudio actuarial realizado por el IICE –producto número 6– y la fecha en que se aprobó y promulgó la Ley n.°9544. Lo anterior, en aras de procurar por la efectividad de la reforma al régimen.

3.- EN CONCLUSIÓN.

La Asamblea Legislativa, en el momento de aprobar el transitorio que se cuestiona de inconstitucional, se apegó a los reiterados antecedentes de este Tribunal y actuó dentro de parámetros razonables, con debido y suficiente sustento en los criterios técnicos incorporados al expediente legislativo.

• C)CUÁL ERA LA SITUACIÓN DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL ANTES DE SU REFORMA MEDIANTE LEY N.° 9544.

De acuerdo con el estudio actuarial del 2015 se tenía un déficit actuarial de 6.37 billones, lo que ponía en riesgo su sostenibilidad. Es más, se proyectaba, para el año 2029, un primer punto crítico para el régimen, pues se comenzarían a usar los intereses generados por las reservas del Fondo para poder hacer frente a sus promesas de pago. Para el año 2040 se proyectaba un segundo punto crítico, por ser el primer año en que sería necesario utilizar las reservas con el fin de hacer frente a las promesas del Fondo y, para el año 2048, se proyectaba un tercer punto crítico, momento en que el Fondo ya no podría hacer frente al pago de sus promesas. Lo que evidencia la situación crítica en que se encontraba el régimen.

Debe insistirse que la crisis de los regímenes de pensiones obedece a que se invirtió la pirámide poblacional, lo que afecta especialmente a los regímenes de reparto.

• D)CUÁL ES LA SITUACIÓN ACTUAL DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL.

En el último estudio actuarial realizado al régimen, con corte al 31 de diciembre de 2022 (denominado "Valuación actuarial del Régimen de Jubilaciones y Pensiones del Poder Judicial, periodo 2022” y visible en la página web de la Superintendencia de Pensiones), se exponen las siguientes conclusiones:

• a)El escenario base, el cual corresponde a lo que la normativa establece con población cerrada, tiene una razón de solvencia del 76.28% y se requeriría una prima sobre salarios de 62.09%, lo que produce un déficit de 644,820 millones de colones. De acuerdo con lo establecido en la Política de Solvencia del Régimen, la razón de solvencia es tolerable pues se ubica entre un 70% y un 80%.
• b)Para el año 2022, el déficit disminuyó debido a un aumento de la población activa y un cambio en los objetivos de rentabilidad por parte de la JUNAFO. Adicionalmente, se presentó una mejoría en los resultados por cambios en las tasas de salida y en la escala salarial. Todo esto a pesar de los cambios dados en el entorno macroeconómico, que produjeron como resultado pérdidas no realizadas por 63,240 millones de colones.
• c)Es necesario obtener tasas de crecimiento de los trabajadores cercanas o superiores al 3.35% para alcanzar una razón de solvencia del 100%. El escenario con población abierta y la tasa de crecimiento del 1% de la población reducen el déficit a 369,684 millones de colones y se alcanza una razón de solvencia de 87.67%.
• d)El escenario optimista muestra un déficit de 405,981 millones de colones, una razón de solvencia de 82.88% y una prima media de 54.80% de los salarios.
• e)El escenario pesimista muestra un déficit de 954,340 millones de colones, una razón de solvencia de 69.76% y una prima media de 70.63% de los salarios.
• f)Bajo los supuestos empleados, el escenario de beneficios devengados presenta un déficit actuarial de 1,079,928 millones de colones y una razón de solvencia del 48.73%. Un 64% de los pasivos corresponde a los derechos en curso de pago y un 36%, a los derechos en formación.
• g)Para mejorar el nivel de solvencia, es necesario realizar acciones, las cuales deben recaer en los derechos en curso de pago, pues estos derechos fueron otorgados en condiciones actuarialmente laxas que contribuyeron a la situación actual del Fondo. Una de estas acciones es reducir el porcentaje de la tasa de reemplazo del 80% al 50% en los derechos sucesorios y reconocerles un 50% de inflación a los derechos en curso de pago actuales por un periodo de diez años. Este escenario aumenta la solvencia y prolongará la capacidad de pago del Fondo.

Lo que provoca, incluso, que en ese mismo estudio se recomiende plantear un proyecto de ley que permita disminuir el costo de los derechos en curso de pago, en el sentido de:

Reducir el porcentaje de la tasa de reemplazo del 80% al 50% en los futuros derechos sucesorios. Por 10 años, reconocer un 50% de inflación a los derechos en curso de pago.

De lo que se deriva –y que resulta de interés para esta acción– que, si bien se constata una reducción en el déficit actuarial, este aún no se ha podido eliminar, por lo que incluso se recomienda la adopción de medidas adicionales, para aumentar la solvencia del Fondo y prolongar su capacidad de pago.

No hay que perder de vista que este régimen es uno de reparto, en el que los trabajadores activos -con sus cotizaciones- financian el pago de las jubilaciones y pensiones en curso. De ahí que no resulta razonable y no es acorde con las reglas actuariales, echar mano a los rendimientos del fondo, pues ello significa que hay un desequilibrio financiero -los pagos de las jubilaciones y pensiones en curso (mes a mes) superan los ingresos por cotizaciones del fondo- y, además, el fondo cada día decrece, con lo que se entra en una crisis que puede conllevar al cierre del régimen -déficit actuarial-.

• E)CUÁLES SON LAS CONSECUENCIAS DE DECLARAR CON LUGAR LA PRESENTE ACCIÓN DE INCONSTITUCIONALIDAD.

En el resultado 33 tenemos la respuesta. Al respecto el presidente de Fondo de Pensiones remite al estudio actuarial realizado por el MBA Raúl Hernández González, en el que se concluye:

“En el siguiente cuadro se presenta un resumen de lo determinado en cada una de las corridas efectuadas. Los resultados mostrados incluyen el número de personas adicionales que pueden beneficiarse, como el incremento total del déficit. En los anexos se incluye el balance respectivo:

(...) es importante indicar que ... actualmente la solvencia es inferior a uno, por lo tanto, cualquier mejora de los beneficios provocaría que la solvencia disminuya más”.

Por lo demás, el presidente del Fondo de Pensiones aclara que las cifras están expresadas en miles de millones de colones, en razón de lo cual debe leerse para el último escenario de 10 años plazo y 2759 personas, trescientos veinticuatro mil once millones de colones, equivalente aproximadamente a seiscientos tres millones de dólares de incremento en el déficit en comparación con el escenario abierto con una tasa de crecimiento del 1% que se utilizó como base bajo dicha metodología de valoración actuarial. También señala que debe quedar claro que, cualquier incremento de tiempo en el transitorio VI, provocaría un incremento en los egresos y/u obligaciones a los que este régimen se ve sometido, por lo cual todos los escenarios arrojan una desmejora en los indicadores correspondientes y la pretensión de esta acción provocaría un incremento en el déficit del Régimen del Fondo de Jubilaciones y Pensiones del Poder Judicial –FJPPJ-, con incrementos relativos entre el 13.31 % y el 87.65 % de dicho déficit. Agrega que, al valorar el indicador de la razón de solvencia, este indicador desmejora relativamente entre un 1.57 % y un 9.40 %. Concluye, finalmente, que ambos indicadores coinciden en su tendencia hacia el desmejoramiento de la salud financiera del régimen, en caso de acogerse cualquier ampliación.

En esta dirección, hay que tener presente que, a diferencia de las sentencias de los tribunales ordinarios, cuyos efectos son inter-partes, la sentencia del Tribunal Constitucional tiene efectos erga omnes, de ahí que el Tribunal debe ser sumamente cauto a la hora resolver una cuestión, pues debe tomar muy en cuenta los efectos en el ámbito político, económico, social, cultural, etc. Al respecto, en la sentencia n.° 2000-7730, se estableció lo siguiente:

“También la doctrina del Derecho constitucional observa que al hacer una interpretación del contenido de una norma: “1) debe prevalecer el contenido finalista de la Constitución, que es garantizar la libertad y la dignidad humanas; 2) debe ser interpretada con un criterio amplio, liberal y práctico; 3) las palabras de la Constitución deben ser interpretadas en su sentido general y común, a menos que sea claro que el creador de la norma se refirió a un significado técnico-legal; 4) debe ser interpretada como un todo, como un conjunto armónico; 5) hay que tener en cuenta las situaciones sociales, económicas y políticas que existen al momento de realizarse la interpretación; 6) las excepciones y privilegios deben interpretarse con criterio restrictivo, y 7) los actos públicos se presumen constitucionales si mediante la interpretación pueden ser armonizados con la Ley Fundamental.” (Las negritas no corresponden al original).

En atención a lo analizado hasta este momento, se puede concluir que el plazo de 18 meses previsto en el transitorio impugnado se sustentó, de forma razonable, en los datos arrojados por los respectivos estudios técnicos. En cambio, el que esta Sala disponga ampliar tal plazo –tal y como se pretende en la presente acción–, supondría generar un desmejoramiento en la salud financiera del régimen, que aún, al día de hoy, presenta un déficit actuarial –pese a los efectos favorables que ha provocado la reforma realizada mediante Ley nro. 9544–.

• F)SOBRE LAS SITUACIONES JURÍDICAS CONSOLIDADAS Y LOS DERECHOS ADQUIRIDOS.

La Sala Constitucional, siguiendo la más autorizada doctrina sobre el tema, tiene un concepto claro y preciso sobre las situaciones jurídicas consolidadas y su diferencia con los derechos adquiridos. En efecto, se considera que se ha consolidado una situación desde la óptica jurídica cuando la persona cumple con los supuestos de hecho -requisitos- para obtener un derecho, antes solo se tiene una expectativa de derecho. Se diferencia de un derecho adquirido, porque los ingresos han entrado en el patrimonio de la persona, de ahí que en un régimen de jubilaciones y pensiones se entiende por la situación jurídica consolidada cuando la persona cumple con todos los requisitos establecidos por ley para que se le otorgue el derecho jubilatorio o la pensión. Por su parte, se está frente a un derecho adquirido en lo referente a los ingresos que ingresan al patrimonio de los jubilados y pensionados. Sobre el particular, la Sala Constitucional ha establecido lo siguiente:

“Los conceptos de "derecho adquirido" y "situación jurídica consolidada" aparecen estrechamente relacionados en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en la que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente– ha ingresado en (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la "situación jurídica consolidada" representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante en cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o de una sentencia que así lo haya declarado– haya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo «si..., entonces...»; vale decir: si se ha dado el hecho condicionante, entonces la "situación jurídica consolidada" implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derecho adquirido o situación jurídica consolidada), el ordenamiento protege –tornándola intangible– la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y de certeza jurídica. En este caso, la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona, o de provocar que si se había dado el presupuesto fáctico con anterioridad a la reforma legal, ya no surja la consecuencia (provechosa, se entiende) que el interesado esperaba de la situación jurídica consolidada. Ahora bien, específicamente en punto a ésta última, se ha entendido también que nadie tiene un "derecho a la inmutabilidad del ordenamiento", es decir, a que las reglas nunca cambien. Por eso, el precepto constitucional no consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior; lo que significa es que –como se explicó– si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. Esto es así porque, se dijo, lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla.” (votos n.° 7331-97 y n.° 2765-97) (Lo resaltado no es del original) Vistas, así las cosas, no resulta jurídicamente procedente invocar una situación jurídica consolidada en esta litis, por la elemental razón de que quienes no cumplen con los requisitos jubilatorios no se encuentran en ese supuesto. A lo sumo, se puede hablar de un derecho en vía de adquisición como se analizará más adelante.

Ergo, cuando hay una justificación objetiva y razonable, sustentada en un estudio técnico, el legislador está autorizado por el Derecho de la Constitución a modificar los requisitos jubilatorios y de pensiones, incluso recortando el cuadro de beneficios, con el fin de darle sostenibilidad financiera y actuarial al respectivo régimen, pues el interés colectivo, en todo momento, debe privar sobre el interés particular.

Así las cosas, la mayoría de la Sala Constitucional concluye que no hay ninguna violación a las situaciones jurídicas consolidadas, por la sencilla razón de que estas no existen y, por ende, no se vulnera el numeral 34 constitucional.

• G)PRINCIPIO DE CONFIANZA LEGÍTIMA.

Como es bien sabido, la confianza legítima es un concepto acuñado en el Derecho Alemán (Vertrauensschutz), donde tiene rango constitucional, derivado del principio de seguridad jurídica y en otros ordenamientos jurídicos también del principio de buena fe. Este principio es de vieja data. En efecto, ya el Tribunal de Justicia de la Comunidad Europea (TJCE), pese a que no estaba recogido en los Tratados Constitutivos, lo reconoció en 1973 en materia de función pública (As. 81/1972 del 5 de junio). Para su correcta interpretación y aplicación, según la doctrina, se exigen ciertos requisitos: 1) que haya una acción de las autoridades comunitarias que justifique las legítimas expectativas de los afectados (y, en este sentido, es posible tanto una medida legal como ilegal que confiera beneficios, prácticas administrativas, promesas realizadas, información errónea suministrada, cambios normativos sorpresivos, etc.), 2) las expectativas de la persona que tienen una base subjetiva deben, en su caso, ser reconocidas y consideradas por un observador externo y ser capaces, de esa forma, de adquirir una base y dimensión objetiva de tal forma que se conviertan en lo que el Tribunal denomina “esperanzas fundadas” no contrarias al Derecho Comunitario; y 3) es preciso que en la valoración de los intereses de la persona afectada en contraposición con el interés público en presencia, este último no sea preponderante. Como puede observarse, en el caso de los funcionarios del Poder Judicial que tenían veinte años o más de laborar y que no entraron dentro del plazo que estableció el transitorio VI que se impugna, no se cumple con ninguno de estos supuestos. En primer término, todos los trabajadores que cotizan para un régimen de jubilaciones y pensiones saben muy bien que cuando el régimen atraviesa por una crisis financiera o actuarial el Derecho de la Constitución autoriza al Estado a realizar los ajustes, aun y cuando estos recorten los beneficios jubilatorios y de pensiones con el fin de equilibrar financiera y actuarialmente el régimen. En este sentido, nadie tiene derecho a la inmutabilidad del ordenamiento jurídico, es decir, a que no se modifiquen las reglas con el fin de darle sostenibilidad financiera y actuarial al sistema. Dicho en otras palabras, no hay ninguna conducta, acto, ley o norma constitucional o internacional que le dé la expectativa a la persona que los requisitos jubilatorios de su régimen nunca van a ser modificados; todo lo contrario, la conducta del Estado y la Junta Directiva de la CCSS que han asumido, es que cuando hay un desajuste en los regímenes de pensiones, el Derecho de la Constitución los autoriza, con base en los estudios técnicos, hacer los cambios correspondientes, aun y cuando esto signifique un recorte de beneficios, con el fin de darle sostenibilidad financiera y actuarial al régimen. En esta dirección, no se puede asimilar el derecho de pertenencia a un régimen de pensiones, según el Convenio 102 de la O.I.T., con la no modificación de los beneficios jubilatorios y de pensiones que un momento determinado otorga a la persona, lo cuales están sujetos a cambios cuando los estudios actuariales así lo establecen. En segundo término, tampoco nos encontramos ante unas “esperanzas fundadas”, pues en los tiempos actuales, en los cuales se ha invertido la pirámide poblacional –las sociedades actuales viven un procesos acelerado de envejecimiento, tal y como se explicó ut supra- lo que afecta de manera grave a los regímenes de jubilaciones y pensiones, en especial a los de reparto, pues los ingresos de los trabajadores activos resultan insuficientes para financiar las jubilaciones y pensiones en curso mes a mes, de lo que no está exenta la sociedad costarricense, se tiene claro que hay que estar haciendo permanentes ajustes a los regímenes de jubilaciones y pensiones para garantizar su sostenibilidad financiera y actuarial; lo contrario sería dejar que caigan en la insolvencia, lo que sí afectaría los derechos fundamentales de los jubilados y pensionados. Finalmente, cuando se da una crisis de un régimen de jubilaciones y pensiones, como ocurrió con el régimen especial del Poder Judicial que llegó a un punto de inflexión, en un análisis de ponderación de intereses en juego, no hay duda alguna que ir más allá de lo que establecía el estudio técnico, sería darles preponderancia a los intereses particulares frente a los intereses generales, lo que, a todas luces, no compagina con el Derecho de la Constitución. Por consiguiente, la mayoría de este Tribunal concluye que no se ha vulnerado el principio de confianza legítima.

• H)VIOLACIÓN A LOS PRINCIPIOS DE RAZONABILIDAD Y PROPORCIONALIDAD.

El Tribunal Constitucional, en una interesante resolución, el voto n.° 5236-99, estableció los siguientes componentes de la razonabilidad:

“…este Tribunal estima prudente hacer referencia a lo que se considera es la ‘razonabilidad de la ley como parámetro de constitucionalidad’. Conviene recordar, en primer término, que la ‘razonabilidad de la ley’ nació como parte del ‘debido proceso sustantivo’ (substantive due process of law), garantía creada por la jurisprudencia de la Suprema Corte de los Estados Unidos de América, al hilo de la Enmienda XIV a la Constitución Federal. En la concepción inicial ‘debido proceso’ se dirigió al enjuiciamiento procesal del acto legislativo y su efecto sobre los derechos sustantivos. Al finalizar el siglo XIX, sin embargo, superó aquella concepción procesal que le había dado origen y se elevó a un recurso axiológico que limita el accionar del órgano legislativo. A partir de entonces podemos hablar del debido proceso como una garantía genérica de la libertad, es decir, como una garantía sustantiva. La superación del ‘debido proceso’ como garantía procesal obedece, básicamente, a que también la ley que se ha ajustado al procedimiento establecido y es válida y eficaz, puede lesionar el Derecho de la Constitución. Para realizar el juicio de razonabilidad la doctrina estadounidense invita a examinar, en primer término, la llamada ‘razonabilidad técnica’ dentro de la que se examina la norma en concreto (ley, reglamento, etc.). Establecido que la norma elegida es la adecuada para regular determinada materia, habrá que examinar si hay proporcionalidad entre el medio escogido y el fin buscado. Superado el criterio de ‘razonabilidad técnica’ hay que analizar la ‘razonabilidad jurídica’. Para lo cual esta doctrina propone examinar: a) razonabilidad ponderativa, que es un tipo de valoración jurídica a la que se concurre cuando ante la existencia de un determinado antecedente (ej. ingreso) se exige una determinada prestación (ej. tributo), debiendo en este supuesto establecerse si la misma es equivalente o proporcionada; b) la razonabilidad de igualdad, es el tipo de valoración jurídica que parte de que ante iguales antecedentes deben haber iguales consecuencias, sin excepciones arbitrarias; c) razonabilidad en el fin: en este punto se valora si el objetivo a alcanzar, no ofende los fines previstos en la constitución. Dentro de este mismo análisis, no basta con afirmar que un medio sea razonablemente adecuado a un fin; es necesario, además, verificar la índole y el tamaño de la limitación que por ese medio debe soportar un derecho personal. De esta manera, si al mismo fin se puede llegar buscando otro medio que produzca una limitación menos gravosa a los derechos personales, el medio escogido no es razonable (en similar sentido pueden consultarse las sentencias números 1738-92, de las once horas cuarenta y cinco minutos del primero de julio de mil novecientos noventa y dos y 08858-98 de las dieciséis horas con treinta y tres minutos del quince de diciembre de mil novecientos noventa y ocho). La doctrina alemana hizo un aporte importante al tema de la ‘razonabilidad‘ al lograr identificar, de una manera muy clara, sus componentes: legitimidad, idoneidad, necesidad y proporcionalidad en sentido estricto, ideas que desarrolla afirmando que ‘...La legitimidad se refiere a que el objetivo pretendido con el acto o disposición impugnado no debe estar, al menos, legalmente prohibido; la idoneidad indica que la medida estatal cuestionada deber ser apta para alcanzar efectivamente el objetivo pretendido; la necesidad significa que entre varias medidas igualmente aptas para alcanzar tal objetivo, debe la autoridad competente elegir aquella que afecte lo menos posible la esfera jurídica de la persona; y la proporcionalidad en sentido estricto dispone que aparte del requisito de que la norma sea apta y necesaria, lo ordenado por ella no debe estar fuera de proporción con respecto al objetivo pretendido, o sea, no le sea ‘exigible’ al individuo..." (sentencia de esta Sala número 3933-98 de las nueve horas cincuenta y nueve minutos del doce de junio de mil novecientos noventa y ocho). En el sentido del criterio anteriormente expuesto, esta Sala ha venido aplicando la institución en su jurisprudencia. Veamos, ahora, el análisis del caso concreto. Sobre la prueba de ‘razonabilidad’: Para emprender un examen de razonabilidad de una norma, el Tribunal Constitucional requiere que la parte aporte prueba o al menos elementos de juicio en los que sustente su argumentación e igual carga procesal le corresponde a quien rebata los argumentos de la acción y la falta en el cumplimiento de estos requisitos, hace inaceptables los alegatos de inconstitucionalidad. Lo anterior, debido a que no es posible hacer un análisis de ‘razonabilidad’ sin la existencia de una línea argumentativa coherente que se encuentre probatoriamente respaldada. Ello desde luego, cuando no se trate de casos cuya ‘irrazonabilidad’ sea evidente y manifiesta. Retomando el alegato sobre la irrazonabilidad del plazo de dieciocho meses para optar por una pensión ordinaria, la Sala advierte que los accionantes no sólo no indican lo motivos que les llevan a concluir que la norma cuestionada es irrazonable, sino que tampoco aportan prueba alguna que permita a este Tribunal llegar a esa conclusión, transformando el debate en la exposición de conceptos subjetivos. Por otra parte, el caso no presenta las características de ser una situación de ‘irrazonabilidad’ evidente y manifiesta que además sea fácilmente perceptible, antes bien, de manera abstracta se puede indicar que la norma se ajusta al fin de la reforma legislativa, cual es corregir las distorsiones del sistema de pensiones derogado, creando de manera paralela un nuevo sistema que resguarda el "derecho de pertenencia al régimen del Magisterio Nacional" que esta Sala ha reconocido como un derecho de los cotizantes.” (Lo que está en negritas no corresponde al original).

Por su parte, el segundo principio, el de proporcionalidad, implica que el acto legislativo deber ser apropiado para la realización de los fines que en él subyacen (principio de adecuación); debe ser necesario, es decir, que debe imponer la menor cantidad posible de restricciones a los derechos fundamentales de los habitantes de la República, lo que supone que el medio empleado por el legislador debe ser adecuado y necesario para alcanzar el objetivo propuesto y, sólo puede ser necesario, cuando el legislador no podía haber elegido otro medio, igualmente eficiente, pero que no limitase o lo hiciere de forma menos sensible el derecho fundamental y; por último, proporcional en sentido estricto, es decir, un acto legislativo justo a la medida. (Véanse, entre otras resoluciones del Tribunal Constitucional, el voto n.° 1739-92 y el voto n.° 5236-99).

Adoptando como marco de referencia lo anterior, hay que tener presente que la ley que promulgó la Asamblea Legislativa está dotada de una justificación objetiva y razonable –evitar que el régimen especial cayera en un estado de insolvencia–. Para tal propósito se basó en un estudio técnico-actuarial, cuyo producto sexto no avalaba que la norma transitoria tuviese un periodo de 5 o más años. No hay duda alguna que las medidas que adoptó la Asamblea Legislativa, incluyendo el transitorio VI, se adecuó al fin –resolver el déficit actuarial del régimen de jubilaciones y pensiones del Poder Judicial–. Prueba de lo que se afirma es el hecho de su reducción sustancial, aunque con base en el último estudio actuarial todavía subsiste. Lo anterior significa que la norma impugnada resultó efectiva –el acto normativo parlamentario fue el adecuado para resolver el fin perseguido–. Finalmente, el hecho de que el legislador se haya decantado por un plazo de 18 meses en vez de 24, en sí mismo no provoca la inconstitucionalidad de norma cuestionada, por la elemental razón de que dicho acto normativo está dentro de un parámetro razonable según el estudio actuarial –producto seis–, de ahí que no es posible sostener que se haya optado por la solución más gravosa para aquellos que tenían un derecho en vía de adquisición. Tan es así, que después de casi seis años de que entró en vigencia la ley aún no se ha podido eliminar el déficit actuarial, y más bien el nuevo estudio propone que se adopten una serie de medidas, tal y como se reseñó ut supra, para lograr la sostenibilidad del régimen.

• I)DERECHOS EN VÍAS DE ADQUISICIÓN.

La Corte Constitucional colombiana ha establecido que la “sustitución de una norma por otra exige la necesidad de un régimen de transición. La existencia de normas transitorias es indispensable en la legislación sobre seguridad social en pensiones porque hay derechos en vía de adquisición. Se trata de un derecho ex - lege porque nace de una norma que expresamente lo establece y que señala criterios razonables para gozar de la excepcionalidad. Una vez entre en vigencia la norma que establece el régimen transitorio, las personas que reúnen los requisitos para adquirirlo consolidan una situación jurídica concreta que no puede ser menoscabada. Es además un auténtico derecho subjetivo que le da a su titular el derecho a que se le reconozca la prestación en las condiciones establecidas en la normatividad anterior y a acudir ante la jurisdicción en caso de incumplimiento. Como además los derechos provenientes de la seguridad social son irrenunciables, (artículos 48 y 53 C.P.), con mayor razón se requiere un régimen de transición” (sentencia T-235/02). La Asamblea Legislativa al establecer el transitorio VI –plazo de dieciocho meses a partir de la entrada en vigencia de la ley– respeta los derechos en vías de adquisición de los funcionarios que estaban próximos a jubilarse, pues ellos pueden optar al derecho fundamental a la jubilación con base en las reglas de la legislación modificada. Nótese que la sentencia del tribunal extranjero no fija un plazo para garantizar estos derechos en vía de adquisición, ni podría fijarse, pues el análisis debe ser casuístico. En el sub lite, tenemos que los estudios actuariales –producto número 6–, en todo momento, estableció que no era sostenible un transitorio de diez ni de cinco años, a lo sumo de veinticuatro meses. De ahí que con base en un criterio técnico no es posible sostener que se están vulnerados los derechos en vías de adquisición. Hay que tener presente que este tipo de derechos están condicionados a un criterio técnico, situación que no se presenta en este caso para concederlos. Tampoco es de recibo el argumento de que con base en el criterio técnico el transitorio tenía que ser de veinticuatro meses y no dieciocho. En esta dirección, hay que tener presente que el acto legislativo, a diferencia del administrativo, es uno en el que el legislador goza, por mandato expreso del Derecho de la Constitución, de un amplio margen de discrecionalidad. En esa dirección, sería irrazonable y antidemocrático argumentar que la discrecionalidad parlamentaria está sometida a las reglas de la discrecionalidad administrativa, sea: los principios generales de derecho, los hechos determinantes y los conceptos jurídicos indeterminados. Una tesis en esa dirección sería contraria a las más elementales reglas de la democracia y, por consiguiente, caeríamos en la “tiranía de la técnica”. Quienes ejercen la potestad legislativa, según reza el numeral 105, tienen un amplio margen para adoptar las decisiones políticas fundamentales a través del acto legislativo, siempre y cuando respeten el Derecho de la Constitución; este es el límite, no otro, ni mucho menos el que está diseñado para el ejercicio de la discrecionalidad administrativa. Lo anterior significa que, si bien esta Sala ha establecido que en materia de jubilaciones y pensiones el legislador debe contar con estudios técnicos, estos, en todas sus dimensiones, no resultan vinculante para él; bien puede optar por otras soluciones que resultan razonables y que constituyen una respuesta válida para resolver el problema objeto del proyecto de ley. En el sub lite tenemos que legislador, al momento de ejercer la potestad de legislar, se enfrenta con un problema de enormes dimensiones –la insolvencia del régimen de jubilaciones y pensiones– y al momento de legislar dicta las normas que considera más adecuada para resolverlo –de hecho, el tiempo ha demostrado que las medidas adoptadas casi han resuelto el problema en su totalidad, pues se ha reducido de manera sustancial el déficit actuarial, tal y como lo demuestra el último estudio–, de ahí que no es de recibo el afirmar que hay una inconstitucionalidad porque el legislador adoptó el plazo de los dieciocho meses, y no el de los veinticuatro. Nótese que no existe una irracionalidad ni desproporcionalidad en la actuación del legislador a causa de la proximidad entre un plazo y otro. Incluso, debe traerse a colación lo previamente indicado, en el sentido que ese ajuste de veinticuatro a dieciocho meses puede entenderse como justificado, en razón del tiempo transcurrido entre la fecha de corte del estudio actuarial realizado por el IICE –producto número 6– y la fecha en que finalmente se aprobó y promulgó la Ley n.°9544. De ahí que para la mayoría del Tribunal no se han vulnerado los derechos en vías de adquisición de los trabajadores judiciales que tenían veinte o más años de pertenecer al régimen especial, pues se respetaron esos derechos hasta donde era razonablemente posible.

• J)LA SUPUESTA VIOLACIÓN DE LOS TRATADOS INTERNACIONALES Y LOS CONVENIOS DE LA O.I.T.

Se alega que la norma cuestionada violenta varios tratados internacionales de derechos humanos y de la O.I.T. Para una correcta comprensión de la tesis de la mayoría hay que tener en cuenta una serie de conceptos básicos en relación con los compromisos internacionales que ha asumido el Estado de Costa Rica. De lo contrario, se puede caer en una versión distorsionada de la cuestión. En primer término, hay que puntualizar que los tratados relativos a los derechos económicos, sociales y culturales –en adelante DESC– condiciona su efectividad a las posibilidades económicas de cada Estado y al principio de progresividad. Así se desprende del artículo 26 de la Convención Americana sobre Derechos Humanos, cuando dispone lo siguiente:

Artículo 26 Desarrollo Progresivo Los Estados Partes se comprometen a adoptar providencias, tanto a nivel interno como mediante la cooperación internacional, especialmente económica y técnica para lograr progresivamente la plena efectividad de los derechos que se derivan de las normas económicas, sociales y sobre educación, ciencia y cultura, contenidas en la Carta de la Organización de los Estados Americanos, reformada por el Protocolo de Buenos Aires, en la medida de los recursos disponibles, por vía legislativa u otros medios apropiados.

Por su parte, el artículo 1 del protocolo a la citada convención –Protocolo de San Salvador– establece lo siguiente:

Artículo 1 Obligación de Adoptar Medidas Los Estados partes en el presente Protocolo Adicional a la Convención Americana sobre Derechos Humanos se comprometen a adoptar las medidas necesarias tanto de orden interno como mediante la cooperación entre los Estados, especialmente económica y técnica, hasta el máximo de los recursos disponibles y tomando en cuenta su grado de desarrollo, a fin de lograr progresivamente, y de conformidad con la legislación interna, la plena efectividad de los derechos que se reconocen en el presente Protocolo.

Como puede observarse, en lo que atañe a los DESC, los instrumentos internacionales de derechos humanos no le imponen a los Estados obligaciones inmediatas que deban satisfacer, pues los compromisos internacionales se han de alcanzar de manera progresiva y de acuerdo con la disponibilidad de los recursos con que cuente cada uno de estos. De ahí que cuando se invocan estas normas es menester tener claro estos condicionantes. Incluso, si se analiza con mayor detenimiento el Protocolo a la Convención Americana sobre Derechos Humanos, la voluntad de las partes contratantes, adoptando como marco de referencia los condicionantes ut supra, solo establece como justiciables ante el sistema interamericano de derechos humanos, los derechos de sindicalización y educación, precisamente, para evitar que los Estados fuesen objeto de condenas que contradijesen los principios de progresividad y disponibilidad de recursos. De ahí que la mayoría de Tribunal enfatiza que no basta con citar una norma internacional o convenio, si a la par de esa invocación no se ha tomado en cuenta los citados presupuestos. Esta forma de visualizar la cuestión engarza con la postura de este Tribunal en la opinión consultiva que evacuó la consulta sobre el proyecto de ley de Fortalecimiento de las Finanzas Públicas (expediente n.° 18-016546-0007-CO), en la que la Sala Constitucional sentó el concepto del Estado social de derecho posible, es decir, aquel que el Estado puede financiar de acuerdo con los recursos disponibles en un momento histórico determinado. Estas posturas -tanto de los instrumentos internacionales como de la Sala Constitucional-, resultan especialmente relevantes cuando se trata de la sostenibilidad de los regímenes de jubilaciones y pensiones. En este ámbito el principio pro fondo, es decir, los derechos de la colectividad, están por encima de cualquier interés particular o de grupo, de ahí el deber del Estado y sus instituciones en diseñar, adoptar y ejecutar políticas públicas para darle sostenibilidad financiera y actuarial a estos regímenes, de forma tal que se le garantice de manera efectiva a todos los jubilados y pensionados sus ingresos mes a mes conforme a lo dispuesto en las respectivas leyes o acuerdos de los órganos colegiados –como sucede con el IVM–. Quiere esto decir, que la sostenibilidad financiera y actuarial de los regímenes de jubilaciones y pensiones está en plena sintonía con los instrumentos internacionales, pues gracias a esto se garantiza el derecho fundamental de la jubilación o de la pensión como garantía de un derecho social y económico mayor, como lo es el de la seguridad social.

En otro orden de ideas, también es necesario tener presente que la invocación de instrumentos internacionales de derechos humanos para que sean vinculantes para el Estado de Costa Rica pasan por un requisito sine qua non: que estén ratificados, lo que supone, con base en el Derecho de la Constitución, su negociación y firma por parte del Poder Ejecutivo, su aprobación por parte de la Asamblea Legislativa, su ratificación por el Poder Ejecutivo y su entrada en vigencia de acuerdo con las normas del convenio internacional. Es importante tener presente lo que dispone el numeral 1° de la Ley de la Jurisdicción Constitucional, en el sentido de que en esta se tutelan los derechos humanos que se derivan de los instrumentos internacionales vigentes en el Estado de Costa Rica. En esta dirección, la norma es clara y precisa; de esta no se puede derivar una conclusión diferente, salvo que se quiera actuar a contrapelo de su ethos. Esta cuestión tiene la mayor relevancia para el Estado de Costa Rica en múltiples vertientes. En primer lugar, al Estado de Costa Rica no se le puede achacar la vulneración de un instrumento internacional de derechos humanos cuando este no ha sido ratificado. Una posición en sentido contrario no tendría ninguna acogida en ningún tribunal internacional, e iría en contra de la doctrina más básica del derecho internacional público. En segundo término, cuando no existe ninguna obligación internacional no es posible invocar tratados no ratificados por el Estado de Costa Rica, derivando de estos un determinado derecho. Mal haría este Tribunal en acoger una tesis en esa dirección, pues estaría usurpando las atribuciones que el Derecho de la Constitución le otorga al Poder Ejecutivo y al Legislativo, de ahí que no es posible afirmar que se está vulnerando una norma de un tratado no ratificado, por lo que en lo que atañe a este argumento, la mayoría de este Tribunal considera que debe ser rechazado. Finalmente, hay que tener presente que cuando la Constitución le atribuye a la Asamblea Legislativa la aprobación de los tratados internacionales, con excepción de los protocolos de menor rango que se derivan de estos, lo que está sentado es un instituto jurídico vinculado a la democracia, ya que lo que en fondo subyace es que la Asamblea Legislativa, órgano fundamental del Estado social y democrático de derecho –no hay democracia sin parlamento– ejerza un control democrático sobre los compromisos que asume el Estado costarricense ante la comunidad internacional. Lo que se busca en un asunto de tanto calado, es que se discuta en un órgano plural, representativo, abierto, de cara a los habitantes del país, y de esa forma, adoptar la mejor decisión para los intereses nacionales. A partir de esta decisión del parlamento y de la sanción y publíquese por el Poder Ejecutivo es que este Tribunal puede adoptar las normas de los convenios internacionales de derechos humanos, no antes.

Otro aspecto que no puede dejar de lado la mayoría del Tribunal es el hecho de que no basta con hacer una invocación de una serie de instrumentos internacionales ratificados por Costa Rica y con citar sus normas, alegando una eventual violación, pues es necesario que quien tal cosa hace, demuestre que efectivamente la norma dice lo que dice. Tampoco resulta jurídicamente procedente el citar normas de convenios internacionales que se refieren o que regulan otras materias, pues las que se citan han de referirse a la materia objeto de la litis, ya que en estos ámbitos rige el principio de especialidad.

En el sub lite, en la acción de inconstitucionalidad n.°19-024589-0007-CO se acusa una infracción a los artículos 26 de la Convención Americana sobre Derechos Humanos, 14 del Pacto Internacional de Derechos Civiles y Políticos y 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales, aunque luego, al momento de desarrollarse los respectivos agravios de inconstitucionalidad, únicamente se hace expresa referencia al ordinal 26 de la Convención Americana sobre Derechos Humanos, no así en cuanto a los otros dos numerales, respecto de los que no se realiza mayor desarrollo argumentativo, salvo una mención genérica al derecho a la seguridad social. En cuanto al artículo 26 de la Convención Americana sobre Derechos Humanos, ya se expuso –en este mismo apartado– cuál debe ser su debida comprensión en el sub judice. Respecto al derecho a la seguridad social, debe reiterarse lo ya indicado –también en este apartado, así como en los anteriores–, en el sentido que la norma impugnada –como parte de la reforma realizada al Régimen de Jubilaciones y Pensiones del Poder Judicial, y con el efectivo y comprobado propósito de garantizar su sostenibilidad financiera y actuarial, con sustento en los respectivos criterios técnicos–, lejos de infringir tal derecho lo garantiza efectivamente. Lo mismo debe indicarse respecto de la acción n.°22-014613-0007-CO, en la que también se acusa la infracción al artículo 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales.

Por otra parte, tanto en el escrito de interposición de la acción de inconstitucionalidad n.°19-024589-0007-CO, como de la acción de inconstitucionalidad n.°22-014613-0007-CO, se alega una infracción a los Convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo. Sin embargo, en el caso de la primera acción, lo cierto es que no se realiza mayor análisis o desarrollo argumentativo, debidamente individualizado, relativo a la supuesta infracción de tales convenios. Tan solo se hace una mención genérica a que la Organización Internacional de Trabajo ha indicado la necesidad de contar con el adecuado criterio técnico para poder realizar una variación en un régimen de pensiones. Similar situación se da respecto de la segunda acción, pues, pese a un alegato genérico a la infracción de tales instrumentos, finalmente los reproches de los accionantes se limitan –esencialmente– a alegar que los Convenios 102 y 128 contemplan el derecho a la jubilación y que los Convenios 118 y 157 prevén que los Estados deben “esforzarse en participar en un sistema de conservación de derechos adquiridos y derechos en vía de adquisición”. Se argumenta, al efecto, que el transitorio cuestionado se dictó sin tutelar los derechos en vías de adquisición de una manera escalonada y proporcionada y sin un estudio técnico que así lo exigiera, por lo que la decisión legislativa resulta arbitraria. En cuyo caso, todos estos reproches ya fueron debidamente resueltos en los apartados anteriores. Según se indicó, el derecho de pertenencia a un régimen de pensiones no puede confundirse con la no modificación de los beneficios jubilatorios y de pensiones que en un momento determinado se otorga a la persona, lo cuales, pueden ser modificados razonablemente cuando los estudios actuariales así lo exigen. En el sub lite, tanto la reforma general al Régimen de Pensiones y Jubilaciones del Poder Judicial mediante Ley n.°9544, así como, específicamente, el plazo de 18 meses previsto en su transitorio VI, contó con una justificación objetiva y razonable, sustentada en un estudio técnico, a fin de darle sostenibilidad financiera y actuarial al respectivo régimen.

Como corolario de lo anterior, también procede desestimar la acción en cuanto a este apartado.

• K)LA VIOLACIÓN DEL PRINCIPIO DE IGUALDAD.

El principio de igualdad implica, tal y como lo ha reconocido la Sala Constitucional en múltiples resoluciones, que todas las personas que se encuentran en una misma situación deben ser tratadas en forma igual. Por otra parte:

“El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que pueda existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho la Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que deba existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohibe que se contemplen soluciones distintas ante situaciones distintas, como tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva” (véanse los votos n.°1770-94 y n.°1045-94).

El punto está en determinar si esta diferenciación de trato está fundada en fines legítimos constitucionalmente, en si es objetiva –es decir, si está sustentada en un supuesto de hecho diferente–, si está basada en diferencias relevantes (tertium comparationis), si existe proporcionalidad entre el fin constitucional y el trato diferenciado que se ha hecho y el motivo y el contenido del acto y si ese trato es idóneo para alcanzar el fin que se persigue.

En el primer supuesto, la diferencia de trato supone que esté basada en objetivos constitucionalmente legítimos, lo que conlleva tres consecuencias en la finalidad perseguida. En primer lugar, las leyes no pueden perseguir fines que contradigan el Derecho de la Constitución o las normas que se encuentran en los instrumentos internacionales de Derechos Humanos. En segundo término, cuando se persiguen fines no tutelados constitucionalmente, pero que no contradicen sus valores y principios, la diferenciación de trato debe ser estrictamente vigilada en relación con los supuestos de hecho que la justifican y la finalidad que persigue. Por último, cuando se persigue un fin constitucionalmente tutelado la diferenciación de trato será válida siempre y cuando respete los criterios de razonabilidad, proporcionalidad y sea necesaria.

La Sala Constitucional, en el voto n.°4883-97, expresó sobre este principio, lo siguiente:

“El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que puedan existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho esta Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que debe existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohibe que se contemplen soluciones distintas ante situaciones distintas, con tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva.’ (Sentencia número 6832-95 de 16:15 horas del 13 de diciembre de 1995).” (Las negritas no corresponden al original).

Existen motivos suficientes para sostener que no hay un quebranto al principio de igualdad y no discriminación, tal y como se alega. En primer lugar, no hay duda alguna que con la norma impugnada el legislador busca satisfacer un fin constitucional legítimo, como lo es el darle sostenibilidad al régimen especial de jubilaciones y pensiones del Poder Judicial y con ello garantizar el derecho fundamental de las personas a una jubilación o pensión digna. En segundo lugar, tal y como lo establece el estudio actuarial en el producto seis, hay una justificación objetiva y razonable para que la Asamblea Legislativa adoptara la norma que ahora se cuestiona, de ahí que tampoco se puede sostener jurídicamente que se quebrante el principio de igualdad y no discriminación. En tercer término, no hay duda alguna de quienes están dentro del supuesto de los dieciocho meses a partir de la entrada en vigencia de la ley están en una situación diferentes de quienes no lo están, por ello, al estar ante situaciones fácticas diferentes el trato jurídico debe ser diferente. Finalmente, siguiendo la tesis jurisprudencial de esta Sala, en el sentido de quien invoca la violación al principio de igualdad y no discriminación le corresponde realizar el test de razonabilidad, de los argumentos que aportan los accionantes no se desprende, por ninguna parte, de que se demuestra una vulneración en esta dirección.

En particular, los accionantes (acción n.°19-024589-0007-CO) alegan que en el caso de modificaciones normativas a otros regímenes jubilatorios existentes en Costa Rica se habían incluido normas transitorias con plazos mayores o escalonados, a diferencia de lo sucedido en el caso del VI de la Ley n.°9544, en el que se estableció un único plazo de 18 meses, que estiman excesivamente corto. Alegan que esto resulta discriminatorio. Sin embargo, debe reiterarse lo previamente señalado en los apartados anteriores, en el sentido que el citado plazo de 18 meses se fijó de forma razonable en atención a la situación financiera específica del Régimen de Pensiones y Jubilaciones del Poder Judicial. Tampoco puede pretenderse que en el caso de los distintos regímenes de pensiones y sus eventuales modificaciones se regulen de forma estrictamente idéntica, con total independencia u abstracción de las particularidades de cada régimen. Esta Sala ha precisado -sobre este tema- que:

“(...) no resulta inconstitucional la existencia de diversos regímenes de pensiones –incluido, específicamente, el régimen de pensiones y jubilaciones del Poder Judicial-, con “su normativa especial –en procura de garantizar la existencia misma del régimen, así como su propia administración-” (voto nro. 2020-02841 de las 9:40 horas del 12 de febrero de 2020) y con sus “propias reglas y criterios legales para el otorgamiento del derecho constitucional a la jubilación y a la pensión” (voto nro. No. 2084-96 de las 14:30 hrs. del 07 de mayo de 1996). Criterio reiterado, recientemente, en el voto nro. 2021-011957 de las 17:00 horas del 25 de mayo de 2021, en que se confirmó la validez constitucional de la existencia de un régimen exclusivo para los trabajadores del Poder Judicial, como un régimen especial, independiente y diferente al básico, con sus propios requisitos de elegibilidad a fin de garantizar su solvencia y funcionamiento. Lo que no implica una infracción al principio de igualdad.” (voto n.° 2022-010593).

Los accionantes (acción n.°19-024589-0007-CO) también reclaman que se les dio un trato discriminatorio, respecto de los funcionarios que laboran en el Tribunal Supremo de Elecciones, en tanto -según se alega- a estos últimos se les declaró un derecho irrestricto de reconocimiento de sus condiciones jubilatorias, aun y cuando se está en presencia de normativa derogada, sin importar el tiempo que durasen en cumplir aquellos requisitos. Lo anterior, en el Transitorio II de Ley n.°9544. Sin embargo, esta Sala ya se pronunció sobre este tema en el supra citado voto n.°2021-11957, en el que se resolvió que:

“LXIII.-Redacta la Magistrada Hernández López. Sobre el reclamo contra el Transitorio II de la Ley No. 9544.- La norma transitoria II de la Ley número 9544 estipula lo siguiente:

“TRANSITORIO II- Las personas funcionarias del Tribunal Supremo de Elecciones a los que hacía referencia el artículo 242 de la Ley N° 7333 Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas, que hayan cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial de previo a la entrada en vigencia de esta ley, la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe. No obstante, quedan facultados para solicitar, en los términos dispuestos en los artículos 226 y 234 de esta ley, la devolución de las cotizaciones obreras, estatales y patronales realizadas al Fondo de Jubilaciones y Pensiones del Poder Judicial, a fin de que puedan trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte, administrado por la Caja Costarricense de Seguro Social (CCSS), si así lo desean”.

Los accionantes argumentan que se da un trato discriminatorio en perjuicio de los servidores judiciales en lo que se refiere al tratamiento de los derechos adquiridos frente a los funcionarios del Tribunal Supremo de Elecciones que cotizan al Régimen de Pensiones y Jubilaciones del Poder Judicial. Contrastan el distinto tratamiento que hizo el legislador en relación al tema de los derechos adquiridos pues, sin ninguna razón objetiva que lo justifique, se dispuso un trato diferenciado y ventajoso para aquellos servidores que, perteneciendo al Régimen de Pensiones y Jubilaciones del Poder Judicial, trabajen en el Tribunal Supremo de Elecciones, pues a ellos se les declaró un derecho irrestricto de pertenencia a aquel régimen, pero sobre la base de la normativa derogada, sin importar el tiempo que durasen en cumplir aquellos requisitos. Se dice que la norma transitoria es totalmente discriminatoria al distinguir entre los afiliados del Régimen de Jubilaciones y Pensiones del Poder Judicial, de modo que algunos de ellos son los que laboran para el Poder Judicial y otros son los que trabajan para el Tribunal Supremo de Elecciones, pero estos últimos contarán con mayores beneficios que los otros. En relación con esa diferenciación, los accionantes se cuestionan la necesidad de esta diferencia solicitando entonces que se declare la inconstitucionalidad del Transitorio II de la Ley número 9544 por violación del principio de igualdad y no discriminación contenido en el artículo 33 de la Constitución Política. En relación con este específico aspecto no existe pronunciamiento por parte de los informantes en esta acción.

LXIV.- Continúa redactando la Magistrada Hernández López. La cuestión que aquí se plantea, fue revisada por la Sala con ocasión de la consulta legislativa facultativa presentada en su momento por integrantes de la Asamblea Legislativa en relación con el proyecto que dio origen a la Ley número 9544. En la sentencia 2018-5758, en la que se dio respuesta a dicha consulta, la Sala expuso lo siguiente:

“XX.- Sobre el transitorio II del proyecto de ley consultado. Finalmente, los(as) consultantes estiman que el transitorio II del proyecto consultado resulta contrario al numeral 33 constitucional, en tanto establece un privilegio para los(as) funcionarios(as) del Tribunal Supremo de Elecciones. Dicha norma dispone lo siguiente:

TRANSITORIO II- Las personas funcionarias del Tribunal Supremo de Elecciones a los que hacía referencia el artículo 242 de la Ley N.°7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas, que hayan cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial de previo a la entrada en vigencia de esta ley, la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe. No obstante, quedan facultados para solicitar, en los términos dispuestos en los artículos 226 y 234 de esta ley, la devolución de las cotizaciones obreras, estatales y patronales realizadas al Fondo de Jubilaciones y Pensiones del Poder Judicial, a fin de que puedan trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte, administrado por la Caja Costarricense de Seguro Social (CCSS), si así lo desean.

Previo a analizar el vicio cuestionado, la Sala considera necesario hacer referencia a los conceptos de derechos adquiridos y situaciones jurídicas consolidadas. Sobre el particular, en la sentencia número 2765-97 de las 15:03 del 20 de mayo de 1997, se dispuso, en lo que interesa, lo siguiente:

“Los conceptos de ‘derechos adquiridos’ y ‘situaciones jurídicas consolidadas’ aparecen estrechamente relacionadas en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en lo que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la ‘situación jurídica consolidada’ representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante en cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo ‘si…, entonces…M, vale decir: si se ha dado el hecho condicionante, entonces la ‘situación jurídica consolidada’ implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derechos adquiridos o situaciones jurídicas consolidadas), el ordenamiento protege –tornándola intangible – la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y certeza jurídica”.

Ahora bien, del estudio de la norma cuestionada se desprende que no presenta el vicio alegado, pues, contrario a lo que parecen entender los(as) consultantes, ésta no pretende crear a favor de los(as) funcionarios(as) del Tribunal Supremo de Elecciones una situación diferenciada con respecto a los demás cotizantes del Fondo, sino únicamente tutelar aquellos derechos adquiridos de buena fe. En ese sentido, el transitorio no dispone de modo alguno que la reforma que se hace al Régimen de Pensiones y Jubilaciones del Poder Judicial no les sea aplicable a los(as) funcionarios(as) a los que hace referencia, pues éstos también se verán afectados por ésta, siendo prueba de ello el hecho de que el propio artículo les otorga la posibilidad de trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, en caso de que lo deseen. En virtud de lo anterior, la Sala descarta que el numeral cuestionado otorgue a los(as) servidores(as) del Tribunal Supremo de Elecciones un derecho adquirido a permanecer bajo las condiciones actuales del Régimen de Pensiones y Jubilaciones del Poder Judicial, por lo que se descarta el alegato de los(as) consultantes.” (2018-5758 del 12 de abril de 2018) Esta vez, quienes plantean el reclamo representan a gran cantidad de los participantes del Fondo de Jubilaciones y Pensiones del Poder Judicial y aportan razones y argumentos para sostener que, contrario a lo entendido por la Sala en aquel momento, el texto sí crea un tratamiento diferente que amerita ser revisado de nuevo por entender que contraviene el principio de igualdad.

LXV.- Redacta la Magistrada Hernández López. Sobre el Transitorio II de la Ley 9544 y los principios de igualdad y no discriminación. Como un primer elemento importante para sustentar esta decisión, debe tenerse presente lo que disponía el artículo 242 de la Ley Orgánica del Poder Judicial número 7333 previo a su reforma, toda vez que el transitorio II impugnado hace referencia a ese numeral:

“ARTICULO 242.- Los Magistrados del Tribunal Supremo de Elecciones y el Director del Registro Civil que antes de su elección hayan sido abogados funcionarios judiciales, con un servicio mayor de cinco años, podrán permanecer protegidos con el Plan de Jubilaciones y Pensiones de esta Ley, y el tiempo que sirvieren en esos organismos se les computará como si lo fuera en el Poder Judicial. Continuarán esos funcionarios contribuyendo en la forma que lo exige el artículo 236 de esta Ley. Dichos Magistrados tendrán los mismos beneficios que los Magistrados de la Corte Suprema de Justicia, y el Director del Registro, los beneficios señalados para los jueces, en igualdad de circunstancias. El Estado, en esos casos, debe pagar por esos funcionarios la cuota que señala el inciso 2 del artículo 236 citado, sobre la suma destinada en el presupuesto general de gastos para atender sus sueldos en el Tribunal Supremo de Elecciones y en el Registro Civil. Esta cuota será depositada conforme se indica en el referido inciso 2”.

La revisión de los antecedentes muestra que esta norma se incluyó en la reforma general realizada en el año 1993 a la Ley Orgánica del Poder Judicial y recogió un caso de excepción para aquellos abogados funcionarios judiciales que, con al menos cinco años de servicio en el Poder Judicial y cotización para el régimen de jubilaciones y pensiones del Poder Judicial, fueran nombrados como Magistrados del Tribunal Supremo de Elecciones o en el cargo de Director del Registro Civil. Esa excepción consistió en abrir la opción para que los citados servidores públicos pudieran mantenerse como participantes en el régimen de Jubilaciones y Pensiones del Poder Judicial -para el cual habían estado cotizando por al menos cinco años- siempre que siguieran pagando su cuota correspondiente y se estableció que tendrían los mismos beneficios de los Magistrados del Poder Judicial y de un juez para el caso del Director del Registro Civil. También se ordenó al Estado presupuestar y depositar los dineros correspondientes a su contribución, según los sueldos percibidos en el Tribunal Supremo de Elecciones. Se concluye de aquel texto que quienes optaran en su momento por permanecer como participantes del régimen del Poder Judicial, lo hacían en los mismos términos y condiciones que los demás participantes es decir, por una parte “(c)ontinuarán esos funcionarios contribuyendo en la forma que lo exige el artículo 236 de esta Ley…” en palabras de la norma, y por otra, en lo que se refiere a los beneficios del régimen, se ordenó que: “Dichos Magistrados tendrán los mismos beneficios que los Magistrados de la Corte Suprema de Justicia, y el Director del Registro, los beneficios señalados para los jueces, en igualdad de circunstancias” Ahora, al emitirse la Ley número 9544 donde se modificó extensamente el régimen de Jubilaciones y Pensiones del Poder Judicial, el Legislativo, y entre otras cosas, aumentó las cargas de los participantes y redujo los beneficios a percibir, todo en favor de la sostenibilidad del régimen. Y se introdujo además una norma transitoria II en donde mantiene abierta la posibilidad otorgada en 1993 para que los servidores supra citados puedan trasladar sus cuotas al régimen de Invalidez Vejez y Muerte de la Caja Costarricense del Seguro Social, o bien permanecer como participantes en el régimen del Poder Judicial; no obstante, si decidieran permanecer como participantes del Fondo del Poder Judicial, se agrega una condición que no existe para los demás participantes del Fondo y es que tendrían en su favor el hecho de que: “ la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe.”.

Es en este último punto donde los accionantes encuentran un disposición discriminatoria, pues sostienen que para ellos, como servidores judiciales, rige el transitorio VI de la Ley número 9544 que define la situación de los funcionarios judiciales activos que han venido cotizando del Fondo y en el que se deslinda quienes quedan cubiertos por la ley derogada (o sea aquellos a quienes la nueva normativa no les será aplicada en su perjuicio) y a quienes se les aplicará la nueva normativa sin atenuaciones:

“TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.” Se concluye de lo anterior que -para efectos de determinar la normativa aplicable, se crearon dos categorías separadas de servidores en activo participantes del fondo: una compuesta por los servidores judiciales que “ cumplan los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley” y que podrán jubilarse con los requisitos del régimen anterior, y la otra compuesta por los demás servidores judiciales que no cumplan esa condición, para quienes procede la aplicación de la nueva normativa. Sin embargo, afirman los interesados, los servidores mencionados en el artículo 242 de la Ley derogada que decidan permanecer en el régimen de Jubilaciones y Pensiones del Poder Judicial, recibirán un tratamiento distinto pues se les ubicó en una tercera categoría diferente reflejada en la frase del transitorio II de la Ley número 9544: “la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe” LXVI.- Continúa redactando la Magistrada Hernández López. En los términos expuestos, la Sala concluye que la norma no es necesariamente inconstitucional pero sí es confusa y por lo tanto, debe interpretarse según lo establecido en el precedente de la Sala establecido recogido en la sentencia número 2018-5758, pues allí el Tribunal entendió que no podía darse una diferencia de tratamiento en favor de los servidores mencionados en el artículo 242 de la Ley Orgánica del Poder Judicial, ya que:

“…contrario a lo que parecen entender los(as) consultantes, ésta no pretende crear a favor de los(as) funcionarios(as) del Tribunal Supremo de Elecciones una situación diferenciada con respecto a los demás cotizantes del Fondo, sino únicamente tutelar aquellos derechos adquiridos de buena fe. En ese sentido, el transitorio no dispone de modo alguno que la reforma que se hace al Régimen de Pensiones y Jubilaciones del Poder Judicial no les sea aplicable a los(as) funcionarios(as) a los que hace referencia, pues éstos también se verán afectados por ésta, siendo prueba de ello el hecho de que el propio artículo les otorga la posibilidad de trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, en caso de que lo deseen.” (Sentencia número 2018-5758 citada) Así, pues, la mayoría de este Tribunal coincide en que la interpretación correcta de la frase “esta reforma no se aplicará” llevaría a entender que se refiere a las personas que han consolidado su derecho a la jubilación o la pensión, mas no así cuando la persona activa no ha cumplido los requisitos jubilatorios, pues a estos últimos se les aplica en toda su extensión las reformas introducidas en la ley que se impugnada, de ahí que las personas que caen en este último supuesto están en la mismas condiciones que los trabajadores activos del Poder Judicial, por lo que no hay un quebranto al principio de igualdad.

A mayor abundamiento, debe señalarse que la simple mención y referencia a derechos adquiridos en el citado transitorio II no resulta constitucionalmente ilegítima o contraria al principio de igualdad si se entiende que dicha expresión debe comprenderse en el contexto y sentido descritos en el considerando pertinente de la sentencia 2018-5758, es decir, que los servidores mencionados en el Transitorio II discutido gozan de derechos adquiridos como participantes en el Fondo de Jubilaciones y Pensiones del Poder Judicial, pero con el mismo alcance y en pie de igualdad con los demás participantes que laboran directamente para el Poder Judicial. Por ello, la simple afirmación de que a los servidores mencionados en el artículo transitorio II disputado se les respetarán sus derechos adquiridos, no ha creado una categoría diferente frente a los demás participantes del fondo, porque por imperativo constitucional a todos los participantes sin excepción, según sea el caso y aunque no se diga de forma expresa, se les deben respetar sus derechos adquiridos en los términos y condiciones que este Tribunal ha señalado a través de su jurisprudencia, para la materia previsional. En ese específico sentido, la mera mención en abstracto del respeto de los derechos adquiridos para un grupo de participantes no conlleva en absoluto un cambio real en sus derechos y obligaciones que los distinga de los demás participantes, tal y como se expuso en la consulta legislativa 2018-5758.” L) VIOLACIÓN DE LOS PRINCIPIOS DEMOCRÁTICO, SOLIDARIDAD, SEGURIDAD JURÍDICA, BUENA FE, EQUIDAD, TRANSPARENCIA, INTANGIBILIDAD RELATIVA DEL PATRIMONIO, NO CONFISCATORIEDAD E IGUALDAD ANTE LA CARGAS PUBLICAS. Los accionantes también alegan una infracción a tales principios; no obstante, de la lectura integral de los dos escritos de interposición, se puede verificar que, finalmente, sus alegatos gravitan en un mismo reproche, en cuanto alegan que se dio un cambio abrupto, severo, discriminatorio y arbitrario en cuantos los requisitos y beneficios de la jubilación, que afecta gravemente su proyecto de vida, pese que estaban a pocos años de adquirir el derecho concreto a la pensión. Sin embargo, tal alegato ya ha sido analizado y desestimado en los anteriores apartados, al concluirse que el actuar de la Asamblea Legislativa no ha sido arbitrario ni carente de sentido, sino que, todo lo contrario, ha contribuido válidamente a darle sostenibilidad al régimen jubilatorio del Poder Judicial, en debido apego a los principios constitucionales de proporcionalidad y razonabilidad y en oportuno resguardo del propio derecho a la seguridad social. También se ha estimado que no se han infringido los principios de confianza legítima, ni se han vulnerado los derechos en vías de adquisición de los trabajadores judiciales que tenían 20 o más años de pertenecer al régimen especial, dado que al fijarse el plazo de 18 meses en el Transitorio VI, la Asamblea Legislativa se apegó a los reiterados antecedentes de este Tribunal y actuó dentro de parámetros razonables, con debido y suficiente sustento en los criterios técnicos incorporados al expediente legislativo.

• M)COLOFÓN.

En definitiva, debe reiterarse que la mayoría de este Tribunal, en la supra citada sentencia nro.2021-11957, ya resolvió que la reforma al régimen jubilatorio del Poder Judicial –realizado mediante Ley nro. 9544 del 24 de abril de 2018– y, en general, la modificación a los requisitos y condiciones impuestas a los servidores judiciales para acogerse a la jubilación ordinaria y anticipada, lejos de resultar arbitraria, caprichosa, infundada o discriminatoria, obedeció a la necesidad real de garantizar la solvencia del Fondo de Jubilaciones y Pensiones del Poder Judicial, así como que tales cambios fueron realizados dentro “dentro del marco constitucional legítimo de acción del legislador en materia jubilatoria”, con fundamento en un “adecuado sustento técnico”. Concluyó, la mayoría de este Tribunal, que tales modificaciones en los requisitos y parámetros para el otorgamiento de las jubilaciones -tanto ordinarias como anticipadas- de los servidores judiciales eran constitucionalmente válidas, como medidas razonables y proporcionadas para garantizar la solvencia, estabilidad y permanencia del fondo, en atención a los criterios técnicos aportados al respectivo expediente legislativo. Indicó, en síntesis:

“(...) los cambios operados resultaban necesarios justamente para lograr el sostenimiento del régimen de jubilaciones y pensiones especial para los servidores judiciales y cuya debacle realmente hubiera significado una seria amenaza a la estabilidad económica de los administradores de justicia. Igual de importante para desechar el reclamo resulta ser el hecho de que las modificaciones legislativamente establecidas no resultan de arbitrios infundados de los legisladores, sino que fueron tomadas con fundamento en criterios técnicos, con amplia participación de las personas interesadas y no fueron ni intempestivos caprichosos y se basan en criterios técnicos. En ese aspecto, la Sala considera que el nuevo régimen previsional, en cuanto primer pilar del más amplio entramado de seguridad social que cubre a los administradores de justicia de forma similar a los demás trabajadores, les asegura un espacio de seguridad económica.”

En plena consonancia con lo anterior, debe insistirse -una vez más- que el plazo de 18 meses previsto en el transitorio impugnado, no solo se fundamenta -de forma razonable- en la amplia jurisprudencia de este Tribunal sobre este tema, sino que también en los criterios técnicos incorporados al expediente legislativo y, en definitiva, resulta coherente o congruente con el fin último de la reforma, de garantizar la solidez financiera del régimen y el derecho a la jubilación de los servidores judiciales.

VIII.- VOTO SALVADO DEL MAGISTRADO CRUZ CASTRO.- La variación de las condiciones del régimen jubilatorio, debe responder a criterios de razonabilidad y proporcionalidad, conforme a criterios técnicos.

Conforme a las razones que se indican a continuación, considero que esta acción debe declararse con lugar. Considero que para ser conforme al Derecho de la Constitución, el régimen transitorio debió cubrir a los servidores judiciales que contaran con veinte años o más de servicio en el Poder Judicial. Estimo, además, que el proyecto de ley que dio origen a la ley en cuestión contiene vicios sustanciales de procedimiento y de fondo.

A. La ausencia de criterio técnico en la decisión legislativa, conculca el principio constitucional de razonabilidad técnica.

Los accionantes llevan razón en sus alegatos, en este caso se ha dado una violación procedimental por la falta de criterio técnico para proceder con un plazo en una norma transitoria restrictiva del derecho a la pensión (violación al principio constitucional de razonabilidad técnica), y además con ello, una violación a los principios de derecho a la pensión, principio de progresividad y principio de igualdad; todo conforme se explica a continuación. Debe existir prudencia y buen criterio del poder legislativo al reformar los sistemas de jubilación, porque se trata de uno de los componentes neurálgicos del estado social.

1.-) En jurisprudencia constitucional, esta Sala ha venido dictando varias resoluciones en donde se sientan las bases de lo que se entiende por el Principio Constitucional de Razonabilidad Técnica, definido como la proporcionalidad entre los medios elegidos y los fines propuestos, el cual permite evitar que la ley sea irracional, arbitraria o caprichosa, pero además, que los medios seleccionados tengan una relación real y sustancial con su objeto (ver resolución n°1992-1739[[]1], n°2018-15966[[]2], n°2021-11957[[]3], entre otras). Dicho principio se constituye así en un parámetro constitucional (ver resolución n°2001-732[[]4]). Parámetro que permite concluir constituye un vicio esencial de procedimiento legislativo. la ausencia de criterio técnico (véase la resolución n°2012-13367[[]5] y n°2017-11714[[]6], ésta última cuando indica: “este Tribunal ha exigido en materia ambiental la necesidad de que haya estudios técnicos para reducir áreas protegidas, y ha concluido que esta omisión constituye un vicio de carácter esencial en el procedimiento legislativo.”). El principio de razonabilidad técnica se aplica, tanto a potestades del Poder Ejecutivo (ver resolución n°2023-012575[[]7] donde se consideró que el Decreto 43810 “Reforma Reglamento de Personas Refugiadas”, al establecer como plazo máximo de un mes, para presentar la solicitud de protección internacional como persona refugiada, a partir del día de su ingreso al territorio costarricense, se acreditó una transgresión a los principios de razonabilidad, proporcionalidad y necesidad) como al Poder Legislativo (ver resolución n°2017-11714 donde se consideró que el proyecto de ley "Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional", expediente legislativo número 17.561, era inconstitucional … toda vez que carece de un estudio que determine técnica y científicamente cuál es el impacto real … vicio que se consideró de carácter esencial del procedimiento legislativo) y en cuanto a varias materias, entre ellas la ambiental (ver sobre el principio constitucional de objetivación de la tutela ambiental o principio de vinculación a la ciencia y la técnica en las resoluciones n°2022-23307[[]8] de las 13:40 horas del 25 de octubre del 2022, n° 2010-000075[[]9] de las 15:01 horas del 6 de enero de 2010, n°2012-013367[[]10] de las 11:33 horas del 21 de setiembre de 2012, n°2013-005964[[]11] de las 15:05 horas del 30 de abril de 2013 y n°2018-007978[[]12] de las 12:45 horas del 18 de mayo de 2018).

Se ha establecido que, en ciertas materias, las potestades legislativas deben estar vinculadas con las reglas unívocas de la ciencia o la técnica, principios elementales de justicia, lógica o conveniencia. Se trata de un límite al ejercicio arbitrario de las potestades legislativas. Claro está, no es que se requiera de un estudio técnico en cualesquiera casos de la función legislativa, pues ello vaciaría de contenido el principio de libre configuración del legislador. No todas las decisiones del legislador deben contemplar un estudio técnico, toda vez que dicha situación anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática. Sin embargo, esta Sala ha precisado que en ciertas materias ese estudio técnico o científico es necesario y por tanto, se ha entendido que la exigencia de tal sustento técnico, es parte del principio constitucional de razonabilidad técnica. Así ha dicho esta Sala que “Los estudios técnicos son necesarios, cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige, so pena de transformar la discrecionalidad en arbitrariedad.” (ver resolución n°2018-00230[[]13] de las 10:40 horas del 19 de enero del 2018). Ahora bien, sobre las materias en donde se exige, además de la ambiental, se puede indicar, por ejemplo, la aplicación del principio de razonabilidad técnica en materia de pensiones, ver al respecto la resolución n°2017-11714, donde se estableció lo siguiente, respecto del proyecto de ley "Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional", expediente legislativo número 17.561:

“En esta materia, es menester que la Asamblea Legislativa cuente con estudios técnicos que demuestren que la entrada en vigencia de la Ley no afectará (…)” (resaltado no corresponde al original) Asimismo, desde la resolución n°2379-96 ya esta Sala venía aplicando la obligatoriedad de sustento técnico para las modificaciones a los regímenes de pensiones:

“… esa posibilidad de modificación que tiene acordada a su favor el Estado, encuentra límites no sólo provenientes de la Constitución Política, sino del Derecho Internacional, entre los que se destacan los fijados en el Convenio número 102 de la Organización Internacional del Trabajo relativo a la norma mínima de seguridad social, que señala, en lo que aquí interesa, que las prestaciones concedidas en aplicación del citado Convenio y los gastos de administración se encuentren respaldados en estudios técnicos y no que sean implantados o modificados por una decisión política, arbitraria o antojadiza de la Administración, prestaciones entre las cuales se encuentra el monto de cotización para el régimen de pensiones por parte del empleado y el Estado como tal y como patrono y que obliga a fundamentar esas variaciones en estudios actuariales relacionados con la solvencia del régimen por afectar.”[[]14] (resaltado no corresponde al original) Además, esta Sala ha indicado que todas las medidas regresivas para el derecho a la pensión y la jubilación requieren de estudios técnicos y además, que la carga de la prueba de dichos estudios corresponde a los poderes públicos. Así se ha indicado en reiterada jurisprudencia:

“XV. (…) son los poderes públicos quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos, y que en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas, (…)” (ver resolución n°2018-5758[[]15], criterio ratificado en las resoluciones n°2021-11957[[]16], n°2022-8712[[]17], n°2022-10593[[]18]).

Según lo indicó esta Sala (ver resolución n°2019-00234[[]19]), todo lo anterior encuentra además sustento, en el artículo 71.3 del Convenio 102 de la Organización Internacional del Trabajo (OIT) cuando se indica que cada Estado tiene la responsabilidad de garantizar que cualquier modificación a las prestaciones de la seguridad social tenga de previo un estudio actuarial:

“Artículo 71 (…)

3. El Miembro deberá asumir la responsabilidad general en lo que se refiere al servicio de prestaciones concedidas en aplicación del presente Convenio y adoptar, cuando fuere oportuno, todas las medidas necesarias para alcanzar dicho fin; deberá garantizar, cuando fuere oportuno, que los estudios y cálculos actuariales necesarios relativos al equilibrio se establezcan periódicamente y, en todo caso, previamente a cualquier modificación de las prestaciones, de la tasa de las cotizaciones del seguro o de los impuestos destinados a cubrir las contingencias en cuestión.” Asimismo, esta Sala hizo referencia a lo resuelto por el Comité de Derechos Sociales del Consejo de Europa y al Tribunal Constitucional Colombiano, en los supuestos donde se admita la adopción de medidas regresivas en el ámbito de DESC (derechos económicos, sociales y culturales), indicando que:

“XXVIII.-Continúa redactando el Magistrado Araya García. (…) la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas debe haberse escuchado a los afectados porque se trata del ingreso que reciben en curso, como medio de subsistencia y en el cual se basa la gran parte de su proyecto de vida y de su derecho a una vejez digna.” (resolución n°2021-11957) En reforzamiento de lo indicado por esta Sala sobre la carga de la prueba técnica como obligación del Estado, se tiene además el caso Miranda Cortez, n°12.249 de la Comisión Interamericana de Derechos Humanos, donde se dijo:

“105. Cabe destacar que el desarrollo progresivo de los derechos económicos, sociales y culturales (DESC) conlleva para los Estados partes en la Convención Americana la obligación de no tomar medidas regresivas en lo relativo a tales derechos. En particular, el Comité del Pacto Internacional de Derechos Económicos, Sociales y Culturales de Naciones Unidas (PIDESC) ha indicado que no son permisibles las medidas regresivas adoptadas en relación con el derecho a la salud. (…) Asimismo, el Comité sostuvo que el Estado en cuestión tiene la carga de probar que esas medidas están debidamente justificadas por referencia a la totalidad de los derechos enunciados en el Pacto en relación con la plena utilización de los recursos máximos disponibles del Estado Parte”. (ver Naciones Unidas, Comité de Derechos Económicos, Sociales y Culturales, Observación General 3: La índole de las obligaciones de los Estados Partes, párrafo 1 del artículo 2 del Pacto, adoptada en el Quinto Período de Sesiones, 1990) 2.-) Asumiendo las premisas que se han expuesto, al examinar la ley impugnada en esta acción, debe indicarse que ya esta Sala procedió a examinar un alegato similar planteado en contra de la totalidad de la ley. Al respecto, esta Sala hizo una valoración GENERAL de dicho sustento técnico en la resolución n°2021-11957 donde se examinaron los argumentos de inconstitucionalidad presentados en contra de toda la ley n°9544. Así por ejemplo, en el considerando XXVIII se dijo lo siguiente: “la propuesta normativa consensuada por la Asamblea Legislativa recibió el aval de la entidad técnica, quien señaló la propiedad técnica de ese diseño finalmente adoptado mediante el informe IICE-186-2017…”. Luego, sobre el sustento técnico del salario de referencia para el cálculo de la pensión determinó que: “contrario a lo que se afirma en el escrito inicial, sí existe un criterio técnico que avala el parámetro fijado por el proyecto de ley con respecto al salario de referencia para el cálculo de la pensión, el Tribunal descarta la existencia del vicio acusado.” (ver resolución n°2021-11957). Ahora bien, resulta necesario expresar sobre el tema DOS importantes observaciones:

-En primer lugar, el sustento técnico al que alude la Sala lo fue para un proyecto que NO fue el finalmente aprobado. Véase las fechas de cada uno de los seis dictámenes del “Estudio actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” realizado por el Instituto de Investigaciones en Ciencias Económicas (IICE): dictamen 1 del 04 de agosto del 2016, dictamen 2 del 14 de noviembre del 2016, dictamen 3 del 01 de febrero del 2017, dictamen 4 del 24 de marzo del 2017, dictamen 5 del 22 de mayo del 2017 y dictamen 6 del 04 de julio del 2017. Lo anterior, en comparación con la fecha del primer debate que se dio mediante sesión extraordinaria n°14 del 30 de octubre del 2017, cuyo texto incorporó varias mociones de fondo y de reiteración que variaron su contenido.

-En segundo lugar, esta Sala NO ha realizado ninguna consideración PARTICULAR sobre el criterio técnico que sustenta el Transitorio VI de la ley impugnada, referido a quienes podrían seguir cubiertos por el régimen anterior a la reforma. Así entonces, tal estudio actuarial del IICE NO se refiere en particular a la medida regresiva adoptada en el transitorio cuestionado en esta acción, pues al respecto indica: “Un aumento en el transitorio pospone los ajustes y por lo tanto afecta negativamente los ingresos del Fondo. Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo.” (ver página 73 del producto n°6, IICE). De modo tal que se constata que no se hizo ningún estudio técnico para valorar el aumento en el transitorio, situación que impidió verificar si existía otra medida menos gravosa que la adoptada en dicho transitorio. Por lo tanto, lo indicado por esta Sala, en el sentido de que la ley en cuestión contaba con estudio técnico, NO se aplica en concreto al transitorio.

Además, de lo acontecido en la vista realizada para esta acción (en fecha 05 de octubre del 2023), quedó demostrado que el Transitorio cuestionado no contó con criterio técnico alguno. Así se evidencia de lo siguiente:

“El estudio del IICE analizó la situación actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial (FPJPJ) según la situación vigente al 31 de diciembre de 2015” (oficio IICE-103-2023 de 9 de junio de 2023 entregado en la Sala el 9 de junio de 2023). “Los resultados del estudio del IICE de la Universidad de Costa Rica presentan los posibles efectos actuariales de diversas propuestas, con información hasta diciembre de 2015. No obstante, la reforma en la Ley 9544 no fue evaluada en ninguno de estos análisis” (Oficio Acta de Comisión Adhoc EMat-50-2023 de 11 de agosto de 2023 aportado a la Sala el 25 de agosto de 2023). En oficio de la UCR entregado a la Sala el 5 de octubre de 2023 se indica:

“En ese sentido queremos reafirmar lo dispuesto por la Escuela de Matemática en el sentido que la citada ley no se apegó en su momento a ningún modelo actuarial para establecer el transitorio que se está accionando. Por tanto, habría que modelar si se quisiera tener certeza de la seguridad técnica para establecer dicho transitorio” 3.-) Otro aspecto que requiere el análisis de la razonabilidad técnica del Transitorio VI, se refiere a un principio importante: la carga de la prueba de las medidas restrictivas o regresivas de derechos sociales debe provenir de la misma Administración Pública, en este caso, de la Asamblea Legislativa. Si bien es cierto esta Sala indicó que: “una declaración de inconstitucionalidad en este caso, requiere de la aportación de elementos de juicio que logren demostrar la ausencia de proporcionalidad y razonabilidad de emplear el plazo de 18 meses fijado por la jurisprudencia constitucional a partir de la vigencia de la reforma, para la extensión del ámbito de cobertura del régimen previsional anterior.” (resolución n°2021-11957). Empero, si se pretende ser consecuente con lo establecido en jurisprudencia anterior, considero claro que, por un lado, debió contarse con el criterio técnico de previo a la aprobación del transitorio VI (así se dijo en el referido voto n°2021-11957: “la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas.”), y por otro lado, la carga de la prueba debió aportarla la Asamblea Legislativa, cosa que no se hizo, porque no existe tal criterio técnico y así lo reconocieron. Los poderes públicos son quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos, y que en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas. Se constata que la Asamblea no contó con criterio técnico particular para el Transitorio VI impugnado, según la respuesta a la prueba solicitada por esta Sala y ante la pregunta concreta al Presidente del Órgano Parlamentario:

“Sala Constitucional de la Corte Suprema de Justicia. San José, a las diez horas cuarenta y cinco minutos del veintiséis de mayo de dos mil veintitrés.

Como prueba para mejor resolver, solicítese:

• A)Visto el informe del Presidente de la Asamblea Legislativa … se solicita: Indicar y aportar a esta Sala, en concreto, el criterio técnico en que se basó la Asamblea Legislativa para establecer el plazo de 18 meses que indica en el Transitorio VI de la Ley de Reforma del régimen de jubilaciones y pensiones del Poder Judicial, n°9544. Donde se demuestre la razonabilidad de ese plazo.

(…)

Quien suscribe… en mi condición de Presidente de la Asamblea Legislativa de la República de Costa Rica, presento, en tiempo, el informe requerido (…)

En el caso concreto del Transitorio VI de la Ley 9544, el legislador dispone un plazo de 18 meses, … luego del amplio análisis que el legislador realiza conforme la discusión del proyecto de ley que consta en las actas… se considera que el plazo de 18 meses es razonable ya que no se trata de una plazo excesivamente corto, ni excesivamente largo. // La atribución de este plazo responde a la atribución que la Asamblea Legislativa en el ejercicio de la función de dictar leyes… donde goza de una amplia libertad de conformación para desarrollar el programa constitucional fijado por el Poder Constituyente.

(…)

Se considera que en el caso consultado la Asamblea tomó en consideración que no se trataba de un plazo arbitrario, ni antojadizo, ni intempestivo, sino que se trata de un plazo razonable…” Ello debe entenderse así, pese a que esta Sala en resolución n°2021-11957 indicara que: “la decisión legislativa final de reconocerle únicamente a los cotizantes con 28 años y medio de servicio la posibilidad de jubilarse bajo el régimen anterior, sí formó parte de los requerimientos técnicos necesarios que se tomaron en cuenta para diseñar las modificaciones que darían sustento financiero al régimen de Jubilaciones y Pensiones del Poder Judicial. // Asimismo, el plazo de 18 meses estuvo ampliamente apoyado por el criterio técnico, no sólo por razones de seguridad jurídica de acuerdo a la jurisprudencia constitucional, sino también por razones de solvencia actuarial.” Así que debe entenderse, porque se desprende de la prueba solicitada y del expediente legislativo que, NO hubo criterio técnico para sustentar el plazo del transitorio cuestionado, sino que, el propio órgano legislativo fue quien consideró razonable el plazo establecido por “no ser excesivamente corto ni excesivamente largo”, bajo el sustento de la discrecionalidad legislativa. Es evidente que afirmar que no es ni excesivamente corto ni excesivamente largo, es un juicio que sólo responde a una apreciación que parece de sentido común, pero que está lejos de un criterio técnico que responda a un análisis de todas las variables en juego, máxime en un caso en que se restringen o modifican derechos en vías de consolidación.

4.-) Toda medida regresiva de derechos sociales, del derecho a la pensión y la jubilación, debe contar con un estudio técnico que reúna los siguientes requisitos:

-Sea previo a la aprobación de la norma.

-Demuestre los efectos que las medidas regresivas puedan tener en los derechos de los afectados.

-Demuestre que no existen medidas menos gravosas que pudieran haber sido tomadas.

Nótese además que, la Sala ha establecido como parámetro de referencia para examinar la legitimidad constitucional de una medida regresiva de DESC (derechos económicos, sociales y culturales) estos otros criterios de fondo:

*analizar si la restricción de derechos es “idónea” o “adecuada”, *analizar si es “necesaria” o “indispensable”, *analizar si es “proporcionada” en estricto sentido o “ponderada” *determinar que no existan otros medios para alcanzar con la misma eficacia el fin perseguido que sean menos onerosos en términos de sacrificio de los derechos constitucionales susceptibles de limitación en cada caso o, en otras palabras, que no exista otro medio que pueda conducir al fin y que sacrifique en menor medida los principios constitucionales afectados por el uso de esos medios. En palabras de la Corte Interamericana, se debe verificar si “(…) la restricción de los derechos afectados es equivalente a los beneficios que la disposición genera. Si el daño que se produce sobre el patrimonio jurídico de los ciudadanos es superior al beneficio constitucional que la norma está en capacidad de lograr, entonces es desproporcionada (…)”.

5.-) Se observa del expediente legislativo, que inicialmente se tenía un transitorio escalonado, pero luego, en el Plenario Legislativo mediante moción de fondo, se dejó un transitorio de 18 meses, sin mayor sustento técnico. Se observa además que, no consta en el expediente legislativo cuántas eran las personas que estaban prontas a jubilarse, ni cómo les afectaría el cambio de circunstancias, razones por las cuales se constata la ausencia de valoración del impacto de la medida regresiva. Así entonces, la primera conclusión que considero se desprende de todo lo expuesto, es que al constatarse que NO hubo criterio técnico que sustentara el Transitorio VI aquí impugnado, resulta claro que tampoco se cumplió con los requisitos anteriores: ni se demostraron los efectos de la medida sobre los derechos de los afectados; ni que dicha medida fuera la menos gravosa de las que pudieron ser tomadas; ni tampoco que fuera idónea, necesaria, ni proporcionada; ni mucho menos que el daño producido al patrimonio jurídico de los afectados fuera inferior al beneficio constitucional que la norma lograría. Por ello, al no contar, en concreto, el Transitorio impugnado, con un criterio técnico que respalde haber establecido un plazo de 18 meses, ello hace que la norma violara un requisito de procedimiento, y por ello, que resulte inconstitucional por la forma. Se produce una restricción y una variación de las condiciones para adquirir un derecho tan importante como la jubilación, sin el sustento técnico que justificara tal modificación. A diferencia de lo que se considera en el voto de mayoría de esta Sala cuando indica que: “un plazo de 18 meses resulta razonablemente suficiente para proteger a aquellas personas que aún no han cumplido los requisitos para adquirir el derecho a la pensión o jubilación…”, estimo que, no es posible que este tribunal sustituya al legislador indicando de manera genérica y para siempre que un plazo de 18 meses en los transitorios de leyes que reformen los regímenes de pensiones, resulta razonable, pues el plazo transitorio requiere de un sustento técnico específico, individualizado. En materia que incide en derechos fundamentales, no puede definirse un plazo, en abstracto, sin tomar en cuenta las circunstancias de cada reforma. Este criterio responde a una lógica de sentido común, que no es el parámetro aceptable en la tutela del derecho a la jubilación de los funcionarios judiciales. La jurisprudencia de la Sala Constitucional donde se menciona el plazo de los 18 meses no puede considerarse como único parámetro para examinar la razonabilidad y proporcionalidad de los regímenes transitorios. Nótese que en todo caso, esa jurisprudencia es genérica, y no puede considerarse que aplique igual plazo a todos los casos de regímenes transitorios. El criterio aplicado en el voto de mayoría ignora la singularidad del caso en examen y deriva una regla general, desconociendo que en los casos en que se aplicó, existen diferencias que no permiten derivar una conclusión como la que asume, desconociendo que las premisas de cada precedente, son diferentes. El análisis de razonabilidad y proporcionalidad debe ser casuístico, atendiendo a las situaciones particulares de cada reforma. Una conclusión no puede asumirse si no es congruente con las premisas.

Por otro lado, tampoco es de recibo lo que se indica en el voto de mayoría sobre que el plazo de los 18 meses contó con sustento técnico en el informe emitido por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE), el 4 de julio de 2017, denominado Producto 6 “Recopilación e informe final: conclusiones y recomendaciones”, puesto que:

a. Dicho informe (de fecha julio 2017) fue el sustento técnico del texto vigente a ese momento, que NO es el texto finalmente aprobado en octubre del 2017 (donde en el Plenario sufrió modificaciones de fondo importantes mediante mociones, en cuenta, allí fue donde se estableció el transitorio de 18 meses).

b. Dicho informe solo puede entenderse como sustento para el texto del proyecto de ley de ese momento y no el que finalmente se aprobó. Si el texto del proyecto cambió (en cuanto a condiciones, edad, monto y demás), es lógico que la solvencia del Fondo sería mayor que la que existía cuando el informe técnico se rindió. Así entonces, las conclusiones a las que arribaría con un transitorio de 20 años, serían diferentes.

c. Dicho informe es incompatible con lo indicado por los representantes de la Junta de Pensiones del Poder Judicial, tanto en el informe rendido como en la vista, donde se indica expresamente “no hay ningún riesgo de insolvencia del Fondo con incluir en el transitorio a los que cuenten con 20 años, tomando como base que el Fondo tendría una solvencia de casi 80% con población abierta, en comparación con el IVM de la CCSS que tiene un 50%, siendo así el Fondo del Poder Judicial los que mayor solvencia tienen.” El voto de mayoría ignora este dato actualizado y asume el criterio de un informe que no respondía a la realidad de la época y a la situación financiera del fondo en la actualidad.

d. El oficio suscrito por la Superintendencia de Pensiones de octubre del 2023 no se puede citar en un voto porque la SUPEN no es interviniente en la acción, y por lo tanto, sus afirmaciones no pudieron ser contextualizadas o incluso rebatidas en la vista. Se trata de un criterio que no pudo ser confrontado y discutido en el proceso de la acción. El voto de mayoría toma en cuenta un dictamen que no fue confrontado y rebatido en la acción o en la audiencia oral.

e. El mismo informe 6 indica en las conclusiones (página 73), que “Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo.” 6.-) Como prueba que demuestra que el plazo establecido ha tenido efectos gravosos en los afectados, se indica en el informe presentado por la Corte Suprema de Justicia que:

-La cantidad de renuncias que se han dado desde el 2018 hasta la fecha suman 750.

-La cantidad total de personas que se vieron afectas por la Ley de Reforma del régimen de jubilaciones y pensiones del Poder Judicial es de 1292, lo cual representa un 9,68% del personal judicial.

-Es indiscutible el impacto de las renuncias que se han dado en el Poder Judicial en términos de los costos asociados con la contratación y capacitación de nuevo personal.

-Las personas trabajadoras más antiguas tienen que asumir tareas adicionales para cubrir las responsabilidades del puesto vacante, aumentando su carga de trabajo y potencialmente afectando su desempeño.

-Es ineludible que el cambio en las condiciones para jubilarse ha tenido un impacto negativo en la salud física y emocional de una persona trabajadora que ya estaba planificando su retiro y estaba preparada para hacerlo. El estrés adicional y la exigencia física y mental del trabajo prolongado puede aumentar el riesgo de enfermedades crónicas y problemas de salud mental.

-Se observa en el cuadro resumen durante los años cercanos a la reforma se observa un repunte de los diagnósticos por ansiedad, igualmente debe llamar la atención el incremento de los diagnósticos relacionados a cuadros de depresión que emergen posterior a implementada la reforma en análisis. En relación con ese tema, las personas trabajadoras han manifestado sentimientos de frustración, desmotivación, malestar, tristeza, apatía, desesperanza, angustia, entre otros. Además, se atienden cuadros de ansiedad, depresión, estrés laboral, síndrome de la persona trabajadora quemada, entre otros.

En este sentido, resulta claro que no se ha demostrado que el plazo establecido fuera el menos gravoso del que pudo haberse establecido, tornándolo irrazonable y desproporcionado, además de ser un plazo inidóneo e innecesario. Máxime si se compara con otros plazos establecidos en transitorios de otras leyes, a saber:

Plazos de transitorios 1) MAGISTERIO NACIONAL *20 años de pertenencia al régimen Ley n°8536 del 2006:

Quienes al 18 de mayo de 1993 o al 13 de enero de 1997 hayan servido al menos durante 20 años en el Magisterio Nacional, mantendrán el derecho de pensionarse o jubilarse al amparo de la ley n° 2248 y n°7268.

• 2)IVM CCSS *Edad de 55 años Reglamento n°7952 del 2005:

Quienes cuenten con 55 años o más, conservarán el derecho a pensión según las condiciones vigentes antes de la presente reforma.

• 3)*54 meses de vigencia de la reforma Reglamento n°8856 del 2016:

La reforma entra a regir a partir del 1° de setiembre del 2016. Una vez transcurridos 54 meses desde la entrada envigencia, ninguna persona podrá acceder a un retiro anticipado.

• 4)FUNCIONARIOS DEL TSE *Con solo hayan cotizado al Fondo de Pensiones del Poder Judicial Ley n°9544 del 2018 Funcionarios del TSE que hayan cotizado al Fondo de Pensiones del Poder Judicial de previo a la entrada en vigencia de esa ley, la reforma no se les aplicará en perjuicio.
• 5)PENSIONES CON CARGO AL PRESUPUESTO NACIONAL Ley n°9388 del 13/09/2016 PLAZO DE 5 años:

ARTÍCULO 8.- Reforma del transitorio III de la Ley N.° 7302. Se reforma el transitorio III de la Ley N.° 7302, Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, de Otros Regímenes Especiales y Reforma a la Ley N.° 7092, del 21 de abril de 1988, y sus Reformas, Ley de Impuesto sobre la Renta, de 8 de julio de 1992. El texto es el siguiente:

"Transitorio III.- Dentro del plazo de cinco años, contado a partir de la entrada en vigencia de la presente ley, las personas que tengan derecho podrán pensionarse bajo los términos originales contemplados en la Ley N.° 7302, Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, de Otros Regímenes Especiales y Reforma a la Ley N.° 7092, de 21 de abril de 1988, y sus reformas, Ley del Impuesto sobre la Renta, de 8 de julio de 1992, tanto en lo que respecta al porcentaje a otorgar en la tasa de reemplazo como la posibilidad de descontar de la edad de retiro un año por cada dos de los años servidos y cotizados para la Administración Pública.

En el plazo citado en el párrafo anterior, para poder pensionarse o jubilarse se requerirá tener un mínimo de cincuenta y cinco años de edad y los años servidos y cotizados que determine su régimen.

Finalizado este plazo, la edad mínima de retiro quedará establecida en los sesenta años, igual a la edad contemplada en el artículo 4 de la Ley N.° 7302." 7.-) Si bien, el haber declarado la inconstitucionalidad de un vicio de procedimiento -como lo es en este caso, la ausencia de criterio técnico para establecer una medida restrictiva del derecho a la pensión-, es suficiente para la estimatoria de esta acción. Si bien ello hace innecesario referirme al resto de alegatos de fondo indicados por los accionantes, considero que también estamos frente a otras violaciones al Derecho de la Constitución, tales como: violación al derecho de pensión en vías de adquisición de las personas que resultaron excluidas del transitorio sin criterio técnico, derecho derivado del Derecho Internacional de los Derechos Humanos, violación al principio de confianza legítima, violación al derecho de igualdad, según se indica a continuación.

B.-) Sobre cómo se violentaron los derechos en vías de adquisición Los accionantes indican que, la aplicación automática de una disposición transitoria tan severa y nunca antes aplicada a ningún grupo con situaciones jurídicas consolidadas en materia jubilatoria, resulta contrario al Derecho de la Constitución, por lo que solicita se declare la inconstitucionalidad y se permita a sus representados poder jubilarse con las anteriores condiciones a dicha reforma, dada la cantidad de tiempo que han pertenecido al régimen en cuestión. Agregan además que, otras reformas jubilatorias han tenido un transitorio escalonado que les ha permitido modular sus expectativas jubilatorias, situación que no se ha permitido en el Poder Judicial. Indican además que, otros tribunales constitucionales reconocen el derecho a un tratamiento diferenciado a las personas que se encuentran cercanas a adquirir los requisitos jubilatorios y que se encuentran frente a una modificación legislativa, por lo que se solicita la aplicación del derecho comparado. Así consideran que, no solo se parte de una tutela al derecho jubilatorio que se da cuando se cumplen los presupuestos fácticos que establecen las normas, sino que, además, se reconocen y protegen los derechos en vías de adquisición, que, conforme a la cercanía con el momento de alcanzar el derecho, requieren de una tutela o protección del Estado. La Procuraduría General de la República (PGR) indica que, en nuestro medio se reconoce únicamente el derecho adquirido a la jubilación cuando se han cumplido todos los requisitos, mientras que el mal denominado “derecho de pertenencia” no es más que una simple expectativa, que se extingue con la reforma o derogación introducida por la nueva normativa que sea promulgada. Agrega que, si bien la jurisprudencia constitucional ha reconocido que, en el caso de los regímenes contributivos de pensión, la cotización origina un “derecho de pertenencia”, ello no hace inmodificable las reglas del sistema. Por su parte, el Presidente de la Asamblea Legislativa manifiesta que, no resulta pertinente lo alegado por los accionantes, en cuanto a que la ley 9544 entre en contradicción con lo establecido en los convenios de la Organización Internacional de Trabajo. Agrega que, la Sala Constitucional al resolver la consulta facultativa no encontró que en la ley 9544 afectación a los derechos adquiridos y situaciones jurídicas consolidadas. Tampoco considera que se haya dado violación a Pacto Internacional de Derechos Civiles y Políticos, ni al Pacto Internacional de los Derechos Económicos, Sociales y Culturales, pues la ley no afecta los derechos a la seguridad social. Se rechaza además la lesión a los principios de trasparencia, seguridad jurídica, buena fe, confianza legítima, intangibilidad relativa del patrimonio, no confiscatoriedad y respeto de los derechos adquiridos y situaciones jurídicas consolidadas. En criterio de la Corte Suprema de Justicia, en las tres ocasiones en la Corte fue consultada se emitió criterio negativo y se opuso al proyecto de ley consultado, debido a que incide en la organización y funcionamiento del Poder Judicial. Consideran que debió haberse resguardado el derecho a la jubilación, con un transitorio razonable, justo, sustentado en criterios técnicos y objetivos.

Al respecto considero que los accionantes llevan razón en sus alegatos, y se ha dado en este caso una violación al derecho de pensión en vías de adquisición, derecho derivado del Derecho Internacional de los Derechos Humanos; todo conforme se explica a continuación. La trascendencia de la jubilación requiere una tutela específica, cuando ese derecho está en vías de consolidación. No puede ignorarse esa condición tutelando sólo el derecho adquirido y dejando sin tutela el lento proceso en que el funcionario alcanzará, después de años, tal condición.

Tradicionalmente se ha entendido que, el artículo 34 Constitucional protege los “derechos adquiridos” y las “situaciones jurídicas consolidadas”. Sin embargo, en razón de lo que establece el Derecho Internacional de los Derechos Humanos relacionados con el derecho al trabajo, podemos agregar otro concepto constitucionalmente tutelado, el concepto de “derechos en vías de adquisición”. En términos generales, se pueden definir los conceptos de la siguiente manera:

Derechos adquiridos (art.34 constitucional) Se refieren a aquella circunstancia consumada en lo que una cosa -material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable.

(ver sentencia n° 2765-97) Situaciones jurídicas consolidadas (art.34 constitucional) Representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante es cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que —por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a /a vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica de/tipo 'si..., entonces.. .M, vale decir si se ha dado el hecho condicionante, entonces la 'situación jurídica consolidada' implica que, necesariamente, deberá darse también el efecto condicionado.

(ver sentencia n° 2765-97) Derechos en vías de adquisición (art.34 constitucional y normativa de la OIT) Derechos de quienes están cerca de acceder a un derecho específico bajo un régimen anterior.

Derechos que están prontos a consolidarse de haberse mantenido las condiciones establecidas.

Derechos que se ubican en una posición intermedia entre los derechos adquiridos o situaciones jurídicas consolidadas, y las meras expectativas, por lo tanto son merecedores de una cierta protección, que también encuentra cobijo en el art.34 Constitucional.

Derecho Comparado, ver sentencia de Corte Constitucional de Colombia C-789 del 24 de setiembre del 2002: No es posible eliminar el régimen de transición de aquellas personas que hubieren logrado el 75% del tiempo de servicio necesario para adquirir la prestación antes de la entrada en vigencia de la reforma de pensiones, pues ello desconocería la expectativa legítima del estado.

En todos estos casos, el parámetro constitucional protege, tornando intangible para el legislador, la situación de quien obtuvo el derecho (derecho adquirido), de quien disfruta de la situación (situación jurídica consolidada) o de quien estará pronto a disfrutarlo (derecho en vías de adquisición), por razones de equidad y certeza jurídica. Sobre los derechos en vías de adquisición existe diversa normativa internacional.

Así, el Convenio Multilateral Centroamericano de Seguridad Social (San José), aprobado por Costa Rica mediante ley n°5333 del 22 de agosto de 1973, artículo 27 establece:

“Artículo 27:

1º.- En caso de denuncia del presente Convenio, será mantenido todo derecho adquirido en virtud de sus disposiciones.

2º.- Los derechos en vías de adquisición, relativos a períodos cumplidos con anterioridad a la fecha en que la denuncia sea efectiva, no se extinguirán por el mero hecho de la denuncia, su conservación se determinará por vía de acuerdo o, a falta de acuerdo, por la legislación correspondiente a la Institución competente.” La Convención sobre el Estatuto de los Refugiados, aprobado por Costa Rica mediante ley n°6079-A del 29 de agosto de 1977, en el artículo 24:

“Artículo 24:

1. Los Estados Contratantes concederán a los refugiados que se encuentren legalmente en el territorio de tales Estados el mismo trato que a los nacionales en lo concerniente a las materias siguientes:

(…)

• b)Seguros sociales (disposiciones legales respecto a accidentes del trabajo, maternidad, enfermedad, invalidez, ancianidad, fallecimiento, desempleo, responsabilidades familiares y cualquier otra contingencia que, conforme a las leyes o los reglamentos nacionales, esté prevista en un plan de seguro social), con sujeción a las limitaciones siguientes: i) Posibilidad de disposiciones adecuadas para la conservación de los derechos adquiridos y de los derechos en vías de adquisición; (…).” Lo cual es reconocido también como una máxima, según el artículo 7 del Convenio 118 de la OIT denominado Convenio sobre la igualdad de trato (seguridad social), 1962, según el cual:

“Artículo 7 1. Los Estados Miembros para los que el presente Convenio esté en vigor deberán esforzarse en participar, (…) en un sistema de conservación de derechos adquiridos y de derechos en vías de adquisición, reconocidos en virtud de su legislación a los nacionales de los Estados Miembros (…)” (resaltado no corresponde al original) Asimismo, el artículo 30 del Convenio 128 de la OIT, denominado Convenio sobre las prestaciones de invalidez, vejez y sobrevivientes, 1967, según el cual:

“Artículo 30:

La legislación nacional deberá, bajo condiciones prescritas, prever la conservación de los derechos en curso de adquisición respecto de las prestaciones contributivas de invalidez, vejez y sobrevivientes.” (resaltado no corresponde al original) Además, del artículo 6 del Convenio 157 de la OIT, denominado Convenio sobre la conservación de los derechos en materia de seguridad social, 1982 (núm. 157):

“Artículo 6 A reserva de las disposiciones del apartado a) del párrafo 3 del artículo 4 del presente Convenio, todo Miembro deberá esforzarse en participar con cada uno de los demás Miembros interesados en un sistema de conservación de los derechos en curso de adquisición respecto de toda rama de seguridad social mencionada en el párrafo 1 del artículo 2 del presente Convenio para la cual esté en vigor una legislación de cada uno de estos Miembros, en favor de las personas que hayan estado sujetas sucesiva o alternativamente a las legislaciones de dichos Miembros.” (resaltado no corresponde al original).

Sobre el valor de los convenios internacionales no ratificados por Costa Rica, debe recordarse el valor de los instrumentos internacionales de derechos humanos. La Sala Constitucional, desde temprana jurisprudencia de los años 90 indicó que el artículo 48 Constitucional -reformado en 1989-, había creado una nueva categoría de normas: los instrumentos internacionales sobre derechos humanos, lo cuales, tienen un rango, no solo superior a las leyes (en virtud del artículo 7) sino además superior a la Constitución Política, en la medida es que protejan más los derechos humanos (ver sentencias 1147-90, 3805-92, y además 1739-92, 3435-92, 2313-95, 2002-10693)[[]20]. Ahora bien, incluso se han considerado como parte del parámetro o bloque de constitucionalidad, aquellos instrumentos internacionales de derechos humanos que no hayan sido aprobados por Costa Rica. Así se ha dicho:

“En este aspecto hay que rescatar la referencia específica que hoy la Constitución hace de los "instrumentos internacionales", significando que no solamente convenciones, tratados o acuerdos, formalmente suscritos y aprobados conforme al trámite constitucional mismo … sino cualquier otro instrumento de tenga la naturaleza propia de la protección de los Derechos Humanos, aunque no hay sufrido ese trámite, tiene vigencia y es aplicable en el país. Así, la Declaración Universal de Derechos Humanos (París, 10 de diciembre de 1948), por su carácter y naturaleza, no ha necesitado de los trámites constitucionales de aprobación, para entenderse como vigente y con la fuerza normativa que le otorga la materia que regula. Otro tanto cabe decir de las "Reglas Mínimas para el tratamiento de los reclusos", de la Organización de las Naciones Unidas, que aunque sean producto de reuniones de expertos o el trabajo de algún departamento de esa organización, por pertenecer nuestro país a ella, y por referirse a derechos fundamentales, tienen tanto el valor de cualquier normativa internacional que formalmente se hubiera incorporado al derecho interno costarricense.” (sentencia n°2000-9685. Resaltado no corresponde al original. Ver además sentencia n°2000-7498)[4] Tal como lo ha dicho esta Sala resolviendo otra acción relacionada con el tema de pensiones, esta acción de inconstitucionalidad tiene en el trasfondo los derechos económicos, sociales y culturales, derechos humanos muy concretos, que se constituyen en temas que deben ser cuidadosamente analizados y tutelados por este Tribunal Constitucional, especialmente, al tratarse de los derechos que acompañan a las personas adultas mayores en momentos muy importantes de su vida (ver resolución n.º 2020-19274, de las 16:30 horas del 07 de octubre del 2020[[]22]). Por Sentencia N° 2012-16628 de las 16:30 horas del 28 de noviembre de 2012 (ratificado en sentencia anterior n°2020-19274), esta Sala estableció, sobre la normativa internacional en materia de seguridad social como un piso o mínimo:

“Lo cierto es que la normativa internacional establece lo que la jerga de la seguridad social denomina en algunos de los documentos de la OIT el piso social o piso de protección social como un mínimo de obligaciones fundamentales que sí podrían ser justiciables, sí existen obligaciones jurídicas no cumplidas y exigibles en forma doméstica, o agotada ésta, a nivel internacional. […]” La Sala ha indicado que “hay un derecho al mantenimiento de la protección que el asegurado recibe conforme a la legislación nacional, al pertenecer a un régimen y especialmente declarado al cumplir con las condiciones y requisitos necesarios, para el disfrute de un derecho de goce pacífico.” (ver sentencia n°2020-19274). Derecho al mantenimiento de la protección que se puede extender, no sólo al disfrute de un derecho declarado, sino además, al derecho a pertenecer a un régimen con las condiciones y requisitos pactados desde el inicio. Lo cual está relacionado también con el principio constitucional de confianza legítima relacionado con el principio de seguridad jurídica y el principio de buena fe, pues opera como un límite al poder público que impide vulnerar la confianza de los administrados en el sentido de que no sea vulnerada sin razón fundamentada, protegiendo la estabilidad de las situaciones jurídicas, de derechos adquiridos y de derechos en vías de adquisición. Dicho principio, aplicado a este caso significa que, el cambio en las condiciones y requisitos jubilatorios si bien pueden cambiar por decisión del legislador (pues ciertamente no es que exista un derecho a la inmutabilidad del ordenamiento jurídico), pero, a diferencia de lo que se consideró en el voto de mayoría, estimo que dicho cambio debe respetar los derechos en vías de adquisición de aquellos que estén prontos a cumplir dichas condiciones y requisitos. En tema tan trascendental en la vida del ciudadano trabajador, se requiere una distinción jurídica que recoja la particularidad de una situación tan relevancia, cuál es el régimen que regula el proceso jubilatorio.

Por otro lado, ya lo ha dicho esta Sala “la crisis financiera ni es en sí misma ni puede ser una justificación para la toma de decisiones regresivas”. Además, “la falta de recursos no puede servir de pretexto para el incumplimiento de ellos [los derechos sociales]”. (ver sentencia n°2020-19274). Por ello, no considero procedente que el voto de mayoría sustente la regresión de condiciones asociadas al derecho de pensión, en la crisis del régimen de pensión. En el mismo sentido en que esta Sala lo dijo en la resolución de referencia (sentencia n°2020-19274) debe entenderse un tope a la potestad legislativa para cambiar las condiciones de un régimen de pensiones, referido al denominado “derecho de pertenencia” que protege además los derechos en vías de adquisición. Tal como se dijo, sobre este concepto de derechos en vías de adquisición, los mencionados artículos 7 del Convenio 118 de la OIT, artículo 30 del Convenio 28 OIT y artículo 6 del Convenio 157 de la OIT, convenios que, aunque no aprobados por Costa Rica, constituyen parte del derecho internacional de los derechos humanos, y por tanto, parte de nuestro bloque o parámetro de constitucionalidad. Y es que ello no se trata de darle preponderancia a intereses particulares frente a los generales, como se indica en el voto de mayoría, sino que, el interés general en su adecuada dimensión incluye el respeto de los derechos en vías de adquisición. No considero admisible aceptar el argumento que asume que las crisis financieras están por encima de los derechos fundamentales, en cuanto consideremos ello así, estaríamos admitiendo la muerte inminente del Derecho de la Constitución, pues en nuestros días, prácticamente todo cabe justificarse por una crisis fiscal. Y, no es que desconozca que tales crisis existan, sino que, los derechos fundamentales siempre deben tener supremacía frente a ellas, siendo lo procedente responsabilizar a quienes han llevado a tales crisis pero no a costa de los derechos sociales. En este sentido no puedo menos que estar en desacuerdo con el concepto que ha venido indicando la mayoría de esta Sala, en cuanto al Estado social de derecho posible, concepto que viene a constituir una clara regresión de lo debe entenderse como Estado social de derecho, incluso así lo ha entendido la Corte Constitucional Italiana en el considerando 11 de la sentencia 275/2016 cuando se entiende que el equilibrio presupuestario no puede condicionar la satisfacción de los derechos humanos. Asimismo, la sentencia de la Corte Constitucional Colombiana (140/19) cuando se indica que ninguna autoridad pública podrá invocar la sostenibilidad fiscal para socavar derechos fundamentales. Es preocupante que se postule un concepto tan vago e inexacto como “Estado social de derecho posible”, ese horizonte, que luce como una entelequia, viene a condicionar todo el estado social. No hay Estado de derecho si asumimos que los derechos sociales sólo son admisibles, si son posibles. Es decir, que en función de valoraciones estrictamente fiscalistas o economicistas, los sectores con menos poder económico y político, ven reducidos, restringidos o suprimidos, los derechos sociales. Hay que reflexionar mucho sobre estos horizontes que abren la puerta a la devaluación y reducción del Estado social, que incluye, sin duda alguna, el tema del régimen jubilatorio. Más grave aún si se restringen sin un criterio técnico específico y adecuado al caso concreto.

En Derecho Comparado, se observa por ejemplo las consideraciones que al respecto ha hecho la Corte Constitucional Colombiana, indicando que, las expectativas legítimas de quienes aspiran a pensionarse bajo un régimen determinado, deben ser objeto de alguna consideración protectora por el legislador, siendo una de las maneras de protección de las expectativas legítimas el establecimiento de regímenes de transición, que amplían el ámbito de protección más allá de sólo los derechos adquiridos (ver sentencias C-147 del 19 de marzo de 1997 y C-428 del 01 julio 2009). A diferencia de lo que se indica en el voto de mayoría, que yerra al indicar que en Colombia no se fija un plazo para garantizar los derechos en vías de adquisición, estableciéndose en un 75% de cotización del régimen anterior, véase lo que se indicó en la sentencia de Corte Constitucional de Colombia C-789 del 24 de setiembre del 2002:

“3.3. La protección de las expectativas legítimas de los trabajadores y la interpretación más favorable (…) En virtud de dicha protección, los tránsitos legislativos deben ser razonables y proporcionales, y por lo tanto, la ley posterior no podría desconocer la protección que ha otorgado a quienes al momento de entrada en vigencia del sistema de pensiones llevaban más de quince años de trabajo cotizados.

(…)

Por lo tanto, resultaría contrario a este principio de proporcionalidad, y violatorio del reconocimiento constitucional del trabajo, que quienes han cumplido con el 75% o más del tiempo de trabajo necesario para acceder a la pensión a la entrada en vigencia del sistema de pensiones, conforme al artículo 151 de la Ley 100 de 1993 (abril 1º de 1994), terminen perdiendo las condiciones en las que aspiraban a recibir su pensión.

En tal medida, la Corte establecerá que los incisos 4º y 5º del artículo 36 de la Ley 100 de 1993 resultan exequibles en cuanto se entienda que los incisos no se aplican a las personas que tenían 15 años o más de trabajo cotizados para el momento de entrada en vigor del sistema de pensiones consagrado en la Ley 100 de 1993, conforme a lo dispuesto en el artículo 151 del mismo estatuto.

(…)

Por lo tanto, las personas que hubieran cotizado durante 15 años o más al entrar en vigencia el sistema de pensiones, y se encuentren en el régimen de prima media con prestación definida, tendrán derecho a que se les apliquen las condiciones de tiempo de servicios, edad y monto de la pensión, consagradas en el régimen anterior, siempre y cuando: (…)” (resaltado propio) En el caso del derecho a la jubilación o a la pensión se tiene lo siguiente:

El derecho a la jubilación o la pensión es una situación jurídica consolidada, el cual se adquiere cuando el interesado cumple con todos los presupuestos establecidos por ley. El derecho de pertenencia a un régimen jubilatorio que es el derecho a permanecer en un régimen de pensiones propio de la institución en que se labora, así como sus elementos o condiciones definitorias. El derecho a pertenecer al régimen implica el derecho a no ser excluido, a que se mantengan sus parámetros generales. Se puede ubicar aquí el derecho de pensión en vías de adquisición. Este derecho deja de ser una simple expectativa de derecho y se adquiere desde que se ingresa al régimen jubilatorio (ver sentencia n°1147-90[[]23] y n°6491-98[[]24]). La jurisprudencia ha reconocido que la cotización para un régimen de pensiones origina un "derecho de pertenencia al régimen", como queda dicho, pero no hace inmodificable las reglas del sistema" (ver sentencia n°5236-99[[]25]). Así que no se trata de una simple expectativa de derecho, sino que tiene un grado mayor de protección. El régimen al que se pertenece puede ciertamente sufrir reformas, pero ellas están sujetas a ciertas limitaciones, básicamente, esas reformas deben tener un sustento técnico y además, deben respetar los derechos en vías de adquisición. De lo primero ya se ha indicado lo correspondiente supra, y de lo segundo, se trata que el legislador tome en cuenta esos derechos en vías de adquisición en sus disposiciones transitorias.

Así lo ha indicado antes esta Sala:

“… el derecho de jubilación se manifiesta primeramente bajo el nombre y la forma de "derecho de pertenencia al régimen" desde el ingreso del funcionario al sistema y hasta que acontece el evento consistente en el cumplimiento de los requisitos necesarios para la obtención del beneficio. Luego, deja ese ropaje para pasar a llamarse "derecho a la prestación actual", una vez que ha ocurrido aquella señalada eventualidad.” (ver resolución n°2379-96[[]26]).

Es importante poner énfasis en la protección constitucional del derecho a la pensión, en su contenido esencial. Procede ejercer el control de constitucionalidad de la actividad parlamentaria y, por consiguiente, de las leyes, por vulnerar los principios de razonabilidad y proporcionalidad cuando están vinculados a un derecho fundamental pues ello, además, vació su contenido esencial. Esta Sala ha indicado ya (ver resolución n°2019-00234[[]27]) que el derecho a la jubilación o la pensión es una situación jurídica consolidada, violentándose los derechos en vías de adquisición, para el caso de aquellos funcionarios que pudieron técnicamente incluirse dentro del transitorio y que pese a ello no se hizo. Ello no quiere decir que todos los cotizantes o que todos los que pertenezcan al régimen de pensiones del Poder Judicial tuvieran en este caso una situación jurídica consolidada, sino que se trata de la protección de los derechos en vías de adquisición -derivados del derecho de pertenencia- de aquellos que, pudiendo técnicamente incluirse dentro del transitorio, no se les incluyó. El derecho de pertenencia hace surgir en favor de los cotizantes que estuvieren prontos a acogerse a la jubilación, una protección de sus derechos en vías de adquisición, bajo las condiciones más favorables del régimen anterior, derechos protegidos constitucionalmente al amparo del artículo 34 Constitucional, pero además, bajo el amparo del derecho internacional de los derechos humanos. A este grupo de funcionarios, la norma cuestionada permitió que se les violentara su derecho en vías de adquisición, y con ello, de pensionarse bajo el régimen anterior que les resultaba más favorable.

Claramente, no es la misma situación, ni el mismo amparo constitucional, que tienen las personas que recién inician su cotización en el Fondo de Pensiones y aquellas que llevan muchos años e incluso, están a pocos años de pensionarse. Esta distinción tan importante en la tutela del derecho a la jubilación, no se hace, de ninguna manera, en el transitorio que se discute en esta acción. Todo lo cual violenta además el principio de progresividad de los derechos fundamentales, pues el legislador democrático está limitado por los derechos fundamentales, tal como lo ha indicado esta Sala:

“Los Derechos Fundamentales vinculan negativa y positivamente al legislador. En un sentido negativo, debe respetarlos para lograr su plena efectividad, esto es, funcionan como una barrera o un límite. En un sentido positivo, los derechos fundamentales son para el legislador constituido un mandato, un principio rector o un programa por lo que debe desarrollarlos y configurarlos pero con respeto de su contenido esencial, esto es, del núcleo mínimo e indisponible – límite de límites- de cada uno de estos. El legislador constituido al desarrollar los derechos fundamentales debe velar por su progresiva intensificación y extensión de su eficacia y, en general, por su plena efectividad, para evitar cualquier regulación regresiva y restrictiva”. (ver resolución n°2003-2794[[]28]).

Todo lo cual encuentra fundamento en el artículo 26 de la Convención Americana de Derechos Humanos, y lo que esta Sala ha establecido al respecto:

“El artículo 26 obliga a los Estados signatarios a tomar providencias a nivel interno así como de cooperación internacional, con el propósito de lograr progresivamente la plena efectividad de los derechos que se derivan de las normas económicas, sociales, de educación, ciencia y cultura, contenidas en la Carta de la Organización de los Estados Americanos.” Resolución n°1995-03932.

C.-) Sobre el efecto que debió tener la declaratoria de inconstitucionalidad del transitorio cuestionado En esta controversia, considero que la declaratoria de inconstitucionalidad no puede tener por único efecto el anular toda la norma, pues lo inconstitucional no es haber establecido un transitorio sino un plazo sin sustento técnico. Por ello me inclino por anular únicamente el plazo de “dieciocho meses” establecido en el Transitorio VI de la norma impugnada. Ahora bien, es evidente que el anular dicho plazo es insuficiente para la protección de los derechos fundamentales aquí involucrados, corresponde indicar los efectos adicionales que tendría esta declaratoria de inconstitucionalidad. Si bien esta Sala ha indicado en anteriores oportunidades que no le corresponde “la potestad de elaborar, con los elementos técnicos aportados, una solución al problema real presentado por la situación financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial.” Debido a que consta en esta acción, y en la vista realizada, elementos técnicos que permiten poder elaborar una solución, se procede a indicar cuál es el plazo que debe entenderse aplica para el Transitorio VI de la ley impugnada. Estableciéndose como parámetro razonable el plazo establecido para acogerse a la pensión anticipada, a saber, el plazo de 20 años o más de cotización para el régimen, pues ello equivaldría a haber cotizado un 66% del plazo total (que eran 30 años). Dicho plazo permite respetar los derechos en vías de adquisición y el derecho de pertenencia de quienes habían cotizado la mayoría del plazo total, y que estaban prontos a jubilarse. Además, de resultar proporcional al plan de vida, razonable conforme a la sostenibilidad financiera del Fondo de Pensiones, en respeto del principio de confianza legítima (confianza en que condiciones no serán variadas de forma abrupta, confianza en que las reglas establecidas se respetarán y si cambian, el cambio sea gradual[[]29]). Así, considero que debe leerse el transitorio VI impugnado de la siguiente manera:

“Transitorio VI.- Los servidores judiciales que cuenten al momento de entrada en vigencia esta ley con, veinte años o más de servicio en el Poder Judicial, podrán pensionarse al amparo de las disposiciones establecidas en el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, según las condiciones vigentes antes de esta reforma.” El fundamento técnico para el plazo indicado de 20 años lo sustento en el siguiente criterio técnico:

-El anterior Presidente de la Junta Administradora del Fondo, señor Carlos Montero, ante una comparecencia en la Corte Plena del Poder Judicial (sesión n° 08-2021, del 22 de febrero de 2021, artículo XVIII) manifestó que el Fondo se encontraba en condiciones de asumir las jubilaciones con las condiciones anteriores a la reforma, de personas que al momento de la entrada en vigencia del Transitorio VI, contaban con 20 años o más de servicio en el Poder Judicial.

-El artículo 29 del Convenio n°102 de la OIT establece un plazo mínimo de 20 años de residencia para la concesión de una pensión. En un inicio esta Sala interpretó dicha norma (ver votos n°6842-99[[]30] y n°00-673[[]31]) entendiendo “residencia” como pertenencia a un régimen, para luego, cambiarse de criterio, indicándose en el voto n°2000-2091[[]32] que “residencia” significa la residencia habitual en el territorio del Miembro y el término “residente” designa la persona que reside habitualmente en el territorio del Miembro. Sin embargo, es lo cierto que, el parámetro de 20 años constituye un criterio válido y razonable para entender también que 20 años puede ser el plazo de protección de pertenencia a un régimen al que se cotiza.

-El Código Iberoamericano de Seguridad Social (de la Organización Iberoamericana de Seguridad Social O.I.S.S., suscrito por Costa Rica en San Carlos de Bariloche, Argentina, en octubre de 1995) establece en su artículo 50.1, un período de veinte años de cotización como periodo mínimo para garantizar una cuantía.

-Observando el plazo establecido en el transitorio de otras leyes relacionadas con Fondo de Pensiones, se tiene una media. Así por ejemplo la Ley del Magisterio Nacional estableció un plazo de 20 años de pertenencia al régimen (ley n°8536), mientras que otras leyes establecen un plazo mayor de transitorio: en 5 años las pensiones con cargo al Presupuesto Nacional (ley n°9388), 54 meses el IVM de la CCSS (reglamento n°8856); o incluso, con solo haber empezado a cotizar quedan al amparo de normativa anterior en el caso de funcionarios del TSE (ver transitorio II de ley n°9544).

-El porcentaje de cotización que corresponden a 20 años de pertenencia al régimen es de un 66% del plazo total anterior (30 años), lo cual resulta en un porcentaje mayoritario, que sobrepasó la mitad y que resulta razonable atendiendo al plan de vida de quien ya pasó la mayoría de sus años de servicio cotizando para un determinado régimen bajo unas determinadas condiciones.

-El Transitorio, en su versión anterior (ver dictamen de la Comisión del 27 de julio del 2017) establecía un plazo de 23 años y 6 meses de servicio para cobijarse, de forma escalonada, en la normativa anterior de pensiones.

-Según la prueba para mejor resolver, aportada por la Junta actual del Fondo de Pensiones y Jubilaciones del Poder Judicial, se indica que un incremento de 10 años de servicio albergaría a 2759 personas, y cuya razón de solvencia del fondo pasaría de un 86,29% a un 79,43%, bajando 7 puntos porcentuales, manteniéndose siempre el porcentaje dentro de lo razonable, el cual según se indicó ello es así siempre que el porcentaje se mantenga igual o por arriba de 70%.

-Atendiendo a criterios, más allá de los económico-financieros, sino del orden de los derechos sociales, esta sería la mayor cantidad de funcionarios posibles que el Fondo de Pensiones pudiera acoger con las condiciones de pensión anteriores a la reforma, y con ello, más favorables a la persona (principio pro personae, principio pro operario).

Finalmente, a diferencia de como se hace en el voto de mayoría, considero que los Tribunales Constitucionales deben resolver con base en el Derecho de la Constitución, sin ignorar las consecuencias de los fallos, pero tomando en consideración los efectos sobre otros derechos fundamentales. El tema de las consecuencias del fallo, es una materia de contenido impreciso, debe precisarse más en su contenido y en sus derivaciones en la misma sentencia. En este caso, si bien existe un tema importante respecto de las consecuencias de la decisión en la salud financiera del régimen jubilatorio, tal evaluación requiere un análisis más amplio y detallado, situación que desde mi perspectiva no se cumple en el voto de mayoría. Las consecuencias de una decisión no pueden eclipsar el análisis y tutela de otros derechos. En esa ponderación me inclino más en la preeminencia de los derechos reclamados que en las consecuencias de la decisión, sin ignorar, como lo he expuesto, que la decisión favorable a los recurrentes, no pone en peligro la salud financiera del fondo de pensiones del Poder Judicial. En el caso en examen, no sólo debe evaluarse la salud financiera del régimen, sino además, los efectos de la decisión legislativa que se cuestiona, en la esfera de los derechos fundamentales de los involucrados y en los principios democráticos de la institución donde laboran.

D.-) Sobre el resto de vicios de procedimiento En el mismo sentido que el voto salvado a la resolución número 2018-5758, suscrito por el Magistrado Cruz Castro y otros magistrados, y pese a no haber participado el Magistrado Cruz en la votación que resolvió sobre alegatos concretos de violaciones de procedimiento legislativo en sentencia n°2021-11957, ni tampoco en la resolución que le dio curso a esta acción, n°2022-008712, se procede a ratificar los vicios de procedimiento que se consideraron allí existen en la ley impugnada n°9544.

“XXIII.- Voto salvado de los Magistrados Cruz Castro, Salazar Alvarado y Hernández Gutiérrez.

Redacta el Magistrado Salazar Alvarado; y, Al contrario del criterio de la mayoría de la Sala, consideramos que el proyecto de ley denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo N° 19.922, presenta vicios de inconstitucionalidad, que invalidan el proyecto consultado, según las siguientes consideraciones:

ÚNICO.- Vicios en el procedimiento legislativo.

a.- Texto del proyecto de ley no consultado a la Corte Suprema de Justicia. Dentro de las dudas de constitucionalidad que plantean los consultantes, está la falta de consulta al Poder Judicial del texto sustitutivo aprobado en la sesión del 27 de julio de 2017 de la Comisión Especial. A juicio de los diputados y diputadas que plantean la consulta, ese proyecto de ley contiene una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial, lo que obliga a consultarlo a la Corte Suprema de Justicia, de conformidad con lo preceptuado en el artículo 167, de la Constitución Política. En concreto, aducen que el artículo 239, del proyecto de ley, crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la que define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le otorga. A dicha Junta, se le otorga independencia funcional y se le asigna una serie de competencias, tales como elevar el aporte obrero al Fondo de Pensiones, conocer solicitudes de jubilación, por citar algunas, con lo cual, a su entender, se produce una modificación en la estructura del Poder Judicial. De igual modo, al Consejo Superior del Poder Judicial, se le restan competencias, y, además, el artículo 240, del proyecto de ley, confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Por el contrario, aclaran que los textos sustitutivos anteriores sí fueron consultados a la Corte Suprema de Justicia, por lo que estiman contrario al Derecho de la Constitución que ello no se diera con respecto a este último texto.

Precisamente, a la base de la discusión, tal y como bien se afirma en el voto de mayoría, está la determinación de si, al tenor de lo dispuesto en el artículo 167, de la Constitución Política, el órgano legislativo estaba o no en la obligación de consultar el citado proyecto de ley al Poder Judicial, deber que, por lo demás, ha sido incorporado en los artículos 126 y 127, del Reglamento de la Asamblea Legislativa, en los cuales se estipula el procedimiento que ha de observarse al efecto. Del texto constitucional se colige, que la consulta obligatoria a la Corte Suprema de Justicia solo es tal si el proyecto de ley se refiere a la organización o funcionamiento del Poder Judicial. De modo, que el meollo del asunto está en lo que se ha de entender por “organización o funcionamiento del Poder Judicial”.

Al respecto, el voto de mayoría sostiene, que cuando la Carta Política Fundamental hace referencia a la organización y funcionamiento del Poder Judicial, se refiere -únicamente- a la afectación de la función jurisdiccional, y no de la propiamente administrativa. En abono de esta posición, se citan las Sentencias N° 1998-5958 de las 14:54 del 19 de agosto de 1998, N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 y N° 2008-5179 de las 11:00 horas del 4 de abril de 2008. Asimismo, en relación con el tema concreto del Fondo de Pensiones y Jubilaciones del Poder Judicial y la obligación de la Asamblea Legislativa de consultar a la Corte Suprema de Justicia los proyectos de ley que versan sobre aquel, el voto de mayoría cita las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, con base en las cuales concluye, que en esos casos, la Asamblea Legislativa no está obligada a consultar el proyecto de ley a la Corte Suprema de Justicia, en los términos dispuestos en el artículo 167, Constitucional. Sin embargo, a criterio de los suscritos, tal interpretación del numeral constitucional, restringida únicamente a la función jurisdiccional, no se deriva ni del texto de la Carta Fundamental, ni de la jurisprudencia de esta Sala. En efecto, en cuanto a los precedentes de cita, es de destacar, que con respecto a las tres primeras sentencias, de ellas no se infiere lo que, en su voto, sostiene la mayoría. Así, en la Sentencia N° 1998-5958 de las 14:54 del 19 de agosto de 1998, lo que se desarrolla es solo el término “funcionamiento” -del binomio “organización o funcionamiento”- del Poder Judicial, sin referirse al tema de la organización de ese Poder de la República. En concreto, en la cita que se hace de ese voto, la Sala claramente indica que “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados” (el destacado es agregado), con lo cual se hace evidente, que el tema de la organización -que es el que aquí interesa- no fue desarrollado en dicha resolución, simplemente, porque el caso no lo requería, ya que se trató de la consulta legislativa preceptiva de constitucionalidad sobre el proyecto de “Adición de un nuevo Capítulo IV, denominado “Del recurso de hábeas data”, al Título III de la Ley de la Jurisdicción Constitucional, ley Nº 7185 del 19 de octubre de 1989”, que se tramitó en el expediente legislativo número 12.827, donde el tema en discusión era que la reforma afectaba la función jurisdiccional del Poder Judicial. Que esto es así, se desprende del propio texto de la sentencia que no se cita con la debida amplitud en el voto de mayoría: “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados. Y, en Costa Rica, la jurisdicción constitucional es indudablemente judicial, desde que tanto la Constitución Política como la Ley de la Jurisdicción Constitucional integran a esta Sala dentro de la estructura de la Corte”. Hecha la cita en su contexto, no se puede inferir, que la Sala haya restringido el binomio “organización o funcionamiento” meramente a lo jurisdiccional, sino que, en el caso de cita, este Tribunal Constitucional únicamente se refirió al aspecto de la función jurisdiccional del Poder Judicial, porque era el tema en discusión, sin hacer exclusión, ni referirse al tópico de la organización administrativa de dicho Poder de la República. Lo mismo cabe decir en relación con la Sentencia N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 a la que alude la mayoría. Se trata de una consulta legislativa facultativa de constitucionalidad respecto del proyecto de ley de “Modificación del Código Penal, Ley número 4573 y sus reformas”, expediente legislativo número 14.158. Nuevamente, se trató de una reforma que afectaba directamente la función jurisdiccional del Poder Judicial, no su organización administrativa. De allí que, en este caso, tampoco la Sala desarrolló este último tema, por resultar ocioso. Es por ello, que la discusión de fondo se centró y agotó en los aspectos de la función jurisdiccional del Poder Judicial: “…dicha consulta [la del artículo 167, de la Constitución Política] resulta obligatoria cuando lo discutido en la Asamblea es un proyecto de ley que pretenda establecer reglas de funcionamiento y organización del Poder Judicial, entendido esto no apenas como las disposiciones que regulen la creación de tribunales de justicia o competencias jurisdiccionales, sino incluso aquellas que dispongan sobre modo de ejercicio de dichas competencias, es decir, sobre la forma en que el Poder Judicial lleva a cabo su función jurisdiccional, incluidas normas propiamente procesales” (el resaltado no pertenece al original). Ciertamente, es evidente que lo expresado se limitó a examinar lo relativo al ejercicio de las competencias jurisdiccionales de los Tribunales de Justicia, toda vez que era sobre ese aspecto en particular que versó la consulta. Pero, la Sala no dijo que este sea el único extremo en que la consulta del numeral 167, de la Constitución Política, sea obligatoria, sino que lo que dijo es que, en ese caso, es obligatoria, sin referirse a otros casos en que también lo sea, como lo es lo referente a la organización y competencias administrativas del Poder Judicial.

Comentario separado merece la Sentencia N° 2008-5179 de las 11:00 horas del 4 de abril de 2008, puesto que aquí, a diferencia de la lectura que hace la mayoría, sí se establece que lo relativo a la organización administrativa del Poder Judicial cae dentro de la consulta obligatoria que estipula el citado artículo 167, Constitucional. En esa ocasión, este Tribunal Constitucional, como intérprete máximo de la Constitución Política, al referirse a los términos de “organización o funcionamiento” del Poder Judicial, contenidos en el artículo 167, de la Carta Política, como condición de la consulta obligatoria a ese Poder de la República por parte de la Asamblea Legislativa, consideró “…que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas…” (el resaltado es agregado). No se trata de un cambio de criterio de este Tribunal en la materia, sino, dentro de la línea jurisprudencial ya trazada, de una mayor determinación de los términos “organización o funcionamiento” que emplea el artículo 167, de la Constitución Política, para establecer los casos en los cuales los proyectos de ley que estén en la corriente legislativa deben ser consultados -obligatoriamente- a la Corte Suprema de Justicia. Esta sentencia no amplió, en modo alguno, los supuestos de consulta obligatoria; por el contrario, lo que hizo fue definirlos de una manera más amplia y precisa. Por ello, allí claramente se determinó, que en esos casos, pero solo en estos, la consulta es obligatoria. Así se entiende que, en esa misma sentencia, se expresara: “[c]abe apuntar que tal exégesis se impone en aras de mantener el equilibrio de poderes, sin privilegiar a uno u otro órgano constitucional, de manera que cada uno pueda ejercer sus funciones de manera independiente y separada como lo impone el propio texto constitucional (artículo 9° de la Constitución). En otros términos, la precisión de tales conceptos evita cualquier colisión, extralimitación o exacerbación de las respectivas funciones, en aras de mantener el equilibrio y la contención de los poderes, por cuanto, el fin de la norma lo constituye no sólo la independencia funcional y la autonomía presupuestaria del Poder Judicial, sino, también, el equilibrio entre el Poder Legislativo y Judicial. En efecto, una interpretación amplia de los términos empleados por el constituyente originario, por parte de la Corte Plena, podría conducir a que determinadas materias que, en sentido estricto no están referidas a la organización y funcionamiento del Poder Judicial, ameriten, injustificadamente, de una ley reforzada, con lo cual se ralentiza o entorpece, innecesariamente, la función legislativa. De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equívocamente, que el proyecto no versa sobre organización y funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial”. De lo anterior se colige, que todo lo relativo a la materia de organización y funcionamiento del Poder Judicial, pero solo y estrictamente esto -para guardar el equilibrio entre independencia funcional y autonomía presupuestaria del Poder Judicial, por un lado, y la libertad de configuración del legislador ordinario, por otro-, es lo que obliga al órgano legislativo a realizar la consulta ante la Corte Suprema de Justicia, sin que se pueda extender a otras materias. En este sentido, no hay la menor duda, de que la Sala Constitucional ha entendido que lo relativo a la organización administrativa del Poder Judicial, y no solo lo concerniente a la afectación, directa o indirecta, de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167, de la Constitución Política. Y no podría ser de otra manera, ya que la afectación o modificación de la organización administrativa del Poder Judicial en general -y no solo lo atinente a los órganos jurisdiccionales o judiciales en sentido estricto- también repercute en el servicio de Administración de Justicia que presta, y en la independencia que constitucionalmente se garantiza a ese Poder y a los jueces como funcionarios llamados a impartir justicia.

Por otra parte, las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, que se citan en el voto de mayoría como fundamento para concluir que los proyectos de ley relativos al tema específico del Fondo de Pensiones y Jubilaciones del Poder Judicial no necesitan ser consultados a la Corte Suprema de Justicia, tampoco tienen la virtud de dar el fundamento que, en relación con esta materia, afirma que tienen la mayoría de la Sala.

En la primera de dichas sentencias, la Sala conoció unas acciones de inconstitucionalidad acumuladas planteadas contra la Ley Marco de Pensiones, Ley N° 7302 de 8 de julio de 1992. Este Tribunal, en aquella ocasión, lo único que afirmó es que, en el caso de la Ley Marco de Pensiones, no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley respectivo, por la sencilla razón, de que dicho proyecto no afecta a los servidores judiciales; y, por lo tanto, no cae dentro de lo preceptuado por el artículo 167, de la Constitución Política. Asimismo, en el voto de cita, se indica que el funcionamiento está referido a la función jurisdiccional, pero no hace alusión alguna al tema de la organización del Poder Judicial, que es de lo que aquí se trata.

De igual modo, en la Sentencia N° 2002-4258 de las 9:40 del 10 de mayo de 2002, la Sala conoció de acciones de inconstitucionalidad acumuladas interpuestas contra el artículo 4, de la Ley N° 7605, de 2 de mayo de 1996, en cuanto reforma los artículos 224, 226 y 236, incisos 1) y 2), de la Ley Orgánica del Poder Judicial, N° 7333 de 5 de mayo de 1993, así como, por conexidad y consecuencia, contra el artículo 33, inciso a), del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. La Sala descartó, entre otros temas alegados, la violación al artículo 167, de la Constitución Política, por el hecho de que la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho al respecto en la Sentencia N° 1995-3063 de las 15:30 del 13 de junio de 1995, que, como ya se dijo, solo se refirió al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. De modo tal, que, a diferencia del criterio externado por la mayoría, dichas sentencias no excluyen la materia relativa al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, sino solo en el tanto y en el cuanto el respectivo proyecto de ley no tenga relación directa con la “organización o funcionamiento del Poder Judicial”, temas que, ciertamente, no estaban involucrados en las acciones que se plantearon ante esta Sala y que fueron resueltas en las sentencias de cita. Con ello, no se excluye la materia concerniente al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, como lo entiende la mayoría, ya que este tema, en sí mismo considerado, no está excluido de dicha consulta, sino que ello dependerá de si el proyecto de ley en cuestión contiene o no regulaciones relativas a la organización o el funcionamiento de ese Poder, aspecto que habrá que determinar de previo en cada caso para así establecer la obligatoriedad o no de dicha consulta.

En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establecida en el artículo 9, y reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar, en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167, Constitucional. En este sentido, a criterio de los suscritos, es un grave error conceptual confundir o asimilar la función jurisdiccional en sentido amplio, con inclusión de la función auxiliar a la jurisdiccional, con la función estrictamente administrativa. La función jurisdiccional es una función especial y diferente a la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Una cosa es la Administración de Justicia y otra muy distinta la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa, aun cuando los jueces y los auxiliares judiciales sean también funcionarios públicos. Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la independencia, en su doble vertiente, tanto de Poder Judicial en sí mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. Basta para comprender la delicada tarea que realizan los jueces de la República, con la colaboración de los funcionarios que los asisten y los auxilian en sus funciones y sin los cuales aquellos no podrían ejercer debidamente su función, con tener presente que ellos deciden los casos sometidos a su conocimiento con fuerza de cosa juzgada; es decir, deciden cuál es la verdad con fuerza de autoridad de ley en cada caso, sin que su decisión, una vez alcanzada esa condición, pueda ser, en principio, revisada. Esto implica una función sumamente delicada y una gran responsabilidad, la cual no podría llevarse a cabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no pude haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De allí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios.

Existe consenso en la doctrina administrativa, en que la función jurisdiccional es, si no la más compleja, una de las más complejas y difíciles de llevar a cabo en el Estado Constitucional de Derecho en las sociedades modernas. Esto por cuanto, a diferencia de lo que se decida en los Poderes Legislativo y Ejecutivo, las decisiones del Poder Judicial, en ejercicio de la función jurisdiccional, son inapelables; es decir, tiene fuerza o autoridad de cosa juzgada. Esto no solo implica una gran responsabilidad, sino la necesidad de contar con una serie de principios y garantías que permitan el adecuado ejercicio de esa función. En este contexto, la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de esa delicada función. Corresponde al juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Pero esta independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función. Por ello, en materia de remuneración y jubilación, no puede equipararse con el sector administrativo. La necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica, en torno al tema objeto de esta consulta, que la jubilación o pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo. Lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad; y, por ende, en la paz social. En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho, es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia. La independencia judicial es una garantía institucional establecida a nivel constitucional, sea, en el rango más elevado de la jerarquía de las normas, al punto que también se encuentra estipulada como un Derecho Humano. En efecto, la Convención Americana de Derechos Humanos ha establecido, como derecho humano, el ser oído por un juez imparcial. Al respecto, en el artículo 8.1, se establece:

“Artículo 8. Garantías Judiciales.

1. Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazorazonable, por un juez o tribunal competente, independiente e imparcial, establecido conanterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contraella, o para la determinación de sus derechos y obligaciones de orden civil, laboral, fiscal ode cualquier otro carácter”. (La negrita no es del original).

La independencia judicial constituye un principio fundamental dentro del Estado Constitucional de Derecho. Pero esa independencia, para ser real, no solo debe ser organizativa y funcional, sino también económica. Esa independencia económica está también garantizada en el artículo 177, de la Constitución Política, al establecer que el proyecto de presupuesto ordinario deberá asignar al Poder Judicial al menos un 6% de los ingresos ordinarios calculados para el año económico. La intención del Constituyente originario, con la promulgación de esta norma -que establece un egreso constitucional atado-, es garantizar, entre otras cosas, que los jueces y el resto del personal auxiliar de la justicia, tuvieran una retribución adecuada a la complejidad y dificultad de la función jurisdiccional, lo que implica, una jubilación o pensión adecuada también a ello y a las prohibiciones especiales que dicha función implica para los servidores judiciales, las cuales no pesan sobre los servidores públicos de los otros Poderes del Estado. La norma constitucional previene que la asignación presupuestaria pueda convertirse en un instrumento de intervención política en la función jurisdiccional. Pero esto debe verse en toda su amplitud, ya que los salarios de los juzgadores y del personal auxiliar, así como el régimen de pensiones y jubilaciones que les es aplicable, tiene que guardar estricta relación con la labor que realizan, so pena de tornar nugatorio el principio de independencia judicial. De allí, que la independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Así las cosas, una forma de garantizar la independencia del Poder Judicial, de los Jueces de la República y de los auxiliares de justicia, es con una jubilación o pensión digna, acorde con sus funciones constitucionales.

En la exposición de motivos que dio lugar a la promulgación de la Ley de Jubilaciones y Pensiones Judiciales, como adición a la Ley Orgánica del Poder Judicial, el diputado Teodoro Picado Michalski, en fecha 2 de junio de 1938, expresó:

“Es el Poder Judicial uno de los tres principales sostenes en que descansa el Gobierno de la República; y es a sus servidores, a los que por ejercer muy delicadas funciones para la vida misma de la Sociedad, se exige, más que a otros empleados, mayor ilustración, probidad y trabajo. Y es por eso, seguramente, que al pedirse a los servidores judiciales una completa dedicación, durante largos años, a la importantísima tarea de administrar justicia, -con el noble fin de asegurarles su subsistencia al llegar a la vejez o cuando por padecimientos físicos ya no puedan trabajar,- que se ha venido instando ante el Congreso, en distintos períodos legislativos, la promulgación de una ley que contemple esa difícil situación de los funcionarios y empleados del Poder Judicial”.

No se debe soslayar, que las personas juzgadoras y el funcionariado judicial en general, está sometido a un régimen de prohibiciones y de incompatibilidades de mucha mayor intensidad y rigurosidad que el régimen de incompatibilidades y prohibiciones que afecta al resto de los funcionarios públicos, lo que lo hace de una naturaleza completamente distinta. Las regulaciones que se aplican al funcionariado administrativo de todo el sector público no pueden aplicarse también a los funcionarios judiciales. En este sentido, los principios de razonabilidad y proporcionalidad constitucional obligan a que ese régimen de incompatibilidades y prohibiciones asimétrico, que responde a la propia naturaleza de las funciones jurisdiccional y administrativa, deba tener una compensación económica, tanto salarial como al término de la relación laboral. Pero también el principio de igualdad, recogido en el artículo 33, de la Constitución Política, implica la prohibición de tratar como iguales a los desiguales, porque de ello se deriva una discriminación contraria al Derecho de la Constitución. En el caso de los jueces y funcionarios judiciales, existen condiciones objetivas, razonables, justificadas y fundadas en la propia naturaleza de la función jurisdiccional que se ejerce, para darles un trato diferente al del resto de los servidores públicos de las distintas administraciones, con lo cual, lejos de incurrirse en una discriminación, se tutela el principio de igualdad regulado en el citado numeral constitucional. Lo cual quiere decir, que si existe un régimen jubilatorio diferenciado para el sector jurisdiccional, ello no obedece a una decisión arbitraria, subjetiva o antojadiza del legislador, sino a la propia naturaleza específica y diferente de la función jurisdiccional que, objetiva y constitucionalmente, lo justifican.

Lo anterior no solo se deriva de nuestra propia Constitución Política y de los valores y principios que la informan, sino que está contenido en diversos instrumentos internacionales. Así, por ejemplo, en los “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11, se dice lo siguiente:

“11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas”. (El resaltado no es del original).

Con lo cual, las Naciones Unidas recomienda a todos los países del mundo, que las normas jurídicas deben garantizar a los jueces una remuneración, pensiones, condición de servicios y de jubilación adecuadas y proporcionadas a la complejidad y dificultad de la función jurisdiccional que ejercen. Lo cual debe entenderse, también, extensivo a los funcionarios auxiliares de la justicia, pues, de otro modo, tal independencia sería imposible.

De igual modo, en la “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, en aras de lograr una independencia real y efectiva del Poder Judicial y de los funcionarios que administran justicia, así como de sus colaboradores y auxiliares, en los párrafos 6.1 y 6.4, se establece lo siguiente:

“6.1 El ejercicio profesional de las funciones judiciales da derecho a la remuneración del / de la juez, cuyo nivel será determinado con el fin de preservarle de las presiones destinadas a influir en sus resolucionesy en general en su actuación jurisdiccional, alterando de ese modo su independencia e imparcialidad.

6.4 En particular, el estatuto asegurará al / a la juez que haya alcanzado la edad legal de cese en sus funciones, después de desarrollarlas a título profesional durante un período determinado, el pago de una pensión de jubilación cuyo importe se aproximará en lo posible al de su última retribución de actividad judicial”. (El destacado no es del original).

El citado instrumento pretende lograr un Poder Judicial real y efectivamente independiente, lo que es una garantía a favor de la ciudadanía. De modo tal, que la adecuada remuneración y pensión de los jueces y de los auxiliares de justicia, en los términos allí expresados, constituye la debida y razonable consecuencia del ejercicio de una función delicada y de mucha dificultad y responsabilidad.

También, el “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32, se hace eco de los mismos principios ya citados, al estatuir:

“Art. 32. Remuneración.

Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”. (El destacado no es del original).

Y, en el artículo 33, dispone:

“Art. 33. Seguridad Social.

El Estado debe ofrecer a los jueces su acceso a un sistema de seguridad social, garantizando que recibirán, al concluir sus años de servicio por jubilación, enfermedad u otras contingencias legalmente previstas o en caso de daños personales, familiares o patrimoniales derivados del ejercicio del cargo, una pensión digna o una indemnización adecuada”. (El destacado no es del original).

Debe tenerse presente, que la jubilación y la pensión forman parte de los Derechos Económicos, Sociales y Prestacionales contenidos en el Pacto Internacional de Derechos Económicos, Sociales y Culturales, adoptado y abierto a la firma, ratificación y adhesión por la Asamblea General de las Naciones Unidad, en su resolución 2200 A (XXI), de 16 de diciembre de 1966. Estas regulaciones también han sido acogidas en el Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces, dicho Consejo recomendó:

“…es generalmente importante (y especialmente en el caso de las nuevas democracias) fijar disposiciones legales específicas que garanticen unos salarios de jueces protegidos contra reducciones y que aseguren de facto “el aumento de los salarios en función del coste de vida”.

Estas recomendaciones son de total aplicación al tema de las pensiones y jubilaciones de los jueces y de los servidores judiciales en general, ya que están íntimamente relacionadas con el principio de independencia del Poder Judicial, tal y como ya ha quedado expuesto.

Pero no solo en el ámbito internacional se ha regulado esta materia en los términos dichos, sino que también ha sido objeto de regulación a lo interno del Poder Judicial, con consideraciones semejantes a las dichas.

En efecto, la Corte Plena aprobó el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces, en sus diferentes facetas. En el artículo 24, relativo a las condiciones materiales de la independencia judicial, se establece que el Estado debe garantizar “la independencia económica del Poder Judicial, mediante la asignación del presupuesto adecuado para cubrir sus necesidades y a través del desembolso oportuno de las partidas presupuestarias”, lo cual está íntimamente relacionado con lo dispuesto en el ya citado artículo 177, de la Constitución Política, en cuanto a la asignación constitucional de un mínimo del Presupuesto Ordinario para el Poder Judicial, como manifestación de esa independencia.

Asimismo, el artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez: “Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”. Como ya se explicó, esta especial regulación tiene su fundamento en la independencia del Poder Judicial, lo cual debe ser también extendido al tema de la pensión o jubilación de los jueces y del personal auxiliar de la justicia, pues de otro modo, el principio de independencia judicial no sería posible.

El respeto a la independencia judicial, que es uno de los fines que persigue el artículo 167, Constitucional, también fue objeto de regulación expresa en el Estatuto, artículo 20, al disponer que “[l]os otros Poderes del Estado y, en general, todas las autoridades, instituciones y organismos nacionales o internacionales, deben respetar y hacer efectiva la independencia de la judicatura”.Y, precisamente, la intromisión inconsulta del órgano legislativo en la organización y funcionamiento del Poder Judicial, sea creando, modificando o suprimiendo órganos o competencias, judiciales o administrativos, es constitucionalmente inadmisible, por constituir esto una flagrante violación al principio de independencia judicial.

Por último, cabe indicar, que la independencia del Poder Judicial es un principio que tiene una naturaleza particular y específica, distinta al de los otros Poderes del Estado, ya que consiste en un escudo de protección contra la intromisión del poder político, de lo cual no están protegidos los otros Poderes del Estado. Esto, debido a que el Poder Judicial es el que administra justicia y esta debe ser imparcial y libre de cualquier presión externa. Y, en este punto, la presión económica, bien por el salario o estipendio, bien por el monto y condiciones de la jubilación o pensión de los jueces y demás auxiliares de la justicia, juega un papel trascendente en la consecución de una independencia real y efectiva del Poder Judicial.

Con base en las consideraciones precedentes, corresponde, entonces, examinar el contenido del proyecto de ley en consulta con el fin de determinar si este afecta o no la organización o el funcionamiento del Poder Judicial, en los términos expresados.

En este orden de ideas, los consultantes, según se dijo supra, alegan que el artículo 239, del proyecto de ley en cuestión, crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la cual define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le otorga, órgano al que se le otorga independencia funcional y se le asigna una serie de competencias, entre otras, elevar el aporte obrero al Fondo de Pensiones y conocer de las solicitudes de jubilación, lo cual implica una modificación en la estructura del Poder Judicial. De igual modo, se restan competencias al Consejo Superior del Poder Judicial; y, además, en el artículo 240, del proyecto de ley, se confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Los mencionados numerales del proyecto disponen:

“Artículo 239- Se crea la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (Conassif) y la Superintendencia de Pensiones (Supén).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley.

Artículo 240- La Junta Administradora estará conformada por tres miembros que serán electos democráticamente por el colectivo judicial, así como por tres miembros designados por la Corte Plena, con perspectiva de género en ambos casos. Cada integrante titular tendrá un suplente para que lo sustituyan en sus ausencias, quien deberá cumplir con los mismos requisitos del titular.

Quienes integran la Junta durarán en sus cargos cinco años, luego de los cuales podrán ser reelectos, todo conforme con la reglamentación que al efecto habrá de dictarse por la Corte Plena, previa audiencia conferida a las organizaciones gremiales del Poder Judicial.

En la primera sesión ordinaria, la Junta designará a la persona que habrá de presidir las sesiones, esta designación se hará por un espacio temporal de un año, debiendo alternarse cada año entre los representantes del colectivo judicial y de la Corte Plena. Además, se designará a quien le sustituya en caso de ausencia. La persona que preside tendrá voto calificado en caso de empate.

Los miembros de la Junta Administradora no devengarán ninguna dieta pero sí contarán con los permisos necesarios para atender las sesiones. Para ser miembro de la Junta se deberá cumplir con los siguientes requisitos, los cuales deberán ser documentados y demostrados ante la Superintendencia de Pensiones (Supén):

• a)Contar con título universitario en carreras afines a la administración de un fondo de pensiones y estar incorporado al colegio profesional respectivo, cuando así corresponda.
• b)Ser de reconocida y probada honorabilidad.
• c)Contar con conocimientos y al menos cinco años de experiencia en actividades profesionales o gerenciales relevantes para la administración de un fondo de pensiones, de manera que todos los miembros de este órgano posean habilidades, competencias y conocimientos que les permitan realizar el análisis de los riesgos que afectan a la Junta y al Fondo.

No podrán ser miembros de la Junta:

• 1)Las personas contra quienes en los últimos diez años haya recaído sentencia judicial penal condenatoria por la comisión de un delito doloso.
• 2)Las personas que en los últimos diez años hayan sido inhabilitadas para ejercer un cargo de administración o dirección en la Administración Pública o en las entidades supervisadas por la Superintendencia General de Entidades Financieras (Sugef), la Superintendencia General de Seguros (Sugese), la Superintendencia de Valores (Sugeval) y la Superintendencia de Pensiones (Supén).

La integración del órgano deberá garantizar la representación paritaria de ambos sexos, asegurando que la diferencia entre el total de hombres y mujeres no sea superior a uno”.

De la lectura del artículo 239, transcrito, es claro que en él se crea un nuevo órgano dentro de la estructura del Poder Judicial, denominado “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial”, al que se le confiere completa independencia funcional, técnica y administrativa, para ejercer las facultades, competencias y atribuciones que le otorga la ley, enumeradas en los incisos a), b), c), d), e), f), g), h) e i), del propio artículo, para el cumplimiento de sus cometidos, para lo cual contará con personalidad jurídica instrumental. De tal manera, que se crea, ex novo, un órgano administrativo y se adscribe dentro de la estructura del Poder Judicial, con competencias y atribuciones determinadas; y, concomitantemente, se sustraen y eliminan competencias y atribuciones previamente otorgadas -por ley formal- al Consejo Superior del Poder Judicial. Esta sola circunstancia, por las razones dichas, obliga al órgano legislativo a consultar -necesariamente- el proyecto al Poder Judicial, en los términos dispuestos en el artículo 167, de la Constitución Política, ya que ello modifica la organización administrativa del Poder Judicial, con la creación de un nuevo órgano administrativo, y la supresión de competencias del Consejo Superior en favor de ese órgano de nueva creación, lo que, claramente, afecta la independencia de ese Poder de la República.

Lo mismo cabe decir en relación con el artículo 240, del proyecto de ley consultado, en el tanto en él se abordan temas propios de la organización administrativa del Poder Judicial, en torno a la conformación y designación de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, su duración en los cargos, la designación de la persona que ha de presidirla y los requisitos para poder ser miembro de esa Junta, entre otros. Es de destacar, que aun cuando la Corte Plena está facultada, por la Ley Orgánica del Poder Judicial, para dictar los reglamentos internos que sean necesarios para el buen funcionamiento del Poder Judicial, el hecho de que, por medio del proyecto de ley en consulta, se le imponga la obligación de reglamentar lo relativo a la duración en los cargos de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, sin que el texto sustitutivo del proyecto, que fue finalmente aprobado en Primer Debate, haya sido consultado a la Corte Suprema de Justicia, implica una grave intromisión en las competencias del órgano máxima jerarquía del Poder Judicial, con afectación de la organización de ese Poder de la República, en contravención de la consulta obligatoria preceptuada en el artículo 167, de la Constitución Política; y, por ende, una lesión a la independencia judicial. A simple vista, la citada normativa, ahora consultada por los representantes del pueblo, le quita, al Presidente de la Corte Suprema de Justicia, y por consiguiente, al Presidente del Consejo Superior del Poder Judicial, la competencia que le da la Ley Orgánica del Poder Judicial, de administrar el Fondo de Pensiones y Jubilaciones del Poder Judicial, precisamente de acuerdo con las políticas de inversión establecidas por la Corte Plena, tal y como actualmente está contemplado en el artículo 81, inciso 12.

No obstante lo anterior, el reparo de los consultantes es que el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, no fue consultado a la Corte Suprema de Justicia, a pesar de contener una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial. Sin embargo, tal y como se afirma en el voto de mayoría, a folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017, por la Comisión Especial, por oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, con base en lo cual, la Corte Suprema de Justicia emitió su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según consta a folios 2759 a 2807 del expediente legislativo. Esto significa, entonces, que el Poder Judicial sí fue consultado y externó su criterio en relación con el texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, lo que se produjo incluso antes de que dicho texto fuera conocido por el Plenario.

A pesar de ello, dicho texto no fue el que se aprobó en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance N° 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, ya que el que se aprobó en Primer Debate es un texto sustitutivo introducido por moción vía artículo 137, del Reglamento de la Asamblea Legislativa. Este último texto no fue consultado a la Corte Suprema de Justicia, tal y como correspondía, según lo analizado supra, al tenor de lo dispuesto en el artículo 167, de la Constitución Política.

Este punto, si bien no fue alegado de manera expresa por los consultantes, no es óbice para que la Sala, de oficio, entre a examinarlo, ya que se trata de un vicio esencial en el procedimiento legislativo en la tramitación del proyecto de ley consultado. Al respecto, cabe destacar, que este Tribunal Constitucional tiene competencia para conocer y pronunciarse -de oficio- sobre cualquier aspecto de constitucionalidad que detecte al revisar un expediente legislativo en el que se tramite un determinado proyecto de ley, en vía de consulta legislativa de constitucionalidad, sin importar si ese determinado aspecto no fue objeto de consulta. Esto se deriva del texto del artículo 101, de la Ley de la Jurisdicción Constitucional, que indica:

“Artículo 101.- La Sala evacuará la consulta dentro del mes siguiente a su recibo, y, al hacerlo, dictaminará sobre los aspectos y motivos consultados o sobre cualesquiera otros que considere relevantes desde el punto de vista constitucional.

El dictamen de la Sala sólo será vinculante en cuanto establezca la existencia de trámites inconstitucionales del proyecto consultado.

En todo caso, el dictamen no precluye la posibilidad de que posteriormente la norma o normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad”. (El destacado no es del original).

Al respecto, también la doctrina nacional ha expresado:

“En lo relativo al contenido del parecer emitido por la Sala Constitucional, no existe un congruencia absoluta y rígida entre los motivos o aspectos consultados y la opinión vertida por la Sala, puesto que, la Sala Constitucional bien puede, ex officio, emitir su parecer “sobre cualesquiera otros que considere relevantes desde el punto de vista constitucional” (artículo 101, párrafo 1°, LJC), los que incluyen, desde luego, tanto los vicios formales del procedimiento legislativo no consultados como cuestiones sustanciales o de fondo contenidas en el proyecto y no observadas por los consultantes”. (Jinesta Lobo, Ernesto. Derecho Procesal Constitucional, Primera Edición, Editorial Guayacán, San José, Costa Rica, pág. 334).

De manera, que, si como en este caso, la Sala, al examinar el expediente legislativo, determina que en el procedimiento de formación de la ley de un proyecto se incurrió en algún vicio esencial, o si su contenido resulta contrario al Derecho de la Constitución, bien puede pronunciarse de oficio al respecto, no solo porque la ley que regula su funcionamiento así lo contempla, sino también por resultar ello razonable y conforme con una sana economía procesal, pues no tendría sentido que la Sala pasara por alto la inconstitucionalidad detectada en el proyecto de ley por el solo hecho de que los consultantes no la hayan advertido, a la espera de que luego, por vía de acción de inconstitucionalidad sea reclamada y tenga que pronunciarse al respecto, con la correspondiente declaratoria de inconstitucionalidad de una ley ya vigente, con las consecuencias perjudiciales que ello podría implicar para el ordenamiento jurídico. En este sentido, sería absurdo permitir la aprobación legislativa de una ley que contiene una inconstitucionalidad, sea en el trámite legislativo o en la normativa de fondo, que a la postre tendrá que ser declarada. Máxime si se trata, como en este caso, de un vicio en la tramitación del proyecto consultado, que resulta vinculante para el órgano legislativo. Por ello, el vicio detectado en el procedimiento legislativo del proyecto de “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo número 19.922, por la omisión de consultar a la Corte Suprema de Justicia el texto sustitutivo aprobado en Primer Debate, debe ser declarado de oficio, toda vez que esto viola lo dispuesto en el artículo 167, de la Constitución Política, al afectar la organización administrativa del Poder Judicial, por la creación de un nuevo órgano administrativo dentro de su estructura, otorgarle competencias sustanciales en materia de pensiones y jubilaciones; y, a la vez, suprimir competencias otorgadas previamente por ley al Consejo Superior del Poder Judicial (artículos 239 y 240 del proyecto).

Esta Sala, en abono de lo anterior, en la Sentencia N° 2001-13273, de las 11:44 horas del 21 de diciembre de 2001, al evacuar una consulta legislativa de constitucionalidad sobre un proyecto de ley de reforma al Código Penal, en cuanto modifica aspectos relativos a la organización o funcionamiento -meramente administrativa- del Archivo Judicial, sostuvo, por unanimidad, que:

“De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial. A pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia (al menos la misma no consta en la copia certificada del expediente remitida por el Presidente del Directorio), sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que estima la Sala que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia funcional reconocida por el constituyente al Poder Judicial, y en ese sentido debe entenderse que el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado”. (El resaltado es agregado).

Nótese por lo dicho, que el vicio apuntado no se subsanaría aun cuando, en segundo debate, el proyecto sea aprobado por mayoría calificada, pues esto solo sería así si se tratase de la aprobación de un texto de obligada consulta al Poder Judicial, por afectar su organización, estructura y funcionamiento -como en este caso-, y, una vez consultado a la Corte Suprema de Justicia, el órgano legislativo persistiera en aprobarlo apartándose del criterio técnico del órgano judicial. Pero de lo que aquí se trata, es de la aprobación -en Primer Debate- de un texto inconsulto, en contravención de lo preceptuado en el artículo 167, de la Constitución Política, vicio de procedimiento que resulta insalvable e insubsanable. Esto por cuanto, si bien es cierto, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, fue consultado a la Corte Suprema de Justicia, este texto no fue el que, finalmente, se aprobó en Primer Debate, sino un nuevo texto sustitutivo que, de previo, no fue consultado, no obstante tener relación directa con la organización, estructura y funcionamiento del Poder Judicial, según ha quedado expuesto. Y aún más, si bien el anterior texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 sí fue consultado a la Corte, al haber esta mostrado disconformidad con el texto, hacía obligada una votación calificada por el Pleno, al tenor del artículo 167, de la Carta Fundamental, lo que tampoco se hizo así.

La Corte Plena, en Sesión N° 27, del 7 de agosto de 2017, Artículo XXX, al evacuar la consulta a la Asamblea Legislativa sobre el Dictamen Afirmativo de Mayoría, aprobado por la citada Comisión Especial, dispuso:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aun y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundaría en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Tomando en cuenta las observaciones planteadas al Proyecto de Ley tramitado bajo el expediente 19922 (20035), las cuales encuentran apego y sustento en el estudio actuarial realizado por el IICE y con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la mayoría calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 08 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalar la incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Corolario, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial”. (La negrita no es del original).

La parte final, del citado artículo constitucional (167), expresa literalmente que “para apartarse del criterio de ésta [La Corte], se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea Legislativa”; y, dicho texto final, -no consultado en todo caso- se aprobó por la Asamblea Legislativa el 30 de octubre de 2017, con solo treinta y un votos (folios 4000 y 4173 del expediente legislativo).

b.- Falta de publicidad del texto sustitutivo aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016. Del estudio del iter legislativo, ha quedado establecido, que el texto sustitutivo del proyecto de ley en consulta, aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016, no fue publicado, tal y como lo plantean los diputados consultantes y quedó debidamente acreditado por la prueba rendida por el Director Ejecutivo de la Asamblea Legislativa el 12 de marzo de 2018. Por otra parte, de conformidad con las reglas fijadas por el procedimiento especial aprobado por la Asamblea Legislativa para el expediente número 19.922, en Sesión Ordinaria N° 37 del 30 de junio de 2016, con base en lo dispuesto en el artículo 208, bis, del Reglamento de la Asamblea Legislativa, esa publicación era obligatoria, lo cual se desprende claramente del inciso h, del punto 2, “Mociones de Fondo”, del procedimiento en cuestión, que a la letra dice:

“h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto…”. (El resaltado no es del original).

La mayoría de la Sala estima que esa falta de publicidad -hecho sobre el que no hay discusión- no afecta el trámite del proyecto de ley; y, por ende, no constituye un vicio esencial del procedimiento, toda vez que, en definitiva, ese no fue el texto que aprobó la Comisión Especial el 27 de julio de 2017, texto sustitutivo, este último, que sí fue publicado en el Alcance N° 189 de la Gaceta Digital N° 147 del 4 de agosto de 2017.

Sin embargo, a juicio de los suscritos, tal razonamiento no es de recibo; esto por cuanto, en primer lugar, las reglas que acordó el Plenario Legislativo para la tramitación por procedimiento especial del proyecto de ley en consulta, vía artículo 208, bis, del Reglamento Legislativo, resultan de obligado y estricto cumplimiento, habida cuenta de que se trata de un procedimiento mucho más restrictivo que el ordinario, donde, de modo particular, deben observarse los principios democrático y de publicidad. Además, independientemente de que el texto en cuestión fuese o no el que, finalmente, fue aprobado por Comisión Especial el 27 de julio de 2017 -que sí fue publicado-, la falta de publicación es un vicio esencial en sí mismo considerado, por lo que el hecho de que, con posterioridad, dicho texto fuera sustituido por otro que sí se publicó, no tiene la virtud de subsanar el vicio apuntado.

Lo anterior ya ha sido sostenido por esta Sala, al evacuar las Consultas Legislativas Facultativas de Constitucionalidad presentadas con respecto a la aprobación del proyecto de ley denominado “Ley de Solidaridad Tributaria”, que se tramitó en el expediente legislativo N° 18.261, ocasión en la que, por Sentencia N° 2012-004621 de las 16:00 horas del 10 de abril de 2012, dijo:

“VII.- Este Tribunal Constitucional advierte que cuando la Asamblea Legislativa, vía moción de orden del artículo 208 bis del Reglamento, crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa y estricta. El procedimiento especial creado a través del artículo 208 bis, como tal, es una excepción a las reglas de los procedimientos legislativos ordinarios que es consentida por una mayoría calificada, pero, como tal, será, siempre, una excepción. El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado, evita cualquier infracción a los principios de la seguridad jurídica (enfatizado por este Tribunal en el Voto No. 398-2005 de las 12:10 hrs. de 21 de enero de 2005) y democrático. Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una mayoría agravada.

VIII.- VICIO ESENCIAL DEL PROCEDIMIENTO DE CARÁCTER EVIDENTE Y MANIFIESTO AL OMITIRSE LA PUBLICACIÓN DE UN NÚMERO SIGNIFICATIVO DE MOCIONES DE FONDO APROBADAS EN LA COMISIÓN ESPECIAL QUE, EN CONJUNTO, MODIFICARON SUSTANCIALMENTE EL PROYECTO ORIGINAL. De otra parte, los diputados consultantes manifiestan que, pese a lo estipulado en el apartado I.2.h., del procedimiento legislativo especial, durante su trámite se omitió publicar una serie de cambios realizados al proyecto que mermaron la expectativa recaudatoria, la cual, originalmente, fue planteada en un 2% y que, posteriormente, bajó entre un 0.5% y un 1% del PIB. Específicamente, indicaron que se omitieron publicar las mociones Nos. 92, 128, 221, 222, 225, 227, 262, 267, 623, 624, 639, 5189-208 bis, 650, 661, 662, 674, 761, 778, 1717, 1786, 1843, 3767, 2325, 3771, 3879, 3991, 4128, 4129, 4157, 4241, 4242, 4243, 4244, 4245, 1375-208 bis, 1378-208 bis, 1379-208 bis, 1382-208 bis, 1383-208 bis, 1384-208 bis, 1388-208 bis, 4940-208 bis, 5142-208 bis, 5143-208 bis, 5144-208 bis, 5145-208 bis, 5146-208 bis, 5165-208 bis, 5166-208 bis, 5190-208 bis, 5193-208 bis, 5194-208 bis, 5215-208 bis, 5219-208 bis y 5428-208 bis. No obstante, de previo, resulta oportuno aclarar que esta Sala no entrará a conocer lo referente a las mociones Nos. 92, 225, 639, 5189-208 bis y 4245. Debe observarse que el contenido de la moción No. 92, no hace referencia a lo que manifiestan los diputados consultantes. Si bien los citados legisladores argumentan que dicha moción versa sobre la exoneración a los insumos de pesca del pago del impuesto sobre las ventas, lo cierto es que la misma guarda relación con el plazo para presentar las declaraciones del impuesto sobre la renta. Por su parte, la moción 225, únicamente, aclaró que el monto total del salario escolar que se encuentra exento del pago del impuesto de la renta comprende tanto a los trabajadores públicos como a los privados. De igual forma, la moción 639 no versa sobre lo que los consultantes señalan en el presente asunto. La moción se encuentra referida a la exención del pago del impuesto sobre las ventas al cobro de comisión por retiro de dinero en cajeros automáticos y no, como lo sostienen los legisladores, a la exoneración de un 50% del impuesto a las utilidades a las entidades empresariales del Estado. En todo caso, los mismos consultantes señalan que dicho beneficio fue eliminado, posteriormente, mediante la moción 5189-208 bis. Asimismo, la moción 4245, únicamente, aclara que se mantendrá el tratamiento fiscal para los sistemas de pensiones establecido en la Ley de Protección al Trabajador. Ahora bien, en cuanto al resto de mociones, resulta menester señalar que el principio de publicidad en el trámite legislativo resulta de significativa y especial relevancia tratándose de la materia tributaria, habida cuenta que debe existir una absoluta transparencia de todas las modificaciones que sufra un proyecto sobre la materia, dado el carácter general de la potestad tributaria y del principio de igualdad en el sostenimiento de las cargas públicas. Es así como cualquier modificación sustancial de un proyecto de ley de tal naturaleza debe estar sometida a una intensa y escrupulosa publicidad. De conformidad con el apartado I.2.h. del procedimiento especial aprobado ex artículo 208 bis “Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad”. En la presente consulta, es evidente que el abundante número de mociones de fondo aprobadas, en su conjunto, produjeron un cambio sustancial del proyecto original, empezando por la modificación y reducción de las tarifas de algunos de los impuestos para ciertos sujetos, bienes y servicios, así como el establecimiento de exoneraciones o exenciones a distintos sujetos de derecho público y privado y actividades, la introducción de algunos beneficios fiscales, el establecimiento de regímenes transitorios especiales, etc. Tales mociones de fondo, ciertamente, versan sobre la materia regulada por el proyecto original y debidamente publicado, pero, su sumatoria, produce una cambio sustancial de tal entidad y magnitud que, por tratarse de la materia tributaria, exige una publicidad acentuada y calificada, habida cuenta que los ciudadanos tienen derecho a saber y conocer las razones por las cuales determinados sectores, grupos, sujetos, actividades, bienes y servicios son exonerados, sometidos a una tarifa reducida o diferenciada o a un régimen de beneficios fiscales o exenciones o a uno transitorio diferente, de manera diversa al resto de los contribuyentes. La publicidad en materia tributaria tiene mayor importancia por la generalidad e igualdad que debe existir en materia de imposición de las cargas impositivas. Nótese que ha sido un hecho público y notorio, exento de prueba, que la expectativa recaudatoria contenida en el proyecto original, fue, sustancialmente, reducida con las mociones de fondo aprobadas. Según se desprende de la revisión integral de los doscientos catorce tomos del expediente legislativo y del oficio del Presidente de la Asamblea Legislativa No. Pal-1612-2012 de 10 de abril de 2012, recibido por este Tribunal el 10 de abril pasado, tales mociones de fondo no fueron publicadas en el Diario Oficial La Gaceta. Específicamente, sobre este punto en el oficio citado, el Presidente de la Asamblea Legislativa manifestó lo siguiente:

“Respecto de la solicitud que se hace en la cédula de notificación del 9 de abril de 2012 de las 16:50 horas respecto del expediente No. 12-003518-0007-CO, consulta legislativa facultativa interpuesta por señores Adonay Enríquez Guevara y otros, respondemos lo siguiente. Tal y como nos lo certifica el Lic. Marcos William Quesada Bermúdez en el oficio SD-98-11-12 del 9 de abril del año presente y que adjuntamos, del proyecto # 18.261 Ley de Solidaridad Tributaria, sólo se registra en el trámite la publicación de su texto base, o texto inicial del mismo en la Gaceta 187, Alcance 70 del 29 de septiembre de 2011. Ningún otro texto actualizado fue publicado ya que, ni la Comisión respectiva tomó ningún acuerdo para solicitárselo al Directorio Legislativo, ni lo hizo así la Presidencia de la Comisión propiamente. Por otra parte las mociones de orden en el Plenario Legislativo tendientes a aprobar su publicación, fueron sistemáticamente rechazadas por la mayoría de los señores y señoras diputadas, por todo lo cual no se llevó a cabo dicha publicación”.

Consecuentemente, de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original”.

De manera tal, que al no haberse observado, de forma estricta, el procedimiento especial establecido vía artículo 208, bis, del Reglamento de la Asamblea Legislativa, en la tramitación del proyecto de ley en consulta, por haberse omitido la publicación del texto sustitutivo del proyecto de ley en consulta, aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016, se incurrió en un vicio esencial en el procedimiento legislativo de formación de la ley, con violación del principio democrático y de publicidad, sin que la sustitución, en definitiva, de dicho texto, pueda convalidar el procedimiento.

Así lo determinó también esta Sala en la Sentencia N° 2015-001241, de las 11:31 horas del 28 de enero de 2015, al declarar inconstitucional varios artículos de la Ley de Impuesto a las Personas Jurídicas, N° 9024 del 23 de diciembre de 2011, por violación al principio de publicidad, al disponer:

“Del análisis anterior y, particularmente de lo resaltado, se desprende que el texto sustitutivo no publicado introdujo dos sanciones que inmovilizan cualquier sociedad, tales como la no emisión de certificaciones de personería jurídica y la cancelación de inscripción de documentos a los morosos. En tal sentido se aprecia, igualmente, que en el texto sustitutivo se aprobaron cuestiones esenciales del impuesto, relativas a las sanciones, que no estaban previstas en el proyecto de ley original y que, por lo tanto, ameritaban garantizar el principio constitucional de publicidad. Como corolario del examen realizado, se concluye que los artículos 1, 3 y 5 de la Ley No. 9124, Impuesto a las Personas Jurídicas, son inconstitucionales a la luz de lo dispuesto en el artículo 73, inciso c), de la Ley de la Jurisdicción Constitucional. Lo anterior, por cuanto, en la formación de la ley en cuestión se violentaron requisitos o trámites sustanciales relativos a la publicidad del proyecto, principio que, como se ha venido reiterando, es básico en un Estado Constitucional de Derecho, más aún, cuando de materia tributaria se trata. En efecto, la omisión de realizar una nueva publicación del proyecto de ley, a fin de garantizar la publicidad del texto, así como, procurar la más amplia participación ciudadana e institucional, violentó un aspecto esencial en el procedimiento parlamentario, cuya omisión acarrea un vicio de inconstitucionalidad sobre el procedimiento legislativo”. (El resaltado no es del original).

c.- Publicación tardía del texto sustitutivo del proyecto de ley aprobado en Primer Debate por el Plenario Legislativo. Del expediente legislativo N° 19.922, se desprende que el texto sustitutivo aprobado en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, fue publicado en el Alcance 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, en tanto esta consulta fue planteada el 1 de noviembre de 2017. Es decir, que no solo dicho texto fue publicado en forma extemporánea, luego de ser aprobado en Primer Debate, sino que al momento de la presentación de la consulta ante este Sala no había sido publicado, con lo cual se produjo, también, otra violación al principio de publicidad; y, por ende, a un trámite esencial del procedimiento legislativo. La publicación del texto sustitutivo del proyecto de ley debió haberse producido antes de su aprobación en primer debate, ya que, al haberse hecho con posterioridad, se violó, asimismo, el principio democrático, al impedir, a la ciudadanía, conocer, de previo a su aprobación, el texto sustitutivo del proyecto. En tales circunstancias, la publicación tardía tiene, sobre el procedimiento legislativo, los mismos efectos que la no publicación, ya que la finalidad de la publicación -sea, que la población conozca, de previo a su aprobación, el texto final del proyecto de ley y pueda fiscalizar debidamente la labor legislativa- se tornó en nugatoria, vicio esencial en el procedimiento legislativo que no puede ser salvado por la publicación posterior. Así, lo dicho en el considerando anterior, con respecto a la no publicación del texto aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016, es de plena aplicación a la publicación tardía del texto sustitutivo, una vez aprobado en Primer Debate, debido a que una publicación tardía de un proyecto de ley, equivale a la no publicación del proyecto.

Con base en las anteriores consideraciones, estimamos que el proyecto de ley consultado a la Sala Constitucional adolece de varios vicios esenciales de procedimiento que lo afectan en su totalidad y que lo tornan contrario al Derecho de la Constitución, razón por la cual, resulta inconducente entrar a analizar los alegatos de fondo planteados por los consultantes contra el contenido sustancial del proyecto de ley en cuestión. En los términos dichos, diferimos del criterio de la mayoría y dejamos así evacuada esta consulta legislativa relativa al proyecto de ley denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo N° 19.922.

XXIV.-El Magistrado Cruz Castro expone razones adicionales al voto salvado.

• 1)Nota aclaratoria sobre la falta de publicación del proyecto como un vicio esencial Tal como se indica en el voto de mayoría, el texto sustitutivo en la Comisión, aprobado el 13 de setiembre del 2016, no fue publicado. Aunque posteriormente, el texto fue aprobado por la Comisión el 27 de julio del 2017 y publicado el 04 de agosto del 2017; y aunque luego el texto aprobado en primer debate fue publicado hasta el 9 de noviembre del 2017. En este contexto, no puede ignorarse que la moción que norma el procedimiento de aprobación del proyecto consultado, señala que se debe publicar en caso de que haya un texto sustitutivo. Por lo tanto, se trató en esta hipótesis de una transgresión a lo indicado en la moción que norma el procedimiento (por por demás, por tratarse de la aplicación del artículo 208 bis hace que dicha moción haga las veces de normas reglamentarias en ese proyecto en concreto), siendo que cualquier tipo de publicación normada, es un requisito esencial. Por tratarse de un procedimiento legislativo abreviado, con mayor rigor debe respetarse el principio de publicidad de las normas discutidas o aprobadas. La debilidad de un procedimiento abreviado requiere una aplicación más rigurosa de la exigencia de publicidad, sin admitir una convalidación respecto de un requisito tan importante como la publicidad. Por otro lado, la publicidad de los proyectos de ley es la única forma en que la actividad de los representantes populares trasciende a toda la población. Es la proyección de la actividad parlamentaria hacia el exterior, operando como una garantía constitucional que impide que el parlamento actué de espaldas a la ciudadanía. A diferencia de otros asuntos en donde he considerado que la falta de publicación no ha sido un vicio esencial, en este caso considero que lo es, por tres razones: porque la norma que regula el procedimiento así lo indica, porque se trata de un texto sustitutivo, y además porque, la falta de publicación no permitió el conocimiento de la población del texto que se estaba discutiendo en ese momento, impidiendo, además, que la ciudadanía pudiera realizar manifestaciones sobre lo que pretendía el parlamento con el proyecto de ley. En este caso, tampoco se discute si se omitió la publicación de unas normas que no variaban la esencia del proyecto, es que en este asunto, se omitió, totalmente, la publicidad durante el desarrollo de un procedimiento legislativo abreviado, que como lo expresé, debilita totalmente los principios constitucionales que rigen el procedimiento parlamentario.” E.-) Sobre cómo se violentó el artículo 167 Constitucional Luego, en el mismo sentido que el voto salvado a la resolución número 2022-10593, de los Magistrados Salazar, Garita y Jara, con redacción del primero, considero que hay una violación al artículo 167 Constitucional:

“… en el procedimiento legislativo se incurrió en una violación grosera, manifiesta y evidente del artículo 167, de la Constitución Política, y que, por su relevancia, demanda la inconstitucionalidad de la totalidad de la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”.

Debe empezarse por señalar, que la Comisión Especial encargada para la tramitación del expediente legislativo N° 19.922, puso en conocimiento de la Corte Plena los respectivos proyectos de ley que se iban aprobando, para cumplir con lo establecido en el citado numeral 167. Las consultas a la Corte Suprema de Justicia ocurrieron en tres ocasiones; a saber:

• a)El proyecto de ley se consultó a la Corte Suprema de Justicia y el informe rendido se conoció en la sesión de Corte Plena N° 29-16 del 26 de septiembre de 2016, artículo XVIII, comunicándose a la Asamblea Legislativa, mediante oficio SP-288-16 del 28 de septiembre de 2016 con la indicación expresa de que el proyecto de ley consultado incide en la organización y funcionamiento del Poder Judicial.
• b)En una segunda ocasión, la Corte Plena en sesión N° 9-17 del 24 de abril de 2017, artículo XXIX, conoció la consulta que se le planteó y mediante oficio SP-118-17 de 26 de abril de 2017, en el que se puso en conocimiento de la Comisión Especial Legislativa que la Corte Plena había emitido el criterio negativo al proyecto de ley consultado, por incidir en la organización y funcionamiento del Poder Judicial.
• c)En una tercera ocasión, la Corte Plena en sesión N° 26-17 de 7 de agosto de 2017, artículo XXX, conoció de la consulta planteada por la Comisión Especial sobre el Dictamen Afirmativo de Mayoría, y se emitió el criterio negativo indicando que el proyecto de ley tramitado bajo expediente N° 19.922, incide en la organización, estructura y funcionamiento del Poder Judicial; decisión que se comunica a la Asamblea Legislativa mediante oficio SP-253-17 de 10 de agosto de 2017.

En todas y cada una de las consultas formuladas, la Corte Plena estableció que se trataba de proyectos de ley que afectaban su organización y funcionamiento, de modo que, con base en ese criterio negativo, de conformidad con el artículo 167, de la Constitución Política, y los principios de coordinación, respeto mutuo e igualdad, que informa las relaciones entre órganos constitucionales, entre dos poderes del Estado [sistema de frenos y contrapesos, checks and balances], se debía aprobar la ley con mayoría calificada. Además, se debe mencionar que el último de los proyectos que fue el Dictamen Afirmativo de Mayoría aceptado por la Comisión Especial el 27 de julio de 2017, no fue ese el final. Por el contrario, el texto del proyecto fue objeto de mociones de fondo y reiteración aceptadas por la Comisión Especial, sobre las que votó posteriormente el Plenario Legislativo en Primer Debate, en la sesión extraordinaria N° 14 del 30 de octubre de 2017 (folios 4000, 4306 a 4327 del expediente legislativo). De este modo, el texto votado por el Plenario Legislativo en Primer Debate fue el texto modificado manteniendo algunos de los puntos sobre los cuales la Corte Plena había emitido su criterio negativo, entre ellos, la instalación de una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial en perjuicio de las competencias del Consejo Superior del Poder Judicial. Pero además, debe indicarse que contenía otros cambios sustanciales al proyecto de ley, entre ellos los que agravaron algunas condiciones para los funcionarios judiciales, para el goce y disfrute del derecho a la pensión y jubilación, situación que la Corte Plena debía pronunciarse -respecto del artículo 167, Constitucional- por su relevancia en el Derecho de la Constitución. Estas modificaciones fueron votadas en el Primer Debate, y quedaron aprobadas en el Segundo Debate. Lo anterior, sin haberse hecho la consulta institucional al proyecto aprobado en Comisión y que posteriormente fue votado por el Plenario en la sesión extraordinaria N° 14 del 30 de octubre de 2017.

Si bien, la Asamblea Legislativa consideró era innecesario hacer la consulta al Poder Judicial del texto final, aprobado en Comisión Especial del 27 de julio y las subsiguientes modificaciones realizadas por mociones de fondo y reiteración, y continuar con el trámite legislativo siguiendo el criterio de la Sala la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, dado que esas modificaciones al régimen de pensiones del Poder Judicial no afectaban la estructura y funcionamiento del Poder Judicial, ni el contenido esencial de la independencia judicial, ello no es de recibo para los suscritos juzgadores, como se desarrollará más adelante. Además, hay un patrón de agravamiento a las condiciones de los funcionarios del Poder Judicial que se pueden enumerar de algunas disposiciones que fueron modificadas por las mociones de fondo y de reiteración que quedaron plasmados en el texto aprobado en Comisión, que implicaban un cambio sustancial en el proyecto anteriormente consultado. Como se indicó, este último texto fue aprobado en Primer Debate el 30 de octubre de 2017, según el cual, con un ejercicio de comparación, se observan algunas de las siguientes modificaciones sustanciales de consideración, como por ejemplo las siguientes:

• a)En el artículo 224, se estableció el agravamiento de un 85% del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en la vía laboral, y se modifica para establecerlo en un 82% del promedio de los últimos veinte años de salarios mensuales ordinarios.
• b)En el artículo 229, similar disminución corrió el régimen por sobrevivencia, donde por la muerte del servidor activo la cuantía por viudez, unión de hecho u orfandad disminuiría de un 85% a un 80%.
• c)En el artículo 227, similar ocurre por la incapacidad permanente (invalidez) del funcionario de un 85% a un 83%.
• d)En lo que respecta a los ingresos del fondo de pensiones y jubilaciones del Poder Judicial, se evidencia que se establecía un aporte obrero de entre un once por ciento (11.00%) y un quince por ciento (15%) de los sueldos que devenguen los servidores judiciales, y de las jubilaciones y pensiones a cargo del fondo. Finalmente, quedó aprobado en un trece por ciento fijo (13%), lo que implica que el piso o base del aporte obrero no podría disminuirse al porcentaje menor del once por ciento. Si bien se elimina el extremo superior, el porcentaje fijo eliminó la disminución a favor del empleado judicial, quien históricamente viene aportando una suma importante al fondo.

De este modo, al contrario del criterio de la mayoría de la Sala, que se sustenta de forma importante en la doctrina de la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, antecedente en el cual los suscritos suscribimos un voto salvado junto al magistrado Cruz Castro, consideramos que la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, contiene el vicio sustancial del procedimiento legislativo, por la violación a la norma constitucional que impone la consulta constitucional, con base en los argumentos que se exponen a continuación.

A.- Texto de la ley no consultado a la Corte Suprema de Justicia.

A la base de la discusión, tal y como bien se afirma en el voto de mayoría, está la determinación de si, al tenor de lo dispuesto en el artículo 167, de la Constitución Política, el órgano legislativo estaba o no en la obligación de consultar el citado proyecto de ley al Poder Judicial, deber que, por lo demás, ha sido incorporado en los artículos 126 y 157, del Reglamento de la Asamblea Legislativa, en los cuales se estipula el procedimiento que ha de observarse al efecto. Del texto constitucional se colige, que la consulta obligatoria a la Corte Suprema de Justicia sólo es tal si el proyecto de ley se refiere a la organización o funcionamiento del Poder Judicial. De modo, que el meollo del asunto está en lo que se ha de entender por “organización o funcionamiento del Poder Judicial”.

Al respecto, el voto de mayoría sostiene, que cuando la Carta Política Fundamental hace referencia a la organización y funcionamiento del Poder Judicial, se refiere -únicamente- a la afectación de la función jurisdiccional, y no de la propiamente administrativa. En abono de esta posición, se citan las Sentencias N° 1998-5958 de las 14:54 del 19 de agosto de 1998, N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 y N° 2008-5179 de las 11:00 horas del 4 de abril de 2008. Asimismo, en relación con el tema concreto del Fondo de Pensiones y Jubilaciones del Poder Judicial y la obligación de la Asamblea Legislativa de consultar a la Corte Suprema de Justicia los proyectos de ley que versan sobre aquel, el voto de mayoría cita las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, con base en las cuales concluye, que en esos casos, la Asamblea Legislativa no está obligada a consultar el proyecto de ley a la Corte Suprema de Justicia, en los términos dispuestos en el artículo 167, Constitucional. Sin embargo, a criterio de los suscritos, tal interpretación del numeral constitucional, restringida únicamente a la función jurisdiccional, no se deriva ni del texto de la Carta Fundamental, ni de la jurisprudencia de esta Sala. En efecto, en cuanto a los precedentes de cita, es de destacar, que con respecto a las tres primeras sentencias, de ellas no se infiere lo que, en su voto, sostiene la mayoría. Así, en la Sentencia N° 1998-5958 de las 14:54 del 19 de agosto de 1998, lo que se desarrolla es solo el término “funcionamiento” -del binomio “organización o funcionamiento”- del Poder Judicial, sin referirse al tema de la organización de ese Poder de la República. En concreto, en la cita que se hace de ese voto, la Sala claramente indica que “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados”, con lo cual se hace evidente, que el tema de la organización -que es el que aquí interesa- no fue desarrollado en dicha resolución, simplemente, porque el caso no lo requería, ya que se trató de la consulta legislativa preceptiva de constitucionalidad sobre el proyecto de “Adición de un nuevo Capítulo IV, denominado “Del recurso de hábeas data”, al Título III de la Ley de la Jurisdicción Constitucional, ley Nº 7185 del 19 de octubre de 1989”, que se tramitó en el expediente legislativo número 12.827, donde el tema en discusión era que la reforma afectaba la función jurisdiccional del Poder Judicial. Que esto es así, se desprende del propio texto de la sentencia que no se cita con la debida amplitud en el voto de mayoría: “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados. Y, en Costa Rica, la jurisdicción constitucional es indudablemente judicial, desde que tanto la Constitución Política como la Ley de la Jurisdicción Constitucional integran a esta Sala dentro de la estructura de la Corte”. Hecha la cita en su contexto, no se puede inferir, que la Sala haya restringido el binomio “organización o funcionamiento” meramente a lo jurisdiccional, sino que, en el caso de cita, este Tribunal Constitucional únicamente se refirió al aspecto de la función jurisdiccional del Poder Judicial, porque era el tema en discusión, sin hacer exclusión, ni referirse al tópico de la organización administrativa de dicho Poder de la República. Lo mismo cabe decir en relación con la Sentencia N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 a la que alude la mayoría. Se trata de una consulta legislativa facultativa de constitucionalidad respecto del proyecto de ley de “Modificación del Código Penal, Ley número 4573 y sus reformas”, expediente legislativo número 14.158. Nuevamente, se trató de una reforma que afectaba directamente la función jurisdiccional del Poder Judicial, no su organización administrativa. De allí que, en este caso, tampoco la Sala desarrolló este último tema, por resultar ocioso. Es por ello, que la discusión de fondo se centró y agotó en los aspectos de la función jurisdiccional del Poder Judicial: “…dicha consulta [la del artículo 167, de la Constitución Política] resulta obligatoria cuando lo discutido en la Asamblea es un proyecto de ley que pretenda establecer reglas de funcionamiento y organización del Poder Judicial, entendido esto no apenas como las disposiciones que regulen la creación de tribunales de justicia o competencias jurisdiccionales, sino incluso aquellas que dispongan sobre modo de ejercicio de dichas competencias, es decir, sobre la forma en que el Poder Judicial lleva a cabo su función jurisdiccional, incluidas normas propiamente procesales”. Ciertamente, es evidente que lo expresado se limitó a examinar lo relativo al ejercicio de las competencias jurisdiccionales de los Tribunales de Justicia, toda vez que era sobre ese aspecto en particular que versó esa consulta. Pero, la Sala no dijo que este sea el único extremo en que la consulta del numeral 167, de la Constitución Política, sea obligatoria, sino que lo que dijo es que, en ese caso, es obligatoria, sin referirse a otros casos en que también lo sea, como lo es lo referente a la organización y competencias administrativas del Poder Judicial.

Comentario separado merece la Sentencia N° 2008-5179 de las 11:00 horas del 4 de abril de 2008, puesto que aquí, a diferencia de la lectura que hace la mayoría, sí se establece que lo relativo a la organización administrativa del Poder Judicial cae dentro de la consulta obligatoria que estipula el citado artículo 167, Constitucional. En esa ocasión, este Tribunal Constitucional, como intérprete máximo de la Constitución Política, al referirse a los términos de “organización o funcionamiento” del Poder Judicial, contenidos en el artículo 167, de la Carta Política, como condición de la consulta obligatoria a ese Poder de la República por parte de la Asamblea Legislativa, consideró “…que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas…”. No se trata de un cambio de criterio de este Tribunal en la materia, sino, dentro de la línea jurisprudencial ya trazada, de una mayor determinación de los términos “organización o funcionamiento” que emplea el artículo 167, de la Constitución Política, para establecer los casos en los cuales los proyectos de ley que estén en la corriente legislativa deben ser consultados -obligatoriamente- a la Corte Suprema de Justicia. Esta sentencia no amplió, en modo alguno, los supuestos de consulta obligatoria; por el contrario, lo que hizo fue definirlos de una manera más amplia y precisa. Por ello, allí claramente se determinó, que en esos casos, pero solo en estos, la consulta es obligatoria. Así se entiende que, en esa misma sentencia, se expresara: “[c]abe apuntar que tal exégesis se impone en aras de mantener el equilibrio de poderes, sin privilegiar a uno u otro órgano constitucional, de manera que cada uno pueda ejercer sus funciones de manera independiente y separada como lo impone el propio texto constitucional (artículo 9° de la Constitución). En otros términos, la precisión de tales conceptos evita cualquier colisión, extralimitación o exacerbación de las respectivas funciones, en aras de mantener el equilibrio y la contención de los poderes, por cuanto, el fin de la norma lo constituye no sólo la independencia funcional y la autonomía presupuestaria del Poder Judicial, sino, también, el equilibrio entre el Poder Legislativo y Judicial. En efecto, una interpretación amplia de los términos empleados por el constituyente originario, por parte de la Corte Plena, podría conducir a que determinadas materias que, en sentido estricto no están referidas a la organización y funcionamiento del Poder Judicial, ameriten, injustificadamente, de una ley reforzada, con lo cual se ralentiza o entorpece, innecesariamente, la función legislativa. De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equívocamente, que el proyecto no versa sobre organización y funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial”. De lo anterior se colige, que todo lo relativo a la materia de organización y funcionamiento del Poder Judicial, pero solo y estrictamente esto -para guardar el equilibrio entre independencia funcional y autonomía presupuestaria del Poder Judicial, por un lado, y la libertad de configuración del legislador ordinario, por otro-, es lo que obliga al órgano legislativo a realizar la consulta ante la Corte Suprema de Justicia, sin que se pueda extender a otras materias. En este sentido, no hay la menor duda, de que la Sala Constitucional ha entendido que lo relativo a la organización administrativa del Poder Judicial, y no sólo lo concerniente a la afectación, directa o indirecta, de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167, de la Constitución Política. Y no podría ser de otra manera, ya que la afectación o modificación de la organización administrativa del Poder Judicial en general -y no solo lo atinente a los órganos jurisdiccionales o judiciales en sentido estricto- también repercute en el servicio de Administración de Justicia que presta, y en la independencia que constitucionalmente se garantiza a ese Poder y a los jueces como funcionarios llamados a impartir justicia.

Por otra parte, las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, que se citan en el voto de mayoría como fundamento para concluir que los proyectos de ley relativos al tema específico del Fondo de Pensiones y Jubilaciones del Poder Judicial no necesitan ser consultados a la Corte Suprema de Justicia, tampoco tienen la virtud de dar el fundamento que, en relación con esta materia, afirma que tienen la mayoría de la Sala.

En la primera de dichas sentencias, la Sala conoció unas acciones de inconstitucionalidad acumuladas planteadas contra la Ley Marco de Pensiones, Ley N° 7302 de 8 de julio de 1992. Este Tribunal, en aquella ocasión, lo único que afirmó es que, en el caso de la Ley Marco de Pensiones, no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley respectivo, por la sencilla razón, de que dicho proyecto no afecta a los servidores judiciales; y, por lo tanto, no cae dentro de lo preceptuado por el artículo 167, de la Constitución Política. Asimismo, en el voto de cita, se indica que el funcionamiento está referido a la función jurisdiccional, pero no hace alusión alguna al tema de la organización del Poder Judicial, que es de lo que aquí se trata.

De igual modo, en la Sentencia N° 2002-4258 de las 9:40 del 10 de mayo de 2002, la Sala conoció de acciones de inconstitucionalidad acumuladas interpuestas contra el artículo 4, de la Ley N° 7605, de 2 de mayo de 1996, en cuanto reforma los artículos 224, 226 y 236, incisos 1) y 2), de la Ley Orgánica del Poder Judicial, N° 7333 de 5 de mayo de 1993, así como, por conexidad y consecuencia, contra el artículo 33, inciso a), del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. La Sala descartó, entre otros temas alegados, la violación al artículo 167, de la Constitución Política, por el hecho de que la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho al respecto en la Sentencia N° 1995-3063 de las 15:30 del 13 de junio de 1995, que, como ya se dijo, solo se refirió al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. De modo tal, que, a diferencia del criterio externado por la mayoría, dichas sentencias no excluyen la materia relativa al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, sino solo en el tanto y en el cuanto el respectivo proyecto de ley no tenga relación directa con la “organización o funcionamiento del Poder Judicial”, temas que, ciertamente, no estaban involucrados en las acciones que se plantearon ante esta Sala y que fueron resueltas en las sentencias de cita. Con ello, no se excluye la materia concerniente al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, como lo entiende la mayoría, ya que este tema, en sí mismo considerado, no está excluido de dicha consulta, sino que ello dependerá de si el proyecto de ley en cuestión contiene o no regulaciones relativas a la organización o el funcionamiento de ese Poder, aspecto que habrá que determinar de previo en cada caso para así establecer la obligatoriedad o no de dicha consulta.

En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establecida en el artículo 9, y reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar, en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167, Constitucional. En este sentido, a criterio de los suscritos, es un grave error conceptual confundir o asimilar la función jurisdiccional en sentido amplio, con inclusión de la función auxiliar a la jurisdiccional, con la función estrictamente administrativa. La función jurisdiccional es una función especial y diferente a la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Una cosa es la Administración de Justicia y otra muy distinta la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa. Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la independencia, en su doble vertiente, tanto de Poder Judicial en sí mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. Basta para comprender la delicada tarea que realizan los jueces de la República, con la colaboración de los funcionarios que los asisten y los auxilian en sus funciones y sin los cuales aquellos no podrían ejercer debidamente su función, con tener presente que ellos deciden los casos sometidos a su conocimiento con fuerza de cosa juzgada; es decir, deciden cuál es la verdad con fuerza de autoridad de ley en cada caso, sin que su decisión, una vez alcanzada esa condición, pueda ser, en principio, revisada. Esto implica una función sumamente delicada y una gran responsabilidad, la cual no podría llevarse a cabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no puede haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De allí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios.

Existe consenso en la doctrina administrativa, en que la función jurisdiccional es, si no la más compleja, una de las más complejas y difíciles de llevar a cabo en el Estado Constitucional de Derecho en las sociedades modernas. Esto por cuanto, a diferencia de lo que se decida en los Poderes Legislativo y Ejecutivo, las decisiones del Poder Judicial, en ejercicio de la función jurisdiccional, son inapelables; es decir, tiene fuerza o autoridad de cosa juzgada. Esto no solo implica una gran responsabilidad, sino la necesidad de contar con una serie de principios y garantías que permitan el adecuado ejercicio de esa función. En este contexto, la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de esa delicada función. Corresponde al juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Pero esta independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función. Por ello, en materia de remuneración y jubilación, no puede equipararse con el sector administrativo. La necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica, en torno al tema de la acción, que la jubilación o pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo. Lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad; y, por ende, en la paz social. En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho; es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia. La independencia judicial es una garantía institucional establecida a nivel constitucional, sea, en el rango más elevado de la jerarquía de las normas, al punto que también se encuentra estipulada como un Derecho Humano. En efecto, la Convención Americana de Derechos Humanos ha establecido, como derecho humano, el ser oído por un juez imparcial. Al respecto, en el artículo 8.1, se establece:

“Artículo 8. Garantías Judiciales.

1. Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral, fiscal o de cualquier otro carácter”.

La independencia judicial constituye un principio fundamental dentro del Estado Constitucional de Derecho. Pero esa independencia, para ser real, no solo debe ser organizativa y funcional, sino también económica. Esa independencia económica está también garantizada en el artículo 177, de la Constitución Política, al establecer que el proyecto de presupuesto ordinario deberá asignar al Poder Judicial al menos un 6% de los ingresos ordinarios calculados para el año económico. La intención del Constituyente originario, con la promulgación de esta norma -que establece un egreso constitucional atado-, es garantizar, entre otras cosas, que los jueces y el resto del personal auxiliar de la justicia, tuvieran una retribución adecuada a la complejidad y dificultad de la función jurisdiccional, lo que implica, una jubilación o pensión adecuada también a ello y a las prohibiciones especiales que dicha función implica para los servidores judiciales, las cuales no pesan sobre los servidores públicos de los otros Poderes del Estado. La norma constitucional previene que la asignación presupuestaria pueda convertirse en un instrumento de intervención política en la función jurisdiccional. Pero esto debe verse en toda su amplitud, ya que los salarios de los juzgadores y del personal auxiliar, así como el régimen de pensiones y jubilaciones que les es aplicable, tiene que guardar estricta relación con la labor que realizan, so pena de tornar nugatorio el principio de independencia judicial. De allí, que la independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Así las cosas, una forma de garantizar la independencia del Poder Judicial, de los Jueces de la República y de los auxiliares de justicia, es con una jubilación o pensión digna, acorde con sus funciones constitucionales.

En la exposición de motivos que dio lugar a la promulgación de la Ley de Jubilaciones y Pensiones Judiciales, como adición a la Ley Orgánica del Poder Judicial, el diputado Teodoro Picado Michalski, en fecha 2 de junio de 1938, expresó:

“Es el Poder Judicial uno de los tres principales sostenes en que descansa el Gobierno de la República; y es a sus servidores, a los que por ejercer muy delicadas funciones para la vida misma de la Sociedad, se exige, más que a otros empleados, mayor ilustración, probidad y trabajo. Y es por eso, seguramente, que al pedirse a los servidores judiciales una completa dedicación, durante largos años, a la importantísima tarea de administrar justicia, -con el noble fin de asegurarles su subsistencia al llegar a la vejez o cuando por padecimientos físicos ya no puedan trabajar,- que se ha venido instando ante el Congreso, en distintos períodos legislativos, la promulgación de una ley que contemple esa difícil situación de los funcionarios y empleados del Poder Judicial”.

No se debe soslayar, que las personas juzgadoras y el funcionariado judicial en general, está sometido a un régimen de prohibiciones y de incompatibilidades de mucha mayor intensidad y rigurosidad que el régimen de incompatibilidades y prohibiciones que afecta al resto de los funcionarios públicos, lo que lo hace de una naturaleza completamente distinta. Las regulaciones que se aplican al funcionariado administrativo de todo el sector público no pueden aplicarse también a los funcionarios judiciales. En este sentido, los principios de razonabilidad y proporcionalidad constitucional obligan a que ese régimen de incompatibilidades y prohibiciones asimétrico, que responde a la propia naturaleza de las funciones jurisdiccional y administrativa, deba tener una compensación económica, tanto salarial como al término de la relación laboral. Pero también el principio de igualdad, recogido en el artículo 33, de la Constitución Política, implica la prohibición de tratar como iguales a los desiguales, porque de ello se deriva una discriminación contraria al Derecho de la Constitución. En el caso de los jueces y funcionarios judiciales, existen condiciones objetivas, razonables, justificadas y fundadas en la propia naturaleza de la función jurisdiccional que se ejerce, para darles un trato diferente al del resto de los servidores públicos de las distintas administraciones, con lo cual, lejos de incurrirse en una discriminación, se tutela el principio de igualdad regulado en el citado numeral constitucional. Lo cual quiere decir, que si existe un régimen jubilatorio diferenciado para el sector jurisdiccional, ello no obedece a una decisión arbitraria, subjetiva o antojadiza del legislador, sino a la propia naturaleza específica y diferente de la función jurisdiccional que, objetiva y constitucionalmente, lo justifican.

Lo anterior no solo se deriva de nuestra propia Constitución Política y de los valores y principios que la informan, sino que está contenido en diversos instrumentos internacionales. Así, por ejemplo, en los “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11, se dice lo siguiente:

“11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas”.

Con lo cual, las Naciones Unidas recomienda a todos los países del mundo, que las normas jurídicas deben garantizar a los jueces una remuneración, pensiones, condición de servicios y de jubilación adecuadas y proporcionadas a la complejidad y dificultad de la función jurisdiccional que ejercen. Ello debe entenderse, también, extensivo a los funcionarios auxiliares de la justicia, pues, de otro modo, tal independencia sería imposible.

De igual modo, en la “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, en aras de lograr una independencia real y efectiva del Poder Judicial y de los funcionarios que administran justicia, así como de sus colaboradores y auxiliares, en los párrafos 6.1 y 6.4, se establece lo siguiente:

“6.1 El ejercicio profesional de las funciones judiciales da derecho a la remuneración del / de la juez, cuyo nivel será determinado con el fin de preservarle de las presiones destinadas a influir en sus resoluciones y en general en su actuación jurisdiccional, alterando de ese modo su independencia e imparcialidad.

6.4 En particular, el estatuto asegurará al / a la juez que haya alcanzado la edad legal de cese en sus funciones, después de desarrollarlas a título profesional durante un período determinado, el pago de una pensión de jubilación cuyo importe se aproximará en lo posible al de su última retribución de actividad judicial”.

El citado instrumento pretende lograr un Poder Judicial real y efectivamente independiente, lo que es una garantía a favor de la ciudadanía. De modo tal, que la adecuada remuneración y pensión de los jueces y de los auxiliares de justicia, en los términos allí expresados, constituye la debida y razonable consecuencia del ejercicio de una función delicada y de mucha dificultad y responsabilidad.

También, el “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32, se hace eco de los mismos principios ya citados, al estatuir:

“Art. 32. Remuneración.

Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”.

Y, en el artículo 33, dispone:

“Art. 33. Seguridad Social.

El Estado debe ofrecer a los jueces su acceso a un sistema de seguridad social, garantizando que recibirán, al concluir sus años de servicio por jubilación, enfermedad u otras contingencias legalmente previstas o en caso de daños personales, familiares o patrimoniales derivados del ejercicio del cargo, una pensión digna o una indemnización adecuada”.

Debe tenerse presente, que la jubilación y la pensión forman parte de los Derechos Económicos, Sociales y Prestacionales contenidos en el Pacto Internacional de Derechos Económicos, Sociales y Culturales, adoptado y abierto a la firma, ratificación y adhesión por la Asamblea General de las Naciones Unidad, en su resolución 2200 A (XXI), de 16 de diciembre de 1966. Estas regulaciones también han sido acogidas en el Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces, dicho Consejo recomendó:

“…es generalmente importante (y especialmente en el caso de las nuevas democracias) fijar disposiciones legales específicas que garanticen unos salarios de jueces protegidos contra reducciones y que aseguren de facto “el aumento de los salarios en función del coste de vida”.

Estas recomendaciones son de total aplicación al tema de las pensiones y jubilaciones de los jueces y de los servidores judiciales en general, ya que están íntimamente relacionadas con el principio de independencia del Poder Judicial, tal y como ya ha quedado expuesto.

Pero no solo en el ámbito internacional se ha regulado esta materia en los términos dichos, sino que también ha sido objeto de regulación a lo interno del Poder Judicial, con consideraciones semejantes a las dichas.

En efecto, la Corte Plena aprobó el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces, en sus diferentes facetas. En el artículo 24, relativo a las condiciones materiales de la independencia judicial, se establece que el Estado debe garantizar “la independencia económica del Poder Judicial, mediante la asignación del presupuesto adecuado para cubrir sus necesidades y a través del desembolso oportuno de las partidas presupuestarias”, lo cual está íntimamente relacionado con lo dispuesto en el ya citado artículo 177, de la Constitución Política, en cuanto a la asignación constitucional de un mínimo del Presupuesto Ordinario para el Poder Judicial, como manifestación de esa independencia.

Asimismo, el artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez: “Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”. Como ya se explicó, esta especial regulación tiene su fundamento en la independencia del Poder Judicial, lo cual debe ser también extendido al tema de la pensión o jubilación de los jueces y del personal auxiliar de la justicia, pues de otro modo, el principio de independencia judicial no sería posible.

El respeto a la independencia judicial, que es uno de los fines que persigue el artículo 167, Constitucional, también fue objeto de regulación expresa en el Estatuto, artículo 20, al disponer que “[l]os otros Poderes del Estado y, en general, todas las autoridades, instituciones y organismos nacionales o internacionales, deben respetar y hacer efectiva la independencia de la judicatura”. Y, precisamente, la intromisión inconsulta del órgano legislativo en la organización y funcionamiento del Poder Judicial, sea creando, modificando o suprimiendo órganos o competencias, judiciales o administrativos, es constitucionalmente inadmisible, por constituir esto una flagrante violación al principio de independencia judicial.

Por último, cabe indicar, que la independencia del Poder Judicial es un principio que tiene una naturaleza particular y específica, distinta al de los otros Poderes del Estado, ya que consiste en un escudo de protección contra la intromisión del poder político, de lo cual no están protegidos los otros Poderes del Estado. Esto, debido a que el Poder Judicial es el que administra justicia y esta debe ser imparcial y libre de cualquier presión externa. Y, en este punto, la presión económica, bien por el salario o estipendio, bien por el monto y condiciones de la jubilación o pensión de los jueces y demás auxiliares de la justicia, juega un papel trascendente en la consecución de una independencia real y efectiva del Poder Judicial.

Con base en las consideraciones precedentes, corresponde, entonces, examinar el contenido de la ley con el fin de determinar si este afecta o no la organización o el funcionamiento del Poder Judicial, en los términos expresados.

En este orden de ideas, al igual que cuando se conoció la consulta legislativa relacionada al proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, hoy aprobada por Ley N° 9544 de 24 de abril de 2018, denominada como “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas”, se mantienen las razones del voto salvado. Esa consulta legislativa fue evacuada por Sentencia N° 2018-005758 a las 15:40 horas del 12 de abril de 2018, en la que abordó las diferentes quejas sobre el artículo 239, de la ahora ley en cuestión. En esa oportunidad, se revisó el trámite legislativo en cuanto crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la cual define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le concede, órgano al que se le otorga independencia funcional y se le asigna una serie de competencias, entre otras, elevar el aporte obrero al Fondo de Pensiones y conocer de las solicitudes de jubilación, lo cual implica una modificación en la estructura del Poder Judicial. De igual modo, se restan competencias al Consejo Superior del Poder Judicial; y, además, en el artículo 240, del proyecto de ley, se confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Los mencionados numerales de la Ley disponen:

“Artículo 239- Se crea la Junta Administrativa del Fondo del Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (Conassif) y la Superintendencia de Pensiones (Supén).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley.

Artículo 240- La Junta Administradora estará conformada por tres miembros que serán electos democráticamente por el colectivo judicial, así como por tres miembros designados por la Corte Plena, con perspectiva de género en ambos casos. Cada integrante titular tendrá un suplente para que lo sustituyan en sus ausencias, quien deberá cumplir con los mismos requisitos del titular.

Quienes integran la Junta durarán en sus cargos cinco años, luego de los cuales podrán ser reelectos, todo conforme con la reglamentación que al efecto habrá de dictarse por la Corte Plena, previa audiencia conferida a las organizaciones gremiales del Poder Judicial.

En la primera sesión ordinaria, la Junta designará a la persona que habrá de presidir las sesiones, esta designación se hará por un espacio temporal de un año, debiendo alternarse cada año entre los representantes del colectivo judicial y de la Corte Plena. Además, se designará a quien le sustituya en caso de ausencia. La persona que preside tendrá voto calificado en caso de empate.

Los miembros de la Junta Administradora no devengarán ninguna dieta pero sí contarán con los permisos necesarios para atender las sesiones. Para ser miembro de la Junta se deberá cumplir con los siguientes requisitos, los cuales deberán ser documentados y demostrados ante la Superintendencia de Pensiones (Supén):

• a)Contar con título universitario en carreras afines a la administración de un fondo de pensiones y estar incorporado al colegio profesional respectivo, cuando así corresponda.
• b)Ser de reconocida y probada honorabilidad.
• c)Contar con conocimientos y al menos cinco años de experiencia en actividades profesionales o gerenciales relevantes para la administración de un fondo de pensiones, de manera que todos los miembros de este órgano posean habilidades, competencias y conocimientos que les permitan realizar el análisis de los riesgos que afectan a la Junta y al Fondo.

No podrán ser miembros de la Junta:

• 1)Las personas contra quienes en los últimos diez años haya recaído sentencia judicial penal condenatoria por la comisión de un delito doloso.
• 2)Las personas que en los últimos diez años hayan sido inhabilitadas para ejercer un cargo de administración o dirección en la Administración Pública o en las entidades supervisadas por la Superintendencia General de Entidades Financieras (Sugef), la Superintendencia General de Seguros (Sugese), la Superintendencia de Valores (Sugeval) y la Superintendencia de Pensiones (Supén).

La integración del órgano deberá garantizar la representación paritaria de ambos sexos, asegurando que la diferencia entre el total de hombres y mujeres no sea superior a uno”.

De la lectura del artículo 239, transcrito, es claro que en él se crea un nuevo órgano dentro de la estructura del Poder Judicial, denominado “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial”, al que se le confiere completa independencia funcional, técnica y administrativa, para ejercer las facultades, competencias y atribuciones que le otorga la ley, enumeradas en los incisos a), b), c), d), e), f), g), h) e i), del propio artículo, para el cumplimiento de sus cometidos, para lo cual contará con personalidad jurídica instrumental. De tal manera, que se crea, ex novo, un órgano administrativo y se adscribe dentro de la estructura del Poder Judicial, con competencias y atribuciones determinadas; y, concomitantemente, se sustraen y eliminan competencias y atribuciones previamente otorgadas -por ley formal- al Consejo Superior del Poder Judicial. Esta sola circunstancia, por las razones dichas, obliga al órgano legislativo a consultar -necesariamente- el proyecto al Poder Judicial, en los términos dispuestos en el artículo 167, de la Constitución Política, ya que ello modifica la organización administrativa del Poder Judicial, con la creación de un nuevo órgano administrativo, y la supresión de competencias del Consejo Superior en favor de ese órgano de nueva creación, lo que, claramente, afecta la independencia de ese Poder de la República.

Lo mismo cabe decir en relación con el artículo 240, de la ley, en el tanto en él se abordan temas propios de la organización administrativa del Poder Judicial, en torno a la conformación y designación de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, su duración en los cargos, la designación de la persona que ha de presidirla y los requisitos para poder ser miembro de esa Junta, entre otros. Es de destacar, que aun cuando la Corte Plena está facultada, por la Ley Orgánica del Poder Judicial, para dictar los reglamentos internos que sean necesarios para el buen funcionamiento del Poder Judicial, el hecho de que, por medio de la ley, se le imponga la obligación de reglamentar lo relativo a la duración en los cargos de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, sin que el texto sustitutivo del proyecto, que fue finalmente aprobado en Primer Debate, haya sido consultado a la Corte Suprema de Justicia, implica una grave intromisión en las competencias del órgano máxima jerarquía del Poder Judicial, con afectación de la organización de ese Poder de la República, en contravención de la consulta obligatoria preceptuada en el artículo 167, de la Constitución Política; y, por ende, una lesión a la independencia judicial. A simple vista, la citada normativa, le quita, al Presidente de la Corte Suprema de Justicia, y por consiguiente, al Presidente del Consejo Superior del Poder Judicial, la competencia que le da la Ley Orgánica del Poder Judicial, de administrar el Fondo de Pensiones y Jubilaciones del Poder Judicial, precisamente de acuerdo con las políticas de inversión establecidas por la Corte Plena, tal y como actualmente está contemplado en el artículo 81, inciso 12.

No obstante lo anterior, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, no fue consultado a la Corte Suprema de Justicia, a pesar de contener una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial. Sin embargo, tal y como se afirma en el voto de mayoría, a folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017, por la Comisión Especial, por oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, con base en lo cual, la Corte Suprema de Justicia emitió su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según consta a folios 2759 a 2807 del expediente legislativo. Esto significa, entonces, que el Poder Judicial sí fue consultado y externó su criterio en relación con el texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, lo que se produjo incluso antes de que dicho texto fuera conocido por el Plenario.

A pesar de ello, dicho texto no fue el que se aprobó en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance N° 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, ya que el que se aprobó es un texto sustitutivo introducido por moción vía artículo 137, del Reglamento de la Asamblea Legislativa. Este último texto no fue consultado a la Corte Suprema de Justicia, tal y como correspondía, según lo analizado supra, al tenor de lo dispuesto en el artículo 167, de la Constitución Política.

Conforme lo argumentan los accionantes, se incurrió en una violación constitucional en el procedimiento legislativo. Al respecto, cabe destacar, que este Tribunal Constitucional tiene competencia para conocer y pronunciarse sobre los vicios en la formación de las leyes cuando se quebrante algún requisito o trámite sustancial previsto en la Constitución o en el Reglamento de la Asamblea Legislativa. Esto es conforme al artículo 73, inciso c), de la Ley de la Jurisdicción Constitucional, que indica:

“Artículo 73.- Cabrá la acción de inconstitucionalidad:

…

• c)Cuando en la formación de las leyes o acuerdos legislativos se viole algún requisito o trámite sustancial previsto en la Constitución o, en su caso, establecido en el Reglamento […] de la Asamblea Legislativa.

…”.

De manera que, conforme a la Ley de la Jurisdicción Constitucional si lo que se analiza es una ley formal aprobada por la Asamblea Legislativa, se trataría del control posterior de las leyes o acuerdos legislativos, mediante el examen del expediente legislativo, para determinar que en el procedimiento de formación de la ley no se incurrió en algún vicio esencial. Por ello, el vicio detectado en el procedimiento legislativo de la Ley N° 9544, denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, debe declararse por la omisión de consultar a la Corte Suprema de Justicia el texto sustitutivo aprobado en Primer Debate, toda vez que esto viola lo dispuesto en el artículo 167, de la Constitución Política, al afectar la organización administrativa del Poder Judicial, por la creación de un nuevo órgano administrativo dentro de su estructura, otorgarle competencias sustanciales en materia de pensiones y jubilaciones; y, a la vez, suprimir competencias otorgadas previamente por ley al Consejo Superior del Poder Judicial (artículos 239 y 240 del proyecto).

Esta Sala, en abono de lo anterior, en la Sentencia N° 2001-13273, de las 11:44 horas del 21 de diciembre de 2001, al evacuar una consulta legislativa de constitucionalidad sobre un proyecto de ley de reforma al Código Penal, en cuanto modifica aspectos relativos a la organización o funcionamiento -meramente administrativa- del Archivo Judicial, sostuvo, por unanimidad, que:

“De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial. A pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia (al menos la misma no consta en la copia certificada del expediente remitida por el Presidente del Directorio), sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que estima la Sala que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia funcional reconocida por el constituyente al Poder Judicial, y en ese sentido debe entenderse que el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado”.

Nótese por lo dicho, que el vicio apuntado no quedó subsanado, en segundo debate, aún si la Ley hubiera sido aprobado por mayoría calificada, pues esto solo sería así si se tratase de la aprobación de un texto de obligada consulta al Poder Judicial, por afectar su organización, estructura y funcionamiento -como en este caso-, y, una vez consultado a la Corte Suprema de Justicia, el órgano legislativo persistiera en aprobarlo apartándose del criterio técnico del órgano judicial. Nada de esto ocurrió en el procedimiento legislativo, toda vez que la Ley N° 9544 del 24 de abril de 2018, no obtuvo siquiera la votación calificada en el segundo debate, y peor aún, el texto aprobado fue sin consulta institucional. El meollo del problema que nos ocupa, realmente, es de la aprobación -en Primer Debate- de un texto inconsulto, en contravención de lo preceptuado en el artículo 167, de la Constitución Política, vicio de procedimiento que resulta insalvable e insubsanable. Esto por cuanto, si bien es cierto, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, fue consultado a la Corte Suprema de Justicia, este texto no fue el que, finalmente, se aprobó en Primer Debate, sino un nuevo texto sustitutivo que, de previo, no fue consultado, no obstante tener relación directa con la organización, estructura y funcionamiento del Poder Judicial, según ha quedado expuesto. Y aún más, si bien el anterior texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 sí fue consultado a la Corte, al haber esta mostrado disconformidad con el texto, hacía obligada una votación calificada por el Pleno, al tenor del artículo 167, de la Carta Fundamental, lo que tampoco se hizo así.

Conviene recordar, que la consulta institucional tiene como fin la protección de la independencia judicial, que es mucho más complejo que reducirlo a la protección de un fuero jurisdiccional. La consulta institucional obligatoria debe ser oportuna, pues de otro modo, sería una obligación de papel que no surtiría las verdaderas salvaguardias que el texto constitucional procura establecer entre iguales Poderes de la República. El sostenimiento de una tesitura contraria, y de modo permanente, por parte de la mayoría del Tribunal no podrá ser sostenible en el tiempo, pues aún en estas circunstancias de inflexión e implosión en la independencia funcional y presupuestaria del Poder Judicial, lo es mayoritariamente, al de las garantías ciudadanas que el Constituyente quiso garantizar en el 167, y luego, mejoró con la reforma al numeral 177, de la Constitución Política.

La Corte Plena, en Sesión N° 27, del 7 de agosto de 2017, Artículo XXX, al evacuar la consulta a la Asamblea Legislativa sobre el Dictamen Afirmativo de Mayoría, aprobado por la citada Comisión Especial, dispuso:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aun y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundaría en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Tomando en cuenta las observaciones planteadas al Proyecto de Ley tramitado bajo el expediente 19922 (20035), las cuales encuentran apego y sustento en el estudio actuarial realizado por el IICE y con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la mayoría calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 08 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalar la incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Corolario, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial”.

La parte final, del citado artículo constitucional (167), expresa literalmente que “para apartarse del criterio de ésta [La Corte], se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea Legislativa”; y, dicho texto final, -no consultado en todo caso- se aprobó por la Asamblea Legislativa el 30 de octubre de 2017, con treinta y un votos (folios 4000 y 4173 del expediente legislativo). Y, para el segundo debate, no obtuvo la mayoría calificada, al alcanzar treinta y cuatro votos (folios 4437, 4608 y 4637 del expediente legislativo).

B.- Las dinámicas jurídicas y sociales que informaron la reforma al artículo 177, Constitucional. Es necesario abordar el criterio de la mayoría, el cual, consideramos con respeto -pero con igual vehemencia-, las razones por las que se considera que utilizan una laxa interpretación de la obligación de la consulta institucional establecida en el artículo 167, Constitucional, además de lo dicho anteriormente. Es claro que, en general, la doctrina constitucional de base para la consulta institucional se basa en similares razones: garantizar que el legislador tenga de primera mano la mejor información para legislar, es decir, cuente con el criterio técnico especifico. Se trata del reconocimiento del Constituyente de las autonomías institucionales, así como en su mayor grado, de la defensa de la independencia que le corresponde a un Poder del Estado u órgano constitucional fundamental del Estado. En los trámites de leyes complejos, como serían aquellas que tuvieran criterio encontrado del Poder Judicial, es cuando más se requiere que una mayoría calificada de los legisladores para promover aquellos cambios significativos en la legislación mediante un verdadero consenso.

Si bien esta Sala, en algunas de sus sentencias, ha establecido que no procede la consulta institucional en proyectos de ley que tienen un carácter nacional o general, este solo criterio jurisprudencial no puede bastarse para descartar la necesidad de agravar el procedimiento legislativo en la Asamblea Legislativa, cuando se trata de la mayoría calificada establecida en el numeral 167, Constitucional. Esto tiene que ser dimensionado no solo referidos a temas que tienen relación con la autonomía institucional del Poder Judicial, sino especialmente, a los referidos a la incidencia directa o indirecta en la independencia judicial, que se garantiza en la Constitución, a través de la estructura orgánica fundamental del Estado. Esto, especialmente, si como en el caso que nos ocupa, ha habido diversos vicios en el procedimiento legislativo, referidos más adelante.

Es claro, que criterios para negar la consulta institucional por considerar que un proyecto de ley sea de carácter nacional o general no puede ser utilizado de forma indiscriminada, especialmente porque con dicha calificación entraría gran cantidad de proyectos de ley que tengan incidencia en el presupuesto nacional, en esta situación una gran mayoría tendrían incidencia nacional que se ocupa para establecer la defensa de objetivos públicos vistos desde criterios economicistas. Al contrario, esta minoría estima que no aplica el criterio jurisprudencial citado por la mayoría, cuando se trata de proyectos de ley que podrían incidir en la organización del Poder Judicial, como órgano fundamental del Estado. Es claro que el escrutinio judicial debe ser más demandante, por los alcances más permanentes sobre la función judicial (que es universal y con plena jurisdicción sobre todas las controversias jurídicas), lo que expresa las funciones fundamentales de control, tanto y más que de las instituciones semi-autónomas y autónomas, porque tiene relación con la especialidad funcional e independencia de un poder de la República. El peso absoluto de la institucionalidad fundamental del Estado debe trazar los criterios del examen y escrutinio que debe hacer este Tribunal Constitucional, de modo que no se puede examinar en los mismos términos que se hace para otras instituciones autónomas, pues evidentemente las consecuencias son muy diferentes para el Estado y la población en general. Basta con señalar la Sentencia N° 2017-009551 de las 11:40 horas del 12 de junio de 2017, que estableció que:

“…en general, la función judicial es universal y tiene plena jurisdicción sobre todas las controversias jurídicas que se suscitan en el país. Universalidad se refiere a la competencia sobre todas las disputas que se sometan a los Tribunales de Justicia, y aun las que no figuran en ella o en la ley por el principio de plenitud hermenéutica (artículo 153 de la Constitución Política). Universalidad supone jurisdicción sobre todos los individuos en controversia, incluso de conformidad con los principios generales del Derecho Internacional Público y del Derecho Internacional Privado. El Poder Judicial tiene competencia para decidir definitivamente sobre todas las controversias, encausando las cuestiones de conformidad con el procedimiento respectivo del iter procesal, finalizando, por lo general, con una sentencia -forma normal de terminar el proceso- con el estado de cosa juzgada, que es una expresión del poder y función de la plena jurisdicción, universal, y que implica la prohibición de abrir de nuevo a la discusión la misma controversia, para evitar la perpetuación de los conflictos y su amenaza sobre la convivencia pacífica en sociedad. Es la lápida que prohíbe abrir de nuevo la discusión sobre los mismos hechos”.

El Constituyente por supuesto asignó un campo concreto de acción al Poder Judicial para que funciones con independencia, que se nutre y participa de todo el pensamiento occidental, inspirado en los principios de la imparcialidad y la justicia, sencillamente no se puede comparar, o asimilar a la de los entes menores del Estado, por el contrario, es claro que el artículo 167, de la Constitución Política, se ubica en consideración a la importancia institucional y su autonomía funcional en el gran esquema del Estado.

Anteriormente en esta misma sentencia, se estableció también que:

“Esto lleva al principio de legalidad funcional, que conlleva el ejercicio de las competencias constitucional del Estado, el logro de los objetivos torales de cada poder sin extenderse a los de los otros Poderes independientes y de igual rango, y al ejercer cada uno las funciones de peso y contrapeso es que pueden controlar y limitar a los otros Poderes, según lo autoriza la Constitución Política. De conformidad con la distribución de las funciones fundamentales del Estado, cuando el Legislativo dicta las leyes, está sujeto a la supremacía de la Constitución Política y a los límites consagrados por la Constitución Política, que condiciona definitivamente su regularidad y permanencia en el tiempo, además de no poder aplicarlas directamente; en cuanto al Poder Ejecutivo, no podría dejar de aplicar e implementar las disposiciones que le dicta el Poder Legislativo, ni dejar de observar las disposiciones de la Carta fundamental; finalmente, el Poder Judicial no podría resolver a contra-pelo de las normas aplicables a un caso concreto, salvo por el conflicto con el principio de jerarquía normativa, el principio de la supremacía de las normas, de las leyes, tratados y de la Constitución Política, quedando sujeto a éstas. De conformidad con los artículos 10 y 152 y siguientes de la Constitución Política debe velar por la regularidad de toda la legislación, por lo que no podría aplicar normativa inválida o inconstitucional, pues aunado a la función fundamental de impartir justicia, debe velar para que toda acción u omisión no vulnere los principios esenciales de todo Estado social y democrático de Derecho, entre ellos: los principios de legalidad, jerarquía normativa, el respeto de los derechos y libertades fundamentales de la población. En consecuencia, el Poder Judicial interpreta y aplica finalmente la Constitución Política, teniendo el control de constitucionalidad de las normas y omisiones -el monopolio del rechazo- cuando la legislación es contraria a ésta, así cuando vulneran los derechos fundamentales, porque naturalmente es el último garante del principio de legalidad, el defensor último de los fines y objetivos del Estado y de la realización, por el Derecho caso por caso, del bienestar del ser humano”.

Ahora bien, la sentencia aborda las generalidades del Fondo y su desarrollo legal a partir de los inicios del Siglo pasado, en sintonía con la Sentencia N° 2018-5758 de las 15:40 horas del 12 de abril de 2018, para explicar el desarrollo legal de la seguridad social y del régimen previsional del Poder Judicial. Sin embargo, se debió hacer referencia a que las falencias del sistema sirvieron de acicate también a nivel constitucional, pues hubo otras que se gestaron para garantizar mayor estabilidad institucional y a favor de la independencia judicial. De este modo, debe hacerse referencia a la materialización de una de las conquistas más importantes para la institucionalidad del país, la que se obtuvo con la reforma al artículo 177, Constitucional, con la que se garantizó la independencia económica del Poder Judicial. Cabe entonces plantear, que si las dinámicas institucionales y sociales de ese entonces fueron importantes, aún lo fueron más las de la enmienda a la Constitución Política, las que no son nada despreciables, pues estuvieron dirigidas a fortalecer el Poder Judicial, y con el mismo peso, producir protección dentro del funcionariado. Las dinámicas económicas y jurídicas dicen tanto o más, pues pese a las conquistas legales y por la cantidad de problemas que existían en la época previa a la reforma constitucional, se gestó desde el seno de la Corte Plena, y fue acogido por la Asamblea Legislativa, el mejoramiento sustancial de aquella independencia económica del Poder Judicial en la propia Constitución Política. No cabe duda que las protecciones que el Constituyente derivado estableció en la reforma, se distribuyen igualmente sobre la estabilidad del funcionariado judicial. Así, fueron contempladas las limitaciones en las instalaciones e infraestructura, dotar de mejores herramientas de trabajo, mejoramiento de los salarios, más recursos para el Régimen de Jubilaciones y Pensiones del Poder Judicial, entre otros. Los reclamos de los accionantes debieron encontrar eco en esta vía de la acción de inconstitucionalidad, las que al inicio de este voto salvado se enumeran algunas. La independencia judicial se defiende con las herramientas que precisamente dotó el Constituyente, dentro de la cual las democracias más consolidadas del mundo se dedican a producir los instrumentos de protección a la independencia judicial y económica, siendo una de ellas la votación calificada en caso de que un proyecto de ley incida en la organización y funcionamiento del Poder Judicial.

En la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, esta Sala estableció que:

“VI.- CARÁCTER EXCEPCIONAL DE LA FUNCIÓN MATERIALMENTE ADMINISTRATIVA DEL PODER JUDICIAL. Si bien al Poder Judicial le corresponde, por antonomasia, el ejercicio exclusivo de la función jurisdiccional –tal y como se señaló en el considerando anterior-, lo cierto es que, también, ejerce de forma excepcional o extraordinaria funciones de índole administrativo. En ese sentido, resulta menester apuntar que la función administrativa no está constitucional ni legalmente asignada de forma exclusiva a un órgano o ente y, tampoco, posee un contenido típico que la caracterice, puesto que, como bien ha apuntado la doctrina es más fácil describir a la administración pública que definir la función administrativa por su carácter heterogéneo. Resulta claro que el ejercicio de la función materialmente jurisdiccional, requiere y precisa de toda una infraestructura administrativa que permita ejercerla de consuno con el precepto constitucional, esto es, de forma pronta y cumplida. Esto es lo que se ha denominado el “servicio público de administración de justicia”. Así, el soporte o aparato administrativo auxiliar que le permite a los jueces y tribunales dictar sus resoluciones, conforman dicho servicio, con lo cual el concepto está referido a los perfiles administrativos de la función jurisdiccional, tales como la organización y funcionamiento de los tribunales, la logística, -avituallamiento y suministros-, el manejo, gestión o administración eficiente y eficaz de los despachos judiciales para evitar las dilaciones indebidas o injustificadas en la tramitación de la causa, la función administrativa ejercida por los órganos administrativos del Poder Judicial (v. gr. resoluciones administrativas de la Corte Plena, del Consejo Superior del Poder Judicial, del Tribunal de la Inspección Judicial, del Consejo de la Judicatura y, en general, de los diversos departamentos administrativos -Dirección Ejecutiva, Proveeduría, Personal, etc.-) y auxiliares adscritos a éste como la policía represiva ejercida a través del Organismo de Investigación Judicial, el ejercicio de la acción pública por el Ministerio Público y la provisión de una defensa gratuita por medio de la Defensa Pública. No obstante, si bien esa función materialmente administrativa es desplegada por el aparato u organización de apoyo o de soporte a la jurisdiccional, debe entenderse en un sentido estrictamente excepcional, es decir, resulta admisible aquella que sea, únicamente, necesaria e idónea para coadyuvar en el ejercicio de la función, materialmente, jurisdiccional y no otra. En razón de lo anterior, por aplicación del principio constitucional de la reserva o exclusividad de jurisdicción se impone que el Poder Judicial debe utilizar y destinar la mayoría de sus recursos al ejercicio de una función, materialmente, jurisdiccional.

VII.- AUTONOMÍA E INDEPENDENCIA ECONÓMICA DEL PODER JUDICIAL. Una de las grandes conquistas históricas del Estado Constitucional de Derecho costarricense, lo fue la autonomía económica del Poder Judicial lograda por vía de la reforma parcial a la Constitución Política del 7 de noviembre de 1949, mediante la Ley No. 2122 del 22 de mayo de 1957. Esta ley le adicionó a la versión original del artículo 177 de la Constitución Política un párrafo segundo, en el cual se dispuso lo siguiente:

“(…)

En el proyecto se le asignará al Poder Judicial una suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico. Sin embargo, cuando esta suma resultare superior a la requerida para cubrir las necesidades fundamentales presupuestadas por ese Poder, el departamento mencionado incluirá la diferencia como exceso, con un plan de inversión nacional, para que la Asamblea Legislativa determine lo que corresponda (…)”.

Esta reforma parcial a la Constitución fortaleció, de modo congruente con el ordinal 9° que proclama la separación de funciones, la independencia de ese Poder de la República. La enmienda constitucional partió de la propuesta formulada el 6 de septiembre de 1956 por el Magistrado de entonces Evelio Ramírez a la Corte Plena, órgano colegiado que la aprobó en la sesión celebrada ese mismo día. En la justificación de la modificación constitucional -que posteriormente pasaría a ser la exposición de motivos de la reforma en el procedimiento legislativo-, el Magistrado Evelio Ramírez, insistió en la necesidad de asignarle al Poder Judicial un mínimo o “suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico”, para superar la situación lamentable de ese Poder de la República al haber recibido en los siete años precedentes a 1956 tan solo un porcentaje promedio del 2.75% en relación con el Presupuesto General de Ingresos. El propósito manifiesto del Magistrado gestor de la reforma constitucional y de la Corte Plena al acoger su propuesta, fue contar con mayores recursos financieros para diversificar y fortalecer los distintos ordenes (sic) jurisdiccionales, incrementar el número de juzgados y tribunales y del personal necesario para atender la demanda del servicio, reformar y mejorar los procesos, dotar de una adecuada infraestructura y recursos materiales a los juzgados y tribunales, mejorar los salarios de quienes se dedican a la delicada y difícil tarea de administrar justicia y su régimen de jubilaciones o pensiones, todo en aras de procurar una justicia más pronta y cumplida. En ese sentido, el Magistrado Evelio Ramírez efectuó consideraciones tales como las siguientes:

“(…) la Corte Suprema de Justicia, conociendo mejor que nadie las verdaderas necesidades del Poder Judicial, elaboraría su propio anteproyecto de Presupuesto tomando en cuenta los factores que, a su juicio, exijan variaciones económicas dentro de un criterio honesto, racional y justo. Y no sólo atendería a la debida instalación de sus múltiples oficinas –que hoy ofrecen un aspecto casi ruinoso en toda la Nación-, sino que también les suministraría las máquinas de escribir, muebles adecuados y los demás medios materiales, indispensables para laborar con la mayor eficiencia posible. Además se podría pagar en forma más equitativa a todos los servidores judiciales (…) El mismo fondo de Jubilaciones y Pensiones –cuya estabilidad está seriamente amenazada- podría ser reforzado de esa partida global (…) El porcentaje promedio que ha correspondido al Poder Judicial en los últimos siete años, ha sido de un 2.75 por ciento, en relación con el Presupuesto General de Ingresos (…) La experiencia ha venido a demostrar que el indicado porcentaje resulta del todo insuficiente para el adecuado funcionamiento del Poder Judicial. Para darse cuenta de ello, basta reparar en los edificios inadecuados que ocupan casi todos los tribunales de la República, en la lentitud con que se tramitan los diversos asuntos judiciales, debido al escaso número de tribunales y del personal que tienen los que funcionan en la actualidad, en el insuficiente número de máquinas de escribir y de otros muebles que son de imperiosa necesidad, en las bajas dotaciones de los servidores judiciales, etc. etc. (…)”.

Por su parte, la Comisión legislativa especial nombrada para dictaminar el proyecto de reforma al artículo 177 de la Constitución, en primera legislatura, en su informe del 9 de octubre de 1956 (visible a folios 20-21 del expediente legislativo), estimó lo siguiente:

“Esta reforma constitucional –con la cual se afianzará definitivamente la autonomía del Poder Judicial en el aspecto económico hará posible que en el futuro encuentren solución adecuada los múltiples problemas que en la actualidad confronta dicho Poder por la limitación de los recursos económicos asignados a él en los presupuestos nacionales. Esos problemas vienen de muy atrás y se agravan día con día como consecuencia del crecimiento y desarrollo de la población que demanda cada vez más servicios de administración de justicia. Las oficinas judiciales no cuentan con personal suficiente para atender los muchos problemas a diario surgidos y en lo material, se hallan con muy pocas excepciones, alojadas en locales totalmente inadecuados y sin mobiliario ni equipos suficientes (…) Las remuneraciones de los servidores judiciales son, por otra parte, exiguas de tal modo que la carrera judicial no ofrece estímulo ni aliciente alguno a quienes deseen iniciarse en ella y esto aleja en muchos casos a elementos de vocación y capacidades que podrían prestar, en otras condiciones, sus servicios como Alcaldes, Jueces o Magistrados”.

Consecuentemente, la idea rectora que inspiró la reforma constitucional de 1957 lo fue fortalecer la organización y funcionamiento del Poder Judicial, para que ejerciera de forma eficiente y eficaz su función esencial de impartir o administrar justicia. Bajo esta inteligencia, cualquier disposición del legislador ordinario tendiente a adscribir en la organización del Poder Judicial órganos que ejercen competencias materialmente administrativas ajenas o que no atañen a la función jurisdiccional, resulta inconstitucional, en cuanto vulnera la autonomía financiera y, por consiguiente, la independencia del Poder Judicial, al desviar el uso y empleo, aunque lo sea en un pequeño porcentaje, del mínimo presupuestario garantizado a éste para otros fines. Se puede afirmar, entonces, que el párrafo 2° del artículo 177 de la Constitución Política, adicionado por la Ley No. 2122 del 22 de mayo de 1957, es una clara garantía institucional, puesto que, al consolidar la autonomía e independencia financiera del Poder Judicial garantiza un ejercicio efectivo, por parte de cualquier persona, del derecho fundamental establecido en el artículo 41 de la Constitución Política de acceder la jurisdicción y de obtener una justicia pronta y cumplida”.

La afirmación de que no se estén sustrayendo competencias administrativas esenciales de organización y conexas con la función jurisdiccional es muy relativo, si como se explicó atrás, se está modificando un aspecto organizativo y de la administración del personal del Poder Judicial. Con ello, se ignora la historia de la enmienda constitucional, donde sí fue contemplado como justificación para pasar la reforma al artículo 177. La mayoría afirma que se trata del mismo contenido esencial de un instituto jurídico, pero al hacerlo la ley elimina la administración de las pensiones en el Consejo Superior del Poder Judicial, para otorgarla a una Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial. Es cierto, que se mantiene dentro del Poder Judicial, pero ahora en un órgano desconcentrado, lo que, evidentemente, toca una parte esencial del gobierno del Poder Judicial (artículos 152 y 156, Constitucionales). Hay un cisma que produce afectación a la organización del Poder Judicial, si se quiere en forma lata, en la capacidad de organizarse, en el manejo y administración del fondo, para el ejercicio de los derechos de la seguridad social del personal del Poder Judicial, que vale decir, es contrario al criterio de la Corte Plena, por la forma omisa de realizar una consulta institucional, y por ignorar su opinión en contra del principio de la legalidad funcional de un Poder de la República. Recuérdese que la reforma al artículo 177, Constitucional, venía atribuida con la visión de reforzar la independencia judicial, incluida la de sus funcionarios, dentro de la cual estaría incluida la administración de fondo de pensiones. De hecho, el reconocimiento de algo tan importante, que tímidamente fue incardinado posteriormente en la Constitución Política de 1949, no llegó tan lejos para incluir -explícitamente- la irreductibilidad de los salarios de los funcionarios judiciales, como en otras latitudes, sin embargo si funcionó en nuestro país porque le permite gozar de los índices de independencia judicial que Costa Rica ha disfrutado comparativamente a nivel global, que es fruto claramente de la independencia económica del Poder Judicial. Esto ha sido en parte gracias al reconocimiento del régimen de empleo público que se fue consolidando a lo largo de la vida republicana de este país.

La Sentencia N° 1996-03575 de las 11:18 horas del 12 de julio de 1996, indicó sobre:

“… el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones”.

Por Sentencia N° 1998-005795 de las 16:12 horas del 11 de agosto de 1998, que estableció que:

“De lo dispuesto en el artículo 154 de la Constitución Política, -que dice-:

"El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos" deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros "influyentes" de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independecia (sic) de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constiuye (sic) una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes”.

Por Sentencia N° 1998-005798 de las 16:21 horas del 11 de agosto de 1998, esta Sala estableció que:

“La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículoss 9 y 154 (sic). También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que:

"1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter.

2.- ..." La independencia del Organo (sic) Judicial se plantea hacia lo externo. El Organo (sic) Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada, a esta independencia es a la que me referiré de seguido. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Organo (sic) Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones”.

Esto no es poca cosa, toda vez que la organización y administración de la función judicial no solo no debe limitarse a la parte jurisdiccional como lo entiende la mayoría, sino que esta está complementada por otras funciones de organización, que le deberían ser respetadas como Poder de la República. Como se dijo línea atrás, la enmienda a la Constitución Política contempló no solo los aspectos jurisdiccionales, también operativos del Poder Judicial, por lo que estaría contemplado por el Constituyente originario en el artículo 167, porque desde el seno de la Corte Plena en 1956, y en la Asamblea Legislativa de 1957, adoptó desde esa época fundacional de la Segunda República, responder a las necesidades de los funcionarios en sus salarios y régimen previsional, un precepto toral para la democracia costarricense.

Es evidente, que el Fondo de Pensiones y Jubilaciones del Poder Judicial formaba parte esencial de la independencia económica del Poder Judicial de aquella época, y debe seguir siendo en la nuestra, según la doctrina del desarrollo progresivo, evolutivo y no regresivo de los derechos sociales. El Constituyente derivado, al acoger la visión de la Corte Plena, tomó un paso decisivo para receptar la gestión de forma independiente y autónoma del resto de los poderes políticos, lo que a su vez, permitió que dicha gestión y gobierno se hiciera dentro de los fines legales y constitucionales de la administración de justicia. Tampoco se puede afirmar, como lo dice la mayoría, que el reconocimiento del porcentaje constitucional del 6% haya sido llano y sin problema alguno; por el contrario, lo propio de ello es que la relación entre poderes ha sido pedregoso, áspero, abrupto, de modo que todo presupuesto se ha obtenido con gran esfuerzo o negociación oportuna de los representantes y autoridades del Poder Judicial. De hecho que el Constituyente previó tal posibilidad de negociación y consideración al establecer una segunda posibilidad de las rentas adicionales para los planes de inversión, entre otras cosas. El artículo 177, de la Constitución Política, con el 6% de los ingresos ordinarios del ejercicio económico de la República es un aspecto que ha servido de estímulo para el legislador para utilizar la órbita del Poder Judicial como un factor agregador de instituciones administrativas ajenas a la función judicial. Precisamente, la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, antes citada, termina con la declaratoria de inconstitucionalidad de normas del Código Notarial, por establecer un órgano de naturaleza administrativa como la Dirección de Notariado dentro del Poder Judicial con violación a los principios constitucionales de separación de funciones, reserva o exclusividad de jurisdicción, independencia y autonomía financiera del Poder Judicial, y el derecho a una justicia pronta y cumplida de los habitantes de la República.

En continuidad con la Sentencia N° 2017-09551 de las 11:40 horas del 21 de junio del 2017, se indicó también que:

“Por todo ello debemos reconocer que con el objeto de organizar racionalmente el trabajo, con eficacia, eficiencia, simplicidad y celeridad, toda función primaria debe estar acompañada de las otras funciones -no primarias del órgano constitucional-, y estar alineadas hacia la función primaria; es así como debe reconocerse que, tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc. Evidentemente, en el contexto costarricense sería un serio contrasentido transitar en contra de una larga tradición legislativa de confiar las atribuciones a un único Poder (que en otras latitudes no existe), pero pensando en garantizar esos controles horizontales en un Poder Judicial independiente”.

Entonces, si lo relacionado a las pensiones y jubilaciones del Poder Judicial fueron incluidos como parte de esa independencia económica del Poder Judicial como tema de fondo desde 1956, es para los suscritos una razón adicional para procurar la aplicación del artículo 167, de la Constitución Política, pues el cambio de esquema para una desconcentración del órgano administrador se vino a modificar por una ley posterior. Esto abre el mal antecedente de que, en el futuro, mayorías transitorias en la Asamblea Legislativa incursionen en otros aspectos del manejo del personal del Poder Judicial.

Otra razón es que una mayoría reforzada garantiza no solo la independencia judicial desde el punto de vista institucional, sino para la persona del juez y jueza individualmente considerado, en el que se afectan los derechos económicos, sociales y culturales, establecidos a través de un régimen de la seguridad social y previsional. No se puede negar que el Poder Judicial forma parte de un todo, el “Estado”, también se debe hacer sentir su posición estratégica y clave dentro de su organización, con las funciones públicas de sus funcionarios que son altamente especializadas y apegadas al Derecho, según se describía antes en los antecedentes de este Tribunal, y cuya función es última en la solución de los conflictos y como pacificador de ellos. Esto claramente tiene un costo y sacrificio para su personal, que debe ser compensado por el “Estado”, pero más en una democracia funcional como la costarricense, que debe asumir no sólo la parte económica de su sostenimiento, sino de su protección.

La independencia judicial tiene como fin garantizar la imparcialidad judicial, lo que se comparte con la mayoría del Tribunal, aunque no con la claridad que desearía esta minoría, toda vez que el problema de la reforma al artículo 177, de la Constitución Política, cristalizó la necesidad muy sentida de proteger en términos generales la institucionalidad y la administración -también- de todo lo relativo al personal del Poder Judicial, lo cual debería ser resguardado celosamente, y de las cuales no puede dispensarse la oposición jurídica de la cabeza del Poder Judicial, de frente a los efectos regresivos de la legislación que se puedan producir en un futuro. Se debe traer a colación, la regla constante de la importancia de proteger la parte de la remuneración y lo relativo al régimen de pensiones de los jueces y juezas, de sus funcionarios, en ordenamientos jurídicos más importantes del mundo.

De este modo, los suscritos magistrados consideramos que la Ley N° 9544 del 24 de abril de 2018, contiene vicios esenciales en el procedimiento legislativo que lo afectan en su totalidad, consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia; y, con ello, es contrario al Derecho de la Constitución. En razón de lo anterior, resulta inconducente -para los suscritos juzgadores- entrar a analizar el resto de los alegatos de fondo formulados por los accionantes contra el contenido sustancial de la ley, salvo en aquellos supuestos en los que se requirió tomar posición para que existiera voto de toda conformidad (artículo 60.2, del Código Procesal Civil), lo cual está reflejado en la sentencia de la mayoría de esta Sala”.

De este modo, los suscritos magistrados Cruz Castro, Salazar Alvarado y Garita Navarro, dejamos consignado nuestras razones adicionales.- F.-) Sobre la utilización del artículo 208 bis (234 bis actual) como un vicio de procedimiento Además de los vicios de procedimiento señalados en voto salvado indicado en el anterior considerando, he considerado que además, la aplicación del art.208 bis (234 bis actual) del Reglamento de la Asamblea Legislativa, a la ley impugnada en esta acción, la hace inconstitucional.

En el mismo sentido en que lo he expresado mediante el voto número 2011-015749 de las 09:32 horas del 16 de noviembre del 2011 (con base en las consideraciones dadas en las sentencias No. 2005-398, 2007-2901 y 2008-7687), y el voto número 2012-004151 de las 16 horas del 27 de marzo del 2012, he disentido del criterio de la mayoría porque estimo que el artículo 208 bis del reglamento legislativo, lesiona la Constitución Política, toda vez que la la posibilidad de aplicar un procedimiento especial, ad hoc, a un proyecto de ley, infringe el principio de seguridad jurídica, el derecho de participación política, representación, así como el principio democrático y el derecho de enmienda.

“Aceptar la posibilidad que la Asamblea aplique procedimientos especiales a la tramitación de reformas a su Reglamento y proyectos de ley, en los términos establecidos en el artículo 208 bis, sin que de previo se definieran las reglas del procedimiento a seguir, constituye una clara lesión al principio de seguridad jurídica y al principio democrático, pues esta sería la única forma en que los diputados conocieran previamente y con suficiente antelación el procedimiento al cual se iban a sujetar y así ejercer los mecanismo de participación y control correspondientes. He señalado que, si el legislador no establecía de manera clara las reglas procedimentales para aplicar lo pretendido en el artículo 208 bis, omitiendo establecer regulaciones o prácticas legislativas, incurría en una evasión o incumplimiento de sus deberes constitucionalmente asignados. El artículo 208 bis, en los términos en que está redactado, supone que cada vez que las mayorías lo decidan pueden, como ya está sucediendo, por vía de moción de orden, darle un trámite de excepción al proyecto de ley que se tramite y su discusión quedaría a la luz de procedimientos no establecidos en el Reglamento, es decir, en medio de una situación de inseguridad jurídica. Dejar al arbitrio de una mayoría el procedimiento que se quiera aplicar en cada caso concreto, sin que de antemano sea puesto en conocimiento de la totalidad de los miembros del Parlamento, causa una lesión al principio democrático en perjuicio de las minorías, en el tanto nada garantiza que bajo el panorama propuesto las minorías no se vean afectadas en cuanto al ejercicio de los derechos constitucionales de sus representantes en el Congreso.

Lo sucedido en el procedimiento aprobado para conocer el proyecto consultado, es un claro ejemplo de lo ya señalado, ya que por tratarse de una moción de orden, en principio, no requiere ser publicitada con suficiente antelación, independientemente de su complejidad. Tampoco proceden las mociones para modificarla, ya que tendría que tratarse de una propuesta nueva, para lo cual las otras fracciones cuentan con un tiempo sumamente corto, casi inmediato y una vez aprobada la moción por las mayorías, no tiene otra opción que sujetarse a la limitada participación que se les concedió en el procedimiento creado. También he considerado en esta hipótesis, que se conculca el derecho de enmienda.

Todo diputado ostenta el derecho constitucional de participar en el proceso de formación de la ley, y así, influir en el contenido definitivo de ésta. Ciertamente la Asamblea Legislativa tiene potestad para disponer su reglamentación, como lo sería establecer procedimientos especiales, sin embargo, la forma en que se están autorizando resulta lesiva del principio de seguridad jurídica, el derecho de participación política, el de representación, así como el principio democrático y el derecho de enmienda de los diputados, en el tanto la omisión de reglamentar dichos procedimientos con la antelación y la participación necesaria por parte de todos los diputados hace nugatorios los mismos. A mayor abundamiento se transcribe el voto salvado que he suscrito en la sentencia mencionada, del año 2012:

“IX.-VOTO SALVADO DE LA MAGISTRADA CALZADA Y LOS MAGISTRADOS ARMIJO Y CRUZ, CON REDACCION DEL SEGUNDO. La inconstitucionalidad el artículo 208 bis del Reglamento de la Asamblea Legislativa, así como su aplicación a diversos procedimientos legislativos, ha sido objeto de reiterados cuestionamientos ante esta Sala, en los cuales esta Sala, por mayoría, ha considerado su conformidad con la Constitución, a partir de la sentencia 2008-7687, adoptada con el voto salvado de la Magistrada Calzada, el Magistrado Cruz y el magistrado Armijo, que reiteramos en esta ocasión y declaramos con lugar la acción por las siguientes razones:

Como punto de partida, es preciso reiterar lo expresado por esta Sala en la sentencia número 2011-04778 de catorce horas treinta y un minutos del trece de abril de dos mil once, en cuanto a la naturaleza del Derecho Parlamentario y los límites de la competencia de la Sala en materia de procedimiento legislativo:

“Naturaleza del Derecho Parlamentario y límites a la competencia de la Sala en materia de procedimiento legislativo. La misión fundamental de los parlamentos es la de adoptar decisiones con la participación del conjunto de fuerzas políticas que representan los diversos sectores de la sociedad civil. El derecho parlamentario cumple una función instrumental a ese fin -aunque tiene también una función política-, de facilitar y ordenar ese proceso. Este derecho tiene la característica de que surge producto de la “interna corporis”, de la capacidad de autonormatividad y dinámica propia de los parlamentos. En ese sentido no es un derecho que se crea premeditadamente, sino que se descubre, que nace de la práctica, por lo tanto el aspecto consuetudinario (la costumbre) e interpretador tienen gran importancia. En ese sentido, la potestad de autogobierno de los Parlamentos tiene una sólida tradición y justificación histórica. El derecho parlamentario se caracteriza por ser espontáneo, dinámico y flexible. Se nutre de la cotidianeidad, de la realidad política en que opera y donde se producen transformaciones constantes que hacen necesarias respuestas normativas, muchas veces contrarias a los dogmas clásicos de otras ramas jurídicas, como es el caso por ejemplo, del principio de inderogabilidad singular del reglamento, que tiene un tratamiento distinto al del derecho administrativo, y cede –en algunas ocasiones- en el ámbito parlamentario a la dinamicidad que exigen los procedimientos parlamentarios. Su límite, desde luego, está en la Constitución, en los principios y valores del régimen ideológico en el que opera. Por esa razón esta Sala ha reconocido que su función en materia de procedimiento legislativo es únicamente la de declarar, aquellos vicios sustanciales, que violen los principios y valores constitucionales aplicables a la materia, pues de lo contrario estaría afectando la capacidad autonormativa y funcional del parlamento (interna corporis), distorsionando su papel de guardián de la supremacía constitucional, por el de una especie de senado Ad hoc (sentencia número 2007-9699, de las diez horas del cuatro de julio de dos mil siete). De esta forma, como lo señaló este Tribunal en la sentencia 2005-07961, de las diecisiete horas cincuenta minutos del veintiuno de junio de dos mil cinco:

“La autodeterminación del Parlamento sobre su accionar interno -reconocida en forma reiterada por este Tribunal-, "interna corporis", es una de sus potestades esenciales expresamente reconocida por la Constitución Política en su artículo 121 inciso 22), y que resulta consustancial al sistema democrático. El objeto perseguido con la atribución de la competencia para autoorganizarse de la Asamblea, es la de que por su medio sean regulados sus procedimientos de actuación, organización y funcionamiento y en consecuencia su organización interna dentro de los parámetros que exigen los principios, democrático, de igualdad y no discriminación, con todos sus derivados. Esta potestad se desarrolla con absoluta independencia de los otros órganos del Estado –en virtud del principio establecido en el artículo 9 de la Carta Fundamental-, y tiene como límites: el acatamiento del Derecho de la Constitución, es decir, al conjunto de valores, principios y normas constitucionales, dentro de los que están los mencionados supra, el respeto a los principios de razonabilidad, racionabilidad y proporcionalidad, de tal forma que quienes ejerzan potestades públicas no pueden por acción, omisión o simple actuación material no fundada en un acto administrativo eficaz, violentar o amenazar los derechos fundamentales, toda vez que en un Estado democrático existe una constitución de la libertad, cuyo objeto es garantizarle al individuo el disfrute y goce pleno de los derechos humanos los que se encuentran actualmente reconocidos en las Constituciones Políticas de la mayoría de los países y en los tratados internacionales de derechos humanos (Derecho Internacional de los Derechos Humanos). No es legítimo entonces, utilizar las potestades para otros fines no asignados por el ordenamiento jurídico (vicio de desviación de poder) igual o más allá de lo razonable (vicio de exceso de poder). Dicho lo anterior, estima la Sala que no debe interferir con el derecho de autorregulación del Parlamento, salvo que, según se expuso, se viole alguno de los principios señalados, que en este caso concreto, implicarían la afectación del derecho de enmienda, entendido como el mecanismo de participación que tienen los diputados para influir durante el proceso formativo de la ley. De esta forma, las potestades de la Sala en esta materia son ejercidas bajo la perspectiva de un árbitro, que modera y contiene excesos pero no interfiere con una potestad constitucional intrínseca otorgada a otro órgano constitucional, de modo que sólo frente a violaciones evidentes o groseras, de los principios constitucionales que rigen el derecho parlamentario, sería legítima su intervención. El parlamento tiene derecho en ejercicio de su propia potestad de autorregulación, de conciliar o equilibrar, frente a situaciones concretas, no sólo el derecho de enmienda, sino también los otros principios de rango constitucional que también vinculan su actuar, como el de respeto a las mayorías y el de razonabilidad, es decir, que la armonización de todos y cada uno de los principios constitucionales que deben coexistir durante el procedimiento legislativo, es una competencia propia del Parlamento y concretamente del Director del debate y de los diputados, y cabe suponer que tales funciones se realizan con apego al ordenamiento y sus principios […]”. (El resaldado no es del original).

Dicha sentencia enfatiza que la intervención de la Sala en materia de procedimiento legislativo, conforme a lo señalado, sólo debe darse:

“[…] en caso de la utilización de estas potestades con evidente abuso de poder, que resulte en la anulación de un derecho y no en su armonización con el resto de los principios constitucionales del derecho parlamentario [...] Lo contrario implicaría a nuestro juicio un irrespeto a la potestad de autorregulación y al principio democrático. No debe entonces la Sala constituirse en una instancia de sustitución del ejercicio de potestades constitucionales y del debate y diálogo político, salvo que, como se indicó… se suprima, o anule el contenido de algún derecho fundamental.” El principio democrático. Nuestro voto minoritario da la razón al accionante, por los mismos fundamentos ya expresados en los votos salvados a la sentencias número 2005-398, 2008-07687 y 2007-2901 de 17:30 hrs. de 28 de febrero de 2007, partiendo del principio democrático, cuyo respeto resulta esencial para cualquier examen de la conformidad o disconformidad con la Constitución, de cualquier norma o acto. Sobre el particular, esta Sala ha expresado, en forma unánime, que:

“lo que el procedimiento legislativo pretende es asegurar el cumplimiento del principio democrático dentro de una sociedad que lo ha adoptado como propio de sus instituciones políticas. Por ser la democracia perfecta un ideal inalcanzable, el principio democrático se constituye en el parámetro que permite deducir el grado de proximidad que alcanza una determinada sociedad, en un momento histórico determinado, respecto del ideal y de su vocación, por acercarse al máximo posible al mismo. Como mínimo, el principio democrático exige respeto de los principios de participación y representación política –incluyendo todo lo que concierne al respeto de las minorías - base de nuestro sistema político. Este último se desdobla en aspectos tales como la legitimidad de los medios empleados para la designación de los diversos representantes y – no menos importante -, la posibilidad de oponerse, mediante el uso de medios legítimos, a la voluntad mayoritaria por parte de los grupos que representan las minorías. A partir de las anteriores observaciones, puede decirse que son inconstitucionales las violaciones del procedimiento que constituyan lesiones al principio democrático, dirección ineludible de la actividad parlamentaria. Asimismo, constituyen infracciones sustanciales, los trámites legislativos que por acelerados o impetuosos, provoquen debates que quedan ayunos de un proceso reposado en calidad y reflexión, que además, adolezca de una amplia proyección de la actividad legislativa, tal como lo garantiza el artículo 117 de la Constitución Política. Además, se han considerado vicios sustanciales del procedimiento, la omisión de publicación y la omisión de realizar las consultas obligatorias establecidas constitucionalmente. En cuanto al primer aspecto, al ser la Asamblea Legislativa un órgano representativo de la comunidad nacional, la publicidad de los procedimientos parlamentarios es esencial, pues la soberanía reside en el pueblo y los diputados solamente son sus representantes (artículo 105 constitucional), por ello su actividad debe, necesariamente, trascender a toda la comunidad, a tal punto que algunos especialistas en Derecho constitucional lo definen como un órgano de publicidad” (sentencia número 2012002675 de once horas y cincuenta y dos minutos del veinticuatro de febrero del dos mil doce).- Costa Rica es una democracia representativa, lo cual no implica que los gobernantes de un determinado momento histórico, puedan tomar sus decisiones, sin escuchar la voz de quien les ha dado tal mandato, es decir, la voluntad del pueblo como poder soberano. Valga esta aclaración, puesto que al no existir un mecanismo que se hubiere utilizado para intuir la voluntad ciudadana, el único mecanismo posible en una democracia, es abrir las puertas del diálogo, de la discusión pausada, reposada, con apertura, pues de lo contrario, correríamos el riesgo de caer en una “tiranía democrática”, violando de forma grosera el principio democrático, que es el que garantiza a los habitantes de nuestro país que los intereses de la Nación serán resguardados con celo y para el bien de todos. Es menester indicar, para los efectos de este razonamiento, que una cosa es una reforma del Reglamento, que busca ordenar y ajustar a los tiempos (bipartidismo-multipatidismo) en su quehacer cotidiano, para que el Poder Legislativo sea más efectivo en la regulación de las situaciones que acontecen en el país, y otra, generar reformas a un artículo específico, para la tramitación de un caso concreto. Nuestra Carta Fundamental no regula la forma en que debe ser reformado el reglamento la Asamblea Legislativa, por lo que este mismo texto normativo es el que ha tenido que ir reglamentando los procedimientos que se han estimado convenientes y acordes con el Derecho de la Constitución, lo que resulta esencial para garantizar la seguridad jurídica, el derecho de representación y la tutela del principio democrático dentro del procedimiento legislativo. Resulta indiscutible la potestad que tiene ese órgano para dictar las normas de su interna corporis, prevista no solo en la carta Fundamental en el inciso 22) del artículo 121, sino también consustancial al sistema democrático y específico de la Asamblea Legislativa como poder constitucional. Por ende, también la Sala ha reconocido esta potestad autorreguladora y por ello, desde esa perspectiva, se ha considerado, claramente, que el Parlamento tiene potestad para establecer procedimientos especiales, si a bien lo tiene, pero que éstos deben ser definidos de manera expresa y detallada, ya que, de lo contrario, aceptar la posibilidad de que la Asamblea aplique procedimientos especiales a la tramitación de reformas a su Reglamento y proyectos de ley, en los términos establecidos en el artículo 208 bis, sin que de previo se definan las reglas del procedimiento a seguir, constituye una clara lesión al principio de seguridad jurídica y al principio democrático, pues según el criterio externado, es la única forma en que los diputados conozcan previamente y con suficiente antelación el procedimiento al cual se van a sujetar y así ejercer los mecanismos de participación y control correspondientes.

Seguridad jurídica. Si el legislador no establecía de manera clara las reglas procedimentales para aplicar lo pretendido en el artículo 208 bis, u olvidaba establecer regulaciones o prácticas legislativas, incurría en una evasión o incumplimiento de sus deberes constitucionalmente asignados. La introducción de la norma citada al Reglamento, en los términos en que se aprobó, supone que cada vez que las mayorías lo decidan pueden, como ya está sucediendo, por vía de moción de orden, darle un trámite de excepción al proyecto de ley que se tramite y su discusión queda a la luz de procedimientos no establecidos en el Reglamento, es decir, en medio de una situación de inseguridad jurídica.

Principio de publicidad. Respecto del principio de publicidad, como bien se indicó en el voto de mayoría, el procedimiento se crea mediante una moción de orden, las cuales, según el artículo 153 del Reglamento, pueden ser presentadas en cualquier momento del debate, procediendo a su discusión inmediatamente. No requieren ser anunciadas más que en el mismo momento, lo que resulta insuficiente para que sea revisado previamente a su adopción por parte de los diputados. Es por eso, que dejar al arbitrio de una mayoría el procedimiento que se quiera aplicar en cada caso concreto, sin que de antemano sea puesto en conocimiento de la totalidad de los miembros del Parlamento, causa una lesión al principio democrático en perjuicio de las minorías, en el tanto nada garantiza que bajo el régimen y aplicación del artículo 208 bis del Reglamento Legislativo, las minorías no se vean afectadas en cuanto al ejercicio de los derechos constitucionales de sus representantes en el Congreso. Una vez aprobada la moción por las mayorías, las fracciones minoritarias no tienen otra opción que sujetarse a la limitada participación que se les concedió en el procedimiento creado.

Restricción irrazonable del derecho de enmienda y otros. Todo diputado ostenta el derecho constitucional de participar en el proceso de formación de la ley, y así, influir en el contenido definitivo de ésta. Aunque se reconoce la potestad que tiene la Asamblea Legislativa para disponer su reglamentación, como lo sería establecer procedimientos especiales, sin embargo, la forma en que lo autoriza resulta lesiva del principio de seguridad jurídica, el derecho de participación política, el de representación, así como el principio democrático y el derecho de enmienda de los diputados, en el tanto la omisión de reglamentar dichos procedimientos con la antelación y la participación necesaria por parte de todos los diputados hace nugatorios los mismos.

En síntesis, el artículo 208 bis del Reglamento de la Asamblea Legislativa, constituye un elemento de ruptura total con los principios señalados y permite que, mediante una moción aprobada por dos tercios de los diputados, el Poder Legislativo pueda atentar contra su condición de órgano que garantiza la representación popular, según el diseño estructurado el Título Noveno de la Constitución Política de 1949, en detrimento sustancial del principio democrático.- Los suscritos son conscientes de las implicaciones de la anulación de esa norma, mediante la cual se han aprobado numerosas leyes, algunas de especial trascendencia para el país. Sin embargo, como la aplicación de esa norma procedimental se ha realizado al amparo de una práctica constitucionalmente consolidada por efecto de la propia jurisprudencia de esta Sala, resulta procedente aplicar, al presente caso, la eficacia “ex nunc” de la estimatoria, en virtud de la doctrina expresada en la sentencia 1-92 de 14:00 hrs. de 7 de enero de 1992, y repetida en la sentencia 2-92, de 14:15 hrs. del mismo día, en el sentido de que:

"...la interpretación que a partir de la citada resolución da la Sala al artículo 195 incisos 4 y 7 de la Constitución Política, en su función de intérprete de la Carta Fundamental y a cuyos precedentes y jurisprudencia se les reconoce fuerza vinculante "erga omnes", no genera "per se" la inconstitucionalidad de las demás reformas aprobadas con anterioridad a esa sentencia y que no hubiesen obtenido mayoría calificada en los tres debates de las dos legislaturas. Por el contrario, todas ellas se incorporaron a la Carta Fundamental al amparo de una práctica constitucional consolidada, desde la decisión no impugnada del Presidente en sesión del 29 de octubre de 1962, que debe entenderse corregida a partir de la nueva interpretación establecida por la Sala, por lo que sus efectos se circunscriben exclusivamente a las que se produzcan en el futuro, pero nunca entender que por su medio pueden ser afectadas otras anteriores, pues de ser así se violentaría el principio de "seguridad jurídica". Por consiguiente, los criterios correctivos que en materia de reformas constitucionales emita esta Sala en ejercicio del control preventivo de constitucionalidad, deben entenderse con efectos ex nunc y no ex tunc, todo ello dentro de la filosofía que recoge la Ley de la Jurisdicción Constitucional, en el capítulo referente a las consultas legislativas de constitucionalidad y el principio de seguridad jurídica, antes referido".

Aunque el anterior criterio ha sido sostenido por la Sala con relación a criterios correctivos en materia de reformas constitucionales emitidas en el ejercicio del control previo de constitucionalidad, no solamente es válido, sino necesario, aplicarlo al presente caso, ya no en el ejercicio del control consultivo, sino en un caso contencioso, por dos razones: la primera, porque en virtud de que la Constitución y, derivada de ella, la jurisprudencia de la Sala, son el fundamento y raíz de la seguridad jurídica, tanto para los Poderes Supremos como para todos los entes públicos, los particulares e incluso, para terceros Estados mediante la adopción de acuerdos y tratados, cuando el Poder Legislativo ha adoptado acuerdos y aprobado leyes mediante la aplicación de reglas de procedimiento constitucionalmente válidas en el momento de su aplicación y con el respaldo del Tribunal Constitucional, se derrumbaría la seguridad jurídica si en casos como el presente, al invertirse la prevalencia de un criterio sobre la constitucionalidad de una norma procedimental aplicada de buena fe por el Poder Legislativo, en forma reiterada, a lo largo del tiempo, tuviera un efecto ex tunc, como en principio lo suelen tener las declaratorias de inconstitucionalidad de normas sustantivas, incluso de las propias reformas constitucionales. En segundo lugar, el párrafo segundo del artículo 91 de la Ley de la Jurisdicción Constitucional prevé que: “La sentencia constitucional de anulación podrá graduar y dimensionar en el espacio, el tiempo o la materia, su efecto retroactivo, y dictará las reglas necesarias para evitar que éste produzca graves dislocaciones de la seguridad, la justicia o la paz sociales”, por lo que en este caso resulta necesario, a fin de evitar esas graves dislocaciones, dimensionar los efectos de la estimatoria, potestad de la cual ya ha hecho uso esta Sala en diversas ocasiones (v. por ejemplo, la sentencia número 01698-12 de doce horas doce minutos del cinco de marzo de mil novecientos noventa y nueve, 3410-92 de catorce horas cuarenta y cinco minutos del diez de noviembre de mil novecientos noventa y dos y 2010-021258 de catorce horas del veintidós de diciembre de dos mil diez.). Por lo anterior, no ha lugar a la pretensión de los diputados Manrique Oviedo, Jeannette Ruiz, Ana Eugenia Venegas y Gustavo Arias Navarro para que, en el evento de que se declare inconstitucional el artículo 208 bis del Reglamento Legislativo, se declaren inconstitucionales todas las leyes aprobadas mediante el procedimiento especial previsto en esa norma sino que se dimensionan los efectos de la sentencia en el sentido de que la inconstitucionalidad no afecta, en este caso, las leyes y acuerdos aprobados mediante procedimientos realizados en aplicación de la norma impugnada, salvo aquellos procedimientos legislativos que no han sido aprobados en primero ni en segundo debate a la fecha de publicación del aviso respectivo.-“ Así entonces, siendo que he considerado que el artículo 208 bis del Reglamento de la Asamblea Legislativa es inconstitucional, se deriva de ello que también lo sería, por la forma, los proyectos de ley que se hayan aprobado en aplicación de dicha norma, tal como sucede con la ley impugnada.

En conclusión.- Conforme a las razones de procedimiento indicadas (violación al principio de razonabilidad técnica) y en las razones adicionales de procedimiento (violación al artículo 167 constitucional, al principio de independencia judicial y por utilización del procedimiento abreviado) considero que el plazo breve establecido en la norma impugnada es violatorio del derecho a obtener una pensión digna, proporcional y razonable, del principio de igualdad, del principio de progresividad de los derechos sociales, del principio de confianza legítima y de situaciones jurídicas consolidadas, además de normativa internacional.

IX.- DOCUMENTACIÓN APORTADA AL EXPEDIENTE.

Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión N° 27-11 del 22 de agosto del 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión N° 43-12 celebrada el 3 de mayo del 2012, artículo LXXXI.

Por tanto:

Por mayoría se declaran SIN lugar las acciones acumuladas. El magistrado Cruz Castro salva el voto, declara con lugar la acción y considera que para ser conforme al Derecho de la Constitución el régimen transitorio debió haber cubierto a los servidores judiciales que contaran con veinte años o más de servicio en el Poder Judicial. Los magistrados Salazar Alvarado y Picado Brenes salvan el voto y declaran parcialmente con lugar la acción, al estimar que existe una omisión inconstitucional de no atender un transitorio de veinticuatro meses conforme a los antecedentes actuariales.- Fernando Castillo V.

Fernando Cruz C. Luis Fdo. Salazar A.

Jorge Araya G. Aracelly Pacheco S.

Alejandro Delgado F. Ana María Picado B.

Voto salvado del magistrado Salazar Alvarado y de la magistrada Picado Brenes.

Con el debido respeto, suscribimos este voto salvado y nos separamos del voto de mayoría, con los siguientes argumentos:

A.- Sobre la referencia al procedimiento legislativo seguido en la Ley N° 9544, en cuanto a la falta de consulta al Poder Judicial y a la omisión de consulta institucional del artículo 167, de la Constitución Política, así como del artículo 208 bis, del Reglamento de la Asamblea Legislativa.

Sobre estos puntos, consideramos innecesario repetir los argumentos, en cuanto al procedimiento legislativo seguido a la Ley N° 9544 del 24 de abril de 2018, que fueron abordados en la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018 (voto salvado de los magistrados Cruz Castro, Salazar Alvarado y Hernández Gutiérrez), reiterado en la Sentencia N° 2021-11957, de las 17:00 horas del 25 de mayo de 2021 (voto salvado de los magistrados Salazar Alvarado y Hernández Gutiérrez). De igual manera, esos argumentos ya constan en el expediente, específicamente en la resolución interlocutoria N° 2022-008712 de las 9:10 horas del 20 de abril de 2022, por lo que hacemos remisión a las razones ahí debidamente expresadas y consignadas. Sin embargo, para una mejor comprensión, dejamos como epítome de esas sentencias, que el vicio de procedimiento afectaba al Proyecto de Ley N° 19.922, respecto a la violación del artículo 167, de la Constitución Política; y, en consecuencia, en su totalidad la Ley N° 9544, y que, solo era necesario la toma de una posición para que existiera voto de toda conformidad (artículo 60.2, Código Procesal Civil). Así, por el fondo, abordamos lo relacionado a la omisión del legislador de no haber tomado en cuenta los factores de tiempo servido, género y edad, para la asignación diferenciada de pensión entre hombre y mujer, y la desestimación de esos reclamos por la ausencia de estudios técnicos en el contexto concreto costarricense.

B.- El problema de la razonabilidad y proporcionalidad.

Desde el punto de vista del Derecho Constitucional, es claro que toda legislación que apruebe la Asamblea Legislativa debe estar amparada al Estado Social de Derecho. Asumir lo contrario implicaría aceptar que el aparato estatal estaría autorizado y legitimado para adoptar medidas injustas y arbitrarias, que por definición serían contrarias a los derechos fundamentales y al bien común. Afortunadamente, por jerarquía del Derecho de la Constitución, su normativa, por la potencia y resistencia de normas superiores del ordenamiento jurídico, son exigibles y esto tiene implicaciones formales en el proceso de formación del derecho, y materialmente resguardando el contenido de los derechos fundamentales. Es así, que la conformidad de todas las actuaciones del poder público (leyes y actos públicos en general) requieren estar en conformidad con la ideología de la Constitución Política, y las obligaciones vinculantes de la normativa internacional sobre derechos humanos, incluida aquella legislación internacional laboral, y los principios generales del Derecho Internacional.

El problema que se endilga al Transitorio impugnado es si carece de fundamento técnico que respalde el plazo de dieciocho meses otorgado para la aplicación de la nueva reforma, lo que involucra la razonabilidad técnica de la norma en cuanto a la proporcionalidad entre el medio utilizado y el fin buscado con la norma, dentro del contexto de regímenes de pensiones.

En efecto, para lo anterior, debemos traer a colación, el dictamen de esta Sala Constitucional, N° 2017-0011714 de las 12:00 horas del 26 de julio de 2017, en cuanto analizó un proyecto de ley que permitía el traslado de personas aseguradas bajo el Régimen de Invalidez, Vejez y Muerte administrado por la Caja Costarricense de Seguro Social al Magisterio Nacional; y, en esa ocasión, se estableció que:

“En esta materia, es menester que la Asamblea Legislativa cuente con estudios técnicos que demuestren que la entrada en vigencia de la Ley no afectará la sostenibilidad financiera del régimen de la Caja Costarricense del Seguro Social, máxime en la situación actual, donde se ha cuestionado su sostenibilidad, tal y como ha sido de conocimiento de la opinión pública. A falta de estudios técnicos en esta dirección, y teniendo por demostrado que el proyecto de ley conlleva una afectación a la Reserva del régimen, no cabe duda que se ha producido una vulneración al numeral 73 constitucional. Muy distinta sería la situación si existieran los estudios técnicos, pues en caso de que se demuestre la no afectación a la sostenibilidad financiera del régimen de Invalidez, Vejez y Muerte, el legislador, constitucionalmente hablando, no tendría impedimento para ejercer la potestad de legislar. Como es bien sabido, este Tribunal ha exigido en materia ambiental la necesidad de que haya estudios técnicos para reducir áreas protegidas, y ha concluido que esta omisión constituye un vicio de carácter esencial en el procedimiento legislativo (véase la opinión consultiva n.° 2012-13367). Siguiendo esa misma doctrina, se evacua la consulta legislativa facultativa de constitucionalidad, en el sentido que el Proyecto de Ley denominado: "Reforma del Sistema de Pensiones y Jubilaciones del Magisterio Nacional", expediente legislativo número 17.561, es inconstitucional por violación al artículo 73 de la Constitución Política, toda vez que carece de un estudio que determine técnica y científicamente cuál es el impacto real sobre la Reserva del régimen del Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, vicio que es de carácter esencial del procedimiento legislativo”.

Aunado a la interpretación dada por la Sala, estimamos que es importante agregar, al anterior razonamiento, que hay obligaciones internacionales concretas que obligan al país a sustentar técnicamente los cambios y reformas que afecten los regímenes de pensiones. En este sentido, los estudios técnicos son imprescindibles para demostrar que los medios utilizados son adecuados a los fines legales propuestos, sin desamparar a las personas que pudieran mantener sus derechos y expectativas legítimas.

Cuando se procura una modificación o reforma legal a un régimen de pensiones, lógicamente esta gira alrededor del interés de buscar un impacto positivo en el fondo y sus prestaciones. Pero, como sucedió con el caso anteriormente transcrito, la ausencia de un estudio técnico actuarial fue manifiesto y evidente, lo que afectó la determinación del “… impacto real sobre la Reserva del régimen de Invalidez, Vejez y Muerte, vicio que es de carácter esencial del procedimiento legislativo”. Es claro, que cuando el Estado Social de Derecho debe ejercer la iniciativa para la reforma de un régimen de pensiones, el fundamento toral es el equilibrio financiero, como está establecido en la legislación internacional, lo que se abordará en adelante. En este sentido, al eliminar los riesgos se debe demostrar que habrá un impacto positivo en la reserva, para garantizar sustentabilidad y equilibrio financiero, y la concesión futura de los derechos prestacionales. Así, corresponde al estudio técnico marcar los derroteros para sustentar las medidas que debe tomar la legislación para que una reforma sea adecuada para sustentar actuales y futuras prestaciones.

Por Sentencia N° 2020-19274 de las 16:30 horas del 7 de octubre de 2020, la Sala tuvo oportunidad para asignar la fuerza normativa del artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo, en la distribución de cotizaciones e impuestos, así como en la contribución patronal y estatal, y sostuvo que:

“… el derecho a la seguridad social a nivel internacional se debe caracterizar porque se compone de un nivel mínimo de prestaciones que comprendan al menos una atención básica de la salud, prestaciones pecuniarias de enfermedad, de desempleo, prestaciones de vejez, en caso de accidente del trabajo y enfermedades profesionales, prestaciones familiares, prestaciones de maternidad, de invalidez y de supervivencia, todo esto de conformidad con el Convenio N° 102, de la Organización Internacional del Trabajo. El derecho a la seguridad social y a la protección social se refiere al derecho a que no se pueda denegar la cobertura de la seguridad social, de manera arbitraria o no razonable, y el derecho a la igualdad en el disfrute de la adecuada protección en caso de desempleo, enfermedad, vejez o falta de medios de subsistencia, en circunstancias que escapan al control de la persona”.

Además, se indicó que:

“… el Convenio constituye un marco obligatorio de referencia para los Estados; es decir, contiene disposiciones que son la base de las regulaciones que posteriormente pueden aprobar según los diferentes tipos de coberturas a las que se obligaron. No está demás, como se ha indicado en otras ocasiones, que los Estados pueden mejorar esos estándares. Apegado a ese marco regulatorio, la Parte XIII del mencionado Convenio, contempla otras “Disposiciones Comunes” a las coberturas ofrecidas a los asegurados, entre ellas las causas de suspensión, la posibilidad de discutir judicialmente lo referido a los derechos involucrados, así como las reglas que gobiernan en general la administración. Lo que quiere decir que son reglas que amalgaman y unen algunos aspectos de las coberturas; y, en consecuencia, deben considerarse en conjunto algunos de los aspectos administrativos.

De este modo, contiene dos principios torales, el principio de la solidaridad financiera (financiación colectiva y solidaridad financiera en documentos de la Organización Internacional de Trabajo) y el principio de la responsabilidad del Estado, donde el primero enuncia la obligación contenida en el inciso 1), del artículo 71, del Convenio N° 102 indicado (…).

(…) el principio de responsabilidad del Estado en la provisión de las obligaciones prestacionales, estaría presente en el mismo artículo 71, pero en el inciso 3), del mencionado Convenio N° 102. Dicha disposición dispone:

“El Miembro deberá asumir la responsabilidad general en lo que se refiere al servicio de prestaciones concedidas en aplicación del presente Convenio y adoptar, cuando fuere oportuno, todas las medidas necesarias para alcanzar dicho fin; deberá garantizar, cuando fuere oportuno, que los estudios y cálculos actuariales necesarios relativos al equilibrio se establezcan periódicamente y, en todo caso, previamente a cualquier modificación de las prestaciones, de la tasa de las cotizaciones del seguro o de los impuestos destinados a cubrir las contingencias en cuestión”.

Es claro cómo el Estado es garante de las pensiones del país. Este numeral establece una serie de obligaciones de garantía del Estado, especialmente el referido al liderazgo en lo que se refiere al servicio de prestaciones concedidas, lo que incluye las formalidades que debe observar cuando ejerce la obligación implícita de vigilar y materializar todas las medidas que involucra la preservación de los fondos de pensiones, incluyendo aquellas correctivas”.

La obligación internacional establecida en el artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, normativa que gobierna el tema de los balances y desbalances de los fondos de pensiones y jubilaciones, obliga al Estado -como principal responsable al mantenimiento de los fondos de pensiones- a la vigilancia y control, pero referenciado con respaldo técnico.

De la norma se desprende la responsabilidad general que implica tanto cuando el Estado asume la administración de los fondos, como cuando lo hace indirectamente. En este sentido, siempre asume el compromiso internacional por velar y controlar la materialización efectiva de las prestaciones -presentes y futuras- concedidas en el Convenio. De este modo, debe ser sujeto activo en la vigilancia y control de medidas que permitan esas prestaciones.

Como los fondos de pensiones no son estáticos, el principio de responsabilidad del Estado se traduce en la permanente vigilancia y control sobre las prestaciones, de sus fluctuaciones y si los derechos se puedan mantener en el tiempo. Es decir, que se requiere mantener la suficiencia de recursos, para que el nivel de las prestaciones se pueda mantener con las primas y/o los aportes, impuestos, y con las erogaciones administrativas, obligación que le corresponde al Estado, o responsable de mantenerlas en el tiempo.

Es importante mencionar, que el artículo 71, del citado Convenio N° 102, fue toral en la sentencia de esta Sala que resolvió el problema de los impuestos solidarios y contribuciones a las pensiones de alto perfil, al aplicar el límite convencional a esas contribuciones en un 50% sobre los salarios/prestaciones. Con ello, se consideró vinculante el numeral para el Estado Costarricense, de modo que por paridad de razón, también debe ser una norma que defina y determine todo lo que debe resolverse en este asunto.

En el caso que nos ocupa, cuando se inicia la reducción de los derechos y beneficios de los regímenes de pensiones, consideramos que se corre un riesgo de que en el proceso se puedan perder algunos de ellos sin justificación clara, y que se vaya en contra de los estándares internacionales, cuando no se pueden hacer efectivos estos derechos. El Estado Social de Derecho debe permitir una lectura adecuada a la pérdida de derechos prestacionales, que si bien opera dentro de un contexto económico, debe encontrar límites, entre los cuales debe estar que no puede desconocer el tiempo transcurrido de aportes basados en los salarios y las cotizaciones. El artículo 71, de comentario, debería tratarse como una protección contra la disminución arbitraria de las prestaciones, al desmantelamiento de la protección de forma injustificada, ya sea con estudios actuariales insuficientes u omitidos, todo lo cual sería inconvencional por ir contrario a la obligación internacional, y porque los derechos también deben estar defendidos cuidadosamente para impedir la pérdida de derechos a la protección social de forma injustificada. Nos cabe la pregunta, si sólo protegen las prestaciones en curso u otorgadas? La respuesta debería ser no, para ello se requiere que los proyectos de reforma contengan una norma transitoria, pues bien el campo económico no debe estar abstraído de las implicaciones que sus decisiones tienen sobre los derechos económicos, sociales, y culturales, que también son prestaciones exigibles, razonablemente. Tanto no pueden considerarse estancos aislados entre sí, como dominado uno respecto del otro si no es a través de un ejercicio razonable y de ponderación de los derechos e intereses involucrados. No se niega la libertad de configuración del legislador; sin embargo, es importante recordar que tiene los límites establecidos en el Derecho de la Constitución (valores, principios y derechos), y más cuando se encuentra sujeto a los estudios técnicos que jurídicamente son exigibles, como lo ha establecido la jurisprudencia de la Sala.

Consideramos que las obligaciones que se desprenden de este numeral 71.3, del Convenio N° 102, exigen que la formulación de reformas legales respondan al comportamiento de los fondos y su suficiencia, y que esas enmiendas respondan a la técnica precisa y correcta en dos momentos: a) cuando fuere oportuno para ejercer un control periódico por los movimientos propios de funcionamiento y gestión, y b) en todo caso, “previamente a cualquier modificación de las prestaciones, de la tasa de las cotizaciones del seguro o de los impuestos destinados a cubrir las contingencias en cuestión”.

Lo establecido en esta norma permite asegurar las protecciones en favor de los derechos prestacionales convenidos, especialmente las otorgadas, para ceñir las reformas o enmiendas al sistema de pensiones a una técnica matemática ligada a los estudios y cálculos actuariales que reflejen la condición de un equilibrio de recursos, que es la obligación internacional que adquiere el Estado costarricense.

Al igual que se hizo en la Sentencia N° 2020-19274 anteriormente citada, en el que se acudió al Estudio General relativo a los instrumentos de la seguridad social, realizado a la luz de la Declaración de 2008 sobre la Justicia Social para una Globalización Equitativa, Informe de la Comisión de Expertos en Aplicación de Convenios y Recomendaciones (artículos 19, 22 y 35, de la Constitución de la Organización Internacional del Trabajo), Informe III (Parte 1B), sostenida en la Conferencia Internacional del Trabajo, 100a reunión, 2011, y que en esta oportunidad, también es importante transcribir lo siguiente:

“465. La Comisión desea subrayar que la correcta gestión financiera y jurídica de los sistemas de seguridad social que son objeto de reformas podría facilitarse considerablemente, si debiese realizarse una evaluación actuarial antes de su presentación ante los parlamentos. La Comisión ha observado que, con demasiada frecuencia, los cambios en la legislación de seguridad social se realizan apresuradamente teniendo en cuenta intereses inmediatos sin haber realizado previamente un análisis sustancial de carácter financiero y económico de los efectos de la reforma y de los posibles costos que deberá afrontar la sociedad. Al observar que esta es una situación más bien común incluso en los países desarrollados, considera probable que también se extienda a los países en desarrollo. No cabe duda de que la seguridad social debe regirse por normas jurídicas, pero si las leyes se modifican, la claridad que aportan las evaluaciones actuariales independientes respecto de las repercusiones correspondientes resulta esencial no sólo desde una perspectiva a corto plazo con la que los gobiernos suelen evaluar tales efectos, sino también desde una perspectiva a largo plazo en lo que se refiere al impacto que toda nueva ley puede tener sobre la sostenibilidad financiera del sistema.

466. Si los legisladores en materia de seguridad social se aproximaran a los actuarios para trabajar en común en la medida posible, estos últimos, a su vez deberían hacer lo mismo adoptando un enfoque proactivo en lo que respecta a la legislación en materia de seguridad social. En un estudio actuarial deberían figurar observaciones claras y objetivas sobre todo asunto que afecte el estado financiero de un régimen de la seguridad social, señalándose las deficiencias de las disposiciones legales que rigen el funcionamiento de dicho régimen. Estas deficiencias de la legislación nacional podrían advertirse si se comparase dicha legislación con las normas mínimas del Convenio núm. 102 y, a través de la formulación de hipótesis alternativas de desarrollo futuro, determinar las probabilidades de que un régimen de seguridad social nacional sea sostenible. Los estudios y los informes actuariales constituyen herramientas importantes para que los legisladores y los encargados de formular políticas nacionales puedan adoptar medidas tendientes al cumplimiento de las normas de la OIT relativas a la seguridad social; tales herramientas resultan útiles en caso de que las reformas tengan como finalidad mejorar los niveles de protección social, pero en caso contrario, pasan a ser vitales” (lo resaltado es del original).

De este modo, se aborda la necesidad de otorgar una protección pro-fondo conforme a la técnica actuarial, y sostenemos también, que debe permitir un espacio necesario para resolver las cuestiones relevantes sobre cambios a los los derechos económicos y sociales que concede. Se descarta, por completo, por el costo social que tiene, abordajes oportunistas y apresurados a las reformas. Pero debe quedar claro, que toda reforma legal al sistema de pensiones requiere, por un lado, del análisis sustancial de una perspectiva económica y financiera, también el otro lado inmediato, en las implicaciones sobre la protección de derechos presentes y futuros. Todo ello, es posible afirmar que se deriva del artículo 71.3, del Convenio N° 102, de la O.I.T., la cual se establece como la otra obligación internacional.

De todo lo anterior, concluimos que uno de los principales cometidos del citado artículo 71, es servir como un mecanismo de seguridad contra la erosión de los derechos prestacionales de la seguridad social, dentro del gran apartado de los derechos económicos, sociales y culturales, pues busca el equilibrio en un doble sentido: la protección en favor de quienes requieren de la asistencia cuando la contingencia prevista sucede, y la otra, servir de postulado en favor de la racionalidad de las medidas para asegurar perpetuidad del fondo sin incurrir en la arbitrariedad y desprotección. Deber quedar claro, como se ha afirmado en los órganos de control de derechos económicos, sociales y culturales en Europa, donde se afirma que tanto los recortes como los costos, deberían ser soportados de forma colectiva, de una forma equitativa por la sociedad para evitar primero la afectación de las personas de menores recursos, tomar en cuenta la situación económica del país y la clase de personas protegidas. En nuestro país, el artículo 73, de la Constitución Política, establece en buena medida la contribución forzosa del Estado, patronos y trabajadores, entre otras formas de financiación.

La observancia del artículo 71 asegura el propósito fundamental de los sistemas previsionales: otorgar derechos desde el punto de vista actuarial, y mantenerlos una vez concedidos como derechos adquiridos y situaciones jurídicas consolidadas, en especial cuando sean ingresados al patrimonio privado. En tales casos, debe adoptarse medidas para propiciar la suficiencia de recursos en favor del fondo de pensiones; es decir, a través de reformas legales para que pueda operar en los niveles óptimos de protección, con equilibrio en favor de la protección de la Seguridad Social. Lo mismo debería entenderse, desde el punto de vista de la concesión de derechos de que no debe estar desligado de los aspectos sustanciales de los Derechos Económicos, Sociales y Culturales, con el fin de prevenir de la privación y restricción innecesaria de los potenciales derechos, cuando de lo que se trata, es de ajustarlos, limitarlos e incluso ralentizar el otorgamiento de derechos prestacionales, pero cuando se sustente adecuadamente mediante estudios técnicos. Por supuesto, se debe insistir que esto no debe entenderse como un desmantelamiento del Estado Social de Derecho.

En virtud de los principios protectores pro-persona, que privilegian, prefieren y favorecen la aplicación de las normas que ofrezcan mayor protección a los derechos de la persona humana, sea en una norma legal, constitucional, o de los Derechos Humanos, estimamos que aconseja que una reforma al sistema de pensiones debería amparar a quienes estuvieran en mejores condiciones de cotización, de tiempo de servicio, y de edad, y con una base técnica suficiente que le concede estos factores. Una reforma al sistema de pensiones -aun aplicando el principio pro-fondo- sería irrazonable si no tomara en consideración estos factores. Ignorar cotizaciones concretas de las primas de un trabajador entregadas a un sistema de pensiones y de seguridad social concreto, de forma sostenida en el tiempo, generalmente, por un servicio de muy larga trayectoria, debe ser tratado por estos estudios actuariales. Solo en casos de descalabro económico nacional podrían tomarse medidas graves en contra de estos derechos en vías de consolidación.

Entonces, estimamos que el estudio actuarial no solo debe reflejar la condición económica del fondo, también debe contar con otra vertiente, como es el acomodamiento de los trabajadores que estuvieran en mejores condiciones de cotización, de tiempo de servicio, y de edad, y con una base técnica suficiente que le concede preeminencia al tiempo de la cotización, factor que tiene íntima relación con la parte económica del fondo. Creemos que esto acreciente y maximiza las posibilidades del reconocimiento de los derechos prestacionales, aún cuando no han llegado a ser aún derechos adquiridos.

Sobre la razonabilidad técnica de las normas aprobadas por el legislador, esta Sala ha indicado que: “En cuanto a lo primero, debe advertirse que en sentido estricto la razonabilidad equivale a justicia, así, por ejemplo, una ley que establezca prestaciones científicas o técnicamente disparatadas, sería una ley técnicamente irracional o irrazonable, y por ello, sería también jurídicamente irrazonable. En este sentido cabe advertir que no es lo mismo decir que un acto es razonable, a que un acto no es irrazonable, por cuanto la razonabilidad es un punto dentro de una franja de posibilidades u opciones, teniendo un límite hacia arriba y otro hacia abajo, fuera de los cuales la escogencia resulta irrazonable, en razón del exceso o por defecto, respectivamente” (Sentencia N° 1994-00486 de las 16:03 horas del 25 de enero de 1994). Entonces, no negamos que el legislador tiene amplias facultades y libertades en la conformación de la ley, de manera que la razonabilidad de una norma estaría dentro de un punto de mayor o menor intensidad que haría de un rango de regulación permisible o razonable constitucionalmente, por lo que, se debe concluir, también que lo que cae fuera de él, es inconstitucional por deficiencia o por exceso del estándar. Sostenemos que el artículo 71.3, de la Convención N° 102, de la O.I.T. da cobertura normativa a las expectativas legítimas, salvo que se estuviera frente a una debacle económica, para desconocer beneficios a quienes de otro modo si lo tendrían. Debemos recordar, que las decisiones estatales deben respeto a los derechos de seguridad social, y hace caer la disposición fuera de aquel rango de regulación permisible o razonable. Reducir lo establecido en el standard estudiado debe quedar claramente justificado, al tratarse de Derechos Humanos que, en efecto, estarían siendo negados a quienes estuvieran en mejores condiciones para obtener una jubilación o pensión por el paso del tiempo.

C.- El problema de las expectativas legítimas sin el empleo adecuado de un estudio actuarial.

1.- Más sobre la obligación internacional.

En Sentencia N° 2020-023789 de las 19:00 horas del 10 de diciembre de 2020, la Sala estableció, para las obligaciones internacionales, que:

“Ahora bien, de conformidad con el artículo 1°, de la Ley de la Jurisdicción Constitucional, corresponde a esta Sala garantizar además de la supremacía del Derecho Constitucional, también la del Derecho Internacional. De modo que, le corresponde a esta Sala no solo establecer la supremacía del derecho contenido en el Derecho de la Constitución cuando los tratados se refieren necesariamente a temas de derechos humanos, como también del Derecho Internacional, cuando por su interpretación y aplicación corresponde declarar su supremacía a las de las leyes, en virtud del artículo 7, de la Constitución Política. (…) En este sentido, desde su ratificación por nuestro país, las obligaciones internacionales que asume deberían estar produciendo efectos jurídicos duraderos, lo que debe ser práctica usual en aquellos tratados de Derechos Humanos que buscan elevar la dignidad humana, y cuyas obligaciones consisten en proteger, resguardar y hacer respetar esos derechos. En otros tratados también, cuando tienen como fin regular -jurídicamente- y erradicar otras prácticas nacionales que ponen en peligro esos derechos, especialmente si están vinculados a la vida, la salud humana y al medio ambiente. Este tipo de tratados también buscan el effet utile o lo que sería lo mismo lograr efectos duraderos, jurídicamente hablando, al tratarse de esfuerzos comunes y de cooperación internacional en una determinada área, porque adquieren especial interés internacional. Por ello, es lógico asociar los compromisos vinculantes a mecanismos de control de los objetivos pactados, porque no le son ajenos”.

La fuerza jurídica vinculante de las obligaciones internacionales en Costa Rica queda prístinamente revelada en la Sentencia N° 2016-006728 de las 9:05 horas del 18 de mayo de 2016, en cuanto establece que:

“El modo en que el Derecho internacional moldea al ordenamiento jurídico nacional lo decidió el constituyente cuando estableció la jerarquía normativa de las normas del Derecho internacional. Aunque pueden haber diferentes soluciones a la forma en que se relaciona el Derecho internacional público con el ordenamiento jurídico nacional, revela mucho la forma en que éste es incorporado, más aún el lugar que el constituyente originario como derivado le ubica en la jerarquía normativa del orden jurídico, con la intención de asignarle una determinada potencia y resistencia jurídica, énfasis agregado en algunos casos, para la convivencia del Derecho internacional con la norma nacional, que sería: supralegal donde el operador jurídico se enfrenta a una norma con fuerza y potencia en cascada que desplaza la norma inferior; o de igual rango, donde la autoridad judicial interpreta a la legislación internacional con una fuerza y potencia equivalente al de las leyes, operando los criterios de vigencia en el tiempo y el espacio, y que, para no generar conflictos innecesarios entre las normas, debe interpretar el Derecho internacional con el Derecho internacional consuetudinario. En estos casos, descarta la norma nacional o la interpreta conforme a la obligación internacional, salvo en aquellas jurisdicciones donde el legislador se atribuye su labor preeminente de dejarla expresamente sin efecto, bajo riesgo de violentar el orden internacional. En nuestro país el diseño que se le dio a la disposición constitucional fue pensado para que tuviera efectos muy concretos en el ordenamiento jurídico nacional. En nuestro caso, de origen monista, el Derecho internacional es incorporado una vez que se cumplan con los procedimientos legislativos para el dictado de una ley que lo recepta, con la aprobación legislativa, sigue la sanción y publicación, y finalmente el canje de notas diplomáticas o el depósito de los instrumentos para el perfeccionamiento de la obligación internacional -acto de ratificación-. La forma en que se impacta el derecho nacional lógicamente dependería de la naturaleza de los compromisos o las obligaciones internacionales pactadas entre los Estados o personas jurídicas con capacidad para actuar a nivel internacional. Por ejemplo, el objeto en los Tratados de Derechos Humanos es la persona humana, de ahí que le siguen mecanismos propios de interpretación como el principio pro homine, que, en el tanto se conjuga con el principio de supremacía constitucional, integra y supera el texto constitucional en cuanto produce una protección adicionada o incluso omitida por la norma constitucional, pero incrementando su legitimidad, en la dignidad humana (véase sentencia No. 1995-2313, entre otras)”.

El artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, forma parte del derecho internacional laboral, y este debe guiar la resolución de este asunto, toda vez que el canon internacional establece un estándar muy concreto, que se debe observar, pues el Estado: “deberá garantizar, cuando fuere oportuno, que los estudios y cálculos actuariales necesario relativos al equilibrio se establezcan periódicamente y, en todo caso, previamente a cualquier modificación de las prestaciones” (subrayado y lo resaltado no es del original). Estimamos que es obvio, que el cambio de las prestaciones incluye las actuales y las futuras. El legislador está en posibilidad, por la libertad de configuración, de establecer los nuevos términos amparados en los mencionados estudios, pero asegurando -salvo momentos de grave crisis y descalabros económicos- mecanismos que guarden, aquellas personas en mayor posición de expectativa, las que estarían en transición por una cuestión de equidad en la interpretación, la que debe ser también justa y balanceada.

La obligación internacional positiva aceptada por los Estados impone tanto la obligación de hacer determinadas cosas, como también -de no hacer- en contra de los derechos sin una justificación razonable para no vulnerar la norma. En el primero de los supuestos, constatando el desequilibrio de los fondos de pensiones como ocurrió con el Poder Judicial, donde no hay duda que el Estado requiere aprobar las normas y políticas adecuadas, para salvaguardar de las prestaciones sociales. Pero, en tal arista, debemos estar claros que cuando se toman decisiones que parten aguas en un Estado Social de Derecho, siempre se tienen obligaciones de hacer como de no hacer respecto de los derechos que quedan en un período de transición. En tales casos, es válido tomar de referencia la edad, el tiempo de cotizaciones y servicio, siempre en aras de mantener un equilibrio de un fondo, sin dejar de considerar derechos que bien pudieron protegerse por estar en transición. De este modo, insistimos que corresponde al Estado velar doblemente por la protección de quienes cotizan para las prestaciones futuras, y con mayor intensidad, acordar el amparo de los intereses legítimos de quienes gradualmente están en cercanía con el cumplimiento de los requisitos de tiempo y servicio, y en un grado mayor, a quienes estarían en transición. La norma transitoria debe adecuar estos factores en aras de proteger estos derechos en consolidación.

Creemos que el Convenio N° 102, de la Organización Internacional del Trabajo, no autoriza la toma de decisiones ayunas de razonabilidad técnica, al contrario, impone al responsable de los fondos -el Estado- los principios de razonabilidad y proporcionalidad, previendo que toda decisión se haga más difícil de alcanzar sin un sustento técnico, porque con ello lesiona los derechos sustantivos a una prestación futura e intergeneracional de quien ha aportado más. La norma transitoria debe estar adecuada a los derechos de quienes estuvieran en el fondo amparando un conjunto de derechos sustantivos por el tiempo de servicio, edad y cotizaciones, todo ello visto en conjunto de manera justa y equitativa, con un interés legítimo que indudablemente es de mayor intensidad.

La pregunta que cabe aquí, es si el legislador puede sustentar la reforma, sin consideración alguna a las consecuencias que puede generar sobre todas las personas afectadas, al agravar los derechos sustantivos. Estimamos que la respuesta debe ser negativa frente a la obligación internacional.

En el expediente legislativo (folio 4164), la diputada Natalia Díaz Quintana manifestó que:

“Otro tema importante en este texto que estamos dictaminando el día de hoy, que creo que también es parte de las reformas trascendentales del mismo, tienen que ver con el transitorio; un transitorio que se manejó de forma responsable en la comisión; un transitorio que inclusive lo que permite es que los servidores serviciales (sic) y les leo textualmente, es el transitorio sexto, que cumplan con los ….

La Procuraduría nos había dicho inclusive que este transitorio no era necesario, que inclusive la norma o la ley podía regir inmediatamente para la aplicación del mismo; sin embargo, también por fallas (sic) de la Sala Constitucional con respecto al régimen de IVM, donde se establecen dieciocho meses de transitorio, tomamos esta consideración para establecerlo y entonces darle derecho aquellos que estén a dieciocho meses de pensiones que se acojan a la normativa vigente y no a la ley que estamos aprobando, para también respetar estos beneficios.

Recordemos que las pensiones no son derechos adquiridos, sino es una expectativa de derecho, entonces por ese motivo se podía eliminar el transitorio; sin embargo lo dejamos en el proyecto de ley para abrir esa ventana de dieciocho meses aquellos que deseen pensionarse o que estén a punto de pensionarse en estos dieciocho meses y que por lo tanto puedan acogerse a la normativa actual”.

En este punto, hay que establecer que la obligación internacional del artículo 71.3., del Convenio N° 102, de la Organización Internacional del Trabajo, tiene un carácter jurídico, por ser un instrumento que trae consecuencias por su jerarquía normativa en el orden nacional -incluido el legislador y juez- en la medida que obliga a ajustar la voluntad otorgada entre sujetos de derecho internacional, y como tales, tiene que ser aplicado de conformidad con el principio pacta sunt servanda y de buena fe. Con este contenido jurídico, por consecuencia, es vinculante para el Estado costarricense, que adquiere el carácter de piso básico de la obligación internacional, que daría legitimidad al sustentarse en actuaciones técnicamente equilibradas, ordenadas por normas de mayor rango y jerarquía, que obliga en un primer orden que los ajustes no afecten negativamente a los fondos de pensiones, y que los derechos no sean abusados en el nombre del equilibrio del fondo, sin una justificación razonable en dificultades económicas que pueden ser corregidas en el futuro. En tal sentido, consideramos que es claro que todo mejoramiento es preferido. La legitimidad que da el instrumento internacional no es solo para el tema de los recursos, sino que, debe ser extensivo para el otorgamiento y el respeto de los derechos en transición. No tendría sentido que la actuación estuviera basada únicamente en consideraciones matemáticas sin considerar los Derechos Económicos, Sociales y Culturales.

Por Sentencia N° 2018-000230 de las 10:40 horas del 10 de enero de 2018, la Sala estableció que:

“… el legislador cuenta con discrecionalidad, en el marco de su derecho a la libre configuración, para establecer los requisitos de la actividad, a fin de proteger la salud de las personas, sin que deba justificar cada decisión mediante un estudio técnico, salvo cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige”.

En este sentido, los estudios actuariales finales procuraron un transitorio de veinticuatro meses para la consolidación de los derechos en transición. Así, estimamos que es obligado concluir, que los criterios técnicos actuariales son el instrumento objetivo para sustentar las reformas de los fondos de pensiones, las que deben justificar las modificaciones y limitaciones a las prestaciones. También, el tratamiento transicional después de la entrada en vigencia de la reforma. Pero, una modificación que hace más restrictiva una norma transitoria, debe estar basada en una necesidad debidamente constatada.

La mayoría de la Sala hace referencia a las consideraciones finales del estudio actuarial denominado “Producto 6 informe final: “Recopilación e informe final: Conclusiones y Recomendaciones” (Versión Final)”, el equipo actuarial discute algunos puntos relevantes de los informes, e incluyen las siguientes aseveraciones de los cálculos actuariales prospectivos a cien años realizados al Fondo de Jubilaciones y Pensiones del Poder Judicial:

“b. Sobre el “transitorio” que permitiría a las personas que se jubilarían en un plazo de dos años y la posibilidad de ampliar ese transitorio para las personas que se jubilarían en un plazo de cinco años.

Un aumento en el “transitorio” pospone los ajustes y por lo tanto afecta negativamente los ingresos del Fondo. Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo.

Por otra parte, una decisión en esta dirección puede inducir a los administradores y agentes políticos a realizar gestiones para incluir a grupos sucesivamente más numerosos, de forma que al final un “transitorio” de dos años terminaría transformándose en un transitorio de cinco, seis o incluso más años.

Finalmente, la ampliación del transitorio pospone parte de los ajustes, por lo que análisis de rentabilidad y solvencia del Fondo pueden generar la impresión de que los ajustes que sí se realizaron no surtieron efecto” (página 73 del informe).

Es importante mencionar, que de los últimos Marcos Normativos analizados IICE3 e IICE4, se consideraron solventes en las pruebas que se les realizaron; es decir, en los escenarios “base o intermedio” y “optimista”. Más aún, se refieren también al Producto 5, que “resultaron solventes tanto si se incluyen como si se excluyen los ingresos adicionales procedentes de procesos abandonados. Estos nuevos Marcos Normativos propuestos resultan autosuficientes y su funcionamiento no requiere imponer cargas al Estado o a los costarricenses”. Todo lo anterior, nos permite concluir que es claro que dentro de la solvencia actuarial que fue presentada a la Asamblea Legislativa, ya estaba “presupuestada” o “contenida” la normativa transitoria por dos años (veinticuatro meses).

La legislación debe mantener los ajustes y la adecuación de las modificaciones a las circunstancias individuales de las personas, desde los trabajadores de recién ingreso, quienes empiezan hasta alcanzar el periodo de pertenencia y que se transforma de un interés general a una expectativa legitima concreta por edad, tiempo de cotización y servicio de las personas trabajadoras, mientras pertenezcan al régimen. Los regímenes de pensiones son de larga duración, y que durante dicho periodo de pertenencia se incrementará más ese interés, a la de una expectativa legítima que conduce a la declaratoria del derecho.

No todas las reformas que resguarden el equilibrio de los fondos de pensiones son iguales. Estimamos que el resguardo de los recursos públicos en pensiones con cargo directo al presupuesto nacional no puede comportarse de la misma manera que con aquellos con fondos aportados por las cotizaciones de los trabajadores en regímenes de pensiones que reciben el aporte patronal y del Estado, y que valga decir, nacen de las obligaciones internacionales adquiridas con la Organización Internacional del Trabajo. Sin embargo, en ambas, debe existir el aporte forzoso del trabajador, el patronal y principalmente del Estado, cuya participación es parte de la necesidad de que haga sus aportes en nombre de la colectividad nacional, como sí lo hizo en el caso de las pensiones con cargo directo al presupuesto nacional y su transitorio de cinco años.

La Recomendación sobre los Pisos de Protección Social, 2012 (N° 202), que recoge lo relacionado a los principios relativos a la seguridad social, mantiene una íntima relación con el Convenio N° 102. En él, define a los pisos de protección social como los “conjuntos de garantías básicas de seguridad social definidos a nivel nacional” (punto I.2), pero además en el I.3, recoge los principios sobre adecuación y previsibilidad de las prestaciones (c); respetar los derechos y la dignidad de las personas cubiertas por las garantías de seguridad social (f); gestión financiera y administración sanas, responsables y transparentes (j); sostenibilidad financiera, fiscal y económica, teniendo debidamente en cuenta la justicia social y la equidad (k). Además de otros principios enunciados, es claro que debe existir siempre un equilibrio racional en lo que se refiere a los costos y beneficios a corto y largo plazo. Para llegar a ello, estimamos que se quiere de los estudios actuariales que permitan garantizar que las reformas y ajustes que se requieran, sean necesarias, justificadas y que respondan a criterios técnicos. De ahí que, creemos que es importante la transparencia, consulta y dialogo social en cualquier caso, pero más cuando se trata de regímenes administrados directa o indirectamente por el Estado, en el tanto están involucradas las organizaciones de los empleadores y trabajadores. En este sentido, el Estudio General relativo a los instrumentos de la seguridad social de la Organización Internacional del Trabajo, citada con anterioridad, menciona que se debería esperar que la confianza que se deposita en los estudios actuariales debe ser amplia y difundida, especialmente entre los tomadores de decisión, de modo que “…a los gobiernos les resultará más fácil obtener el apoyo de los interlocutores sociales y lograr un consenso sobre los cambios que deben realizarse, si dichos cambios se basan en recomendaciones objetivas formuladas por un actuario independiente” (el resaltado es agregado).

No hay duda, también, que el reconocimiento de los derechos en vías de constitución y transición debería estar estrechamente ligado a lo anterior, basado en la justicia social y equidad, por el costo social no económico que tiene, y porque ya está reconocido por los estudios técnicos al fondo de interés, cuyos estudios son establecidos por el mismo ordenamiento jurídico internacional.

2.- Derechos de transición en el corpus iuris nacional e internacional.

A partir de este punto, es necesario que examinemos la existencia de instituciones jurídicas desarrolladas por la jurisprudencia de los tribunales de justicia en nuestro país, incluida la misma Sala Constitucional, que responden a la racionalización de la aplicación de los cambios de derecho, basadas en consideraciones de equidad y justicia, especialmente cuando tiene efectos injustos y arbitrarios sobre las personas.

La doctrina de la confianza legítima, del estoppel, y la doctrina de los actos propios de la Administración Pública, responden todos a la protección y construcción del derecho como un verdadero valladar en contra de la injusticia y la arbitrariedad, y los tribunales se convierten en un vertebrador de la justicia en la sociedad.

Al producirse las reformas, debe existir un estándar mínimo que garantice un ambiente de predictibilidad que no es más que también una consecuencia del principio democrático que obliga a tomar decisiones racionales, además de la publicidad de los actos públicos válidos, y de su eficacia. De la publicidad deriva la obligación de los particulares de ajustarse a las normas y disposiciones emitidas por las autoridades públicas, por haber cumplido los requisitos formales y materiales que permiten considerarlas válidas, admitiendo los tribunales -también- aquellos en apariencia válidos, y eficaces cuando reciben su publicidad de forma oficial.

A nivel de la Unión Europea, el principio de la confianza legítima se deriva del principio general de seguridad jurídica (derivado todo del principio de legalidad). Es el reconocimiento de que esta institución jurídica proviene de las leyes nacionales. Se entiende como la obligación de las autoridades de estar no solo constreñidos por lo que la ley expresamente dispone, sino que también por sus promesas y por las elevadas expectativas que crea. En tal sentido, se tiene confianza legítima cuando se actúan con un componente de buena fe, pues a las personas se les debe proteger sus expectativas legítimas, porque actúan sobre la base de los textos de las leyes, y no deben ver frustradas sus expectativas legítimas creadas con base en ellas.

Por ejemplo, se reconoció que las medidas comunitarias que incentivaron dejar de producir lácteos, y cuyos productores se sometieron voluntariamente a ese aplazamiento en Europa, podían esperar que una vez superado el período, dejarían de tener efecto y podrían volver a ejercer la actividad económica que suspendieron. En Sentencia de la Tribunal de Justicia de la Unión Europea del 28 de abril de 1988, Mulder v. Minister van Landbouw en Visserij, estableció que:

“26 Contrariamente a las afirmaciones de la Comisión, tal exclusión total y permanente, en tanto permanezca en aplicación de la normativa en materia de tasa suplementaria, que tiene como efecto impedir a los productores afectados reanudar la comercialización de la leche al término del período de cinco años, no era previsible para dichos productores en el momento en que asumían, temporalmente, el compromiso de no suministrar leche. En efecto, ni las disposiciones ni los considerandos del Reglamento n° 1078/77 ponen de manifiesto que el compromiso de no comercialización contraído en virtud de este Reglamento podría suponer a su vencimiento, la imposibilidad de reanudar la actividad en cuestión. Tal efecto vulnera, por consiguiente, la confianza legítima que los productores podían tener en el carácter limitado de los efectos del régimen al cual se sometían.

27 De ello se sigue que la normativa en materia de tasa suplementaria sobre la leche fue dictada en violación del principio de confianza legítima. Dado que esta normativa debe ser declaradas inválida por esta razón, no ha lugar a examinar los demás motivos expuestos en el curso del procedimiento contra su validez”.

Por su parte, ese carácter pretoriano que se ha difundido en muchos países, también tiene, desde el punto vista de la jurisprudencia nacional, aplicación en la Sala Constitucional. Esta ha establecido, en la Sentencia N° 2016-008000 de las 11:52 horas del 10 de junio de 2016, esa doctrina de la confianza legítima. En la decisión se indica que:

“Ahora bien, estamos ante un principio de origen jurisprudencial evidentemente ligado a cuestiones de equidad, motivo por el que su aplicación debe ser analizada en cada caso concreto. Recordemos que el mismo ha sido concebido como una reacción del juez para resguardar la confianza del Administrado, cuando la Administración lo sorprende con un cambio inesperado en su proceder. Como resolvió el Tribunal Supremo de España (Sala 3) en sentencia de 17 de mayo de 2013: “En definitiva, como señala la STJCE de 12-5-1998, para anular un acto irregular recaído en el seno del derecho nacional de un Estado, el Juez deberá ponderar los intereses en conflicto en cada caso, y resolver dando primacía, bien al principio de legalidad, revocando el acto, lo que demanda el interés general, bien dando protección a la confianza legítima, en defensa del interés individual”.

Atinente a los alcances del principio, el Tribunal Supremo de España, en sus votos de 21 de febrero de 2006 (RC 5959/2001) y 15 de diciembre de 2007 (RC 1830/2005), ha concluido que “la virtualidad del principio invocado puede suponer la anulación de un acto o norma y, cuando menos, obliga a responder, en el marco comunitario de la alteración (sin conocimiento anticipado, sin medidas transitorias suficientes para que los sujetos puedan acomodar su conducta y proporcionadas al interés público en juego, y sin las debidas medidas correctoras o compensatorias) de las circunstancias habituales y estables, generadoras de esperanzas fundadas de mantenimiento”.

En esas mismas sentencias, respecto de los límites al principio, ha señalado que:

“Sin embargo, el principio de confianza legítima no garantiza la perpetuación de la situación existente; la cual puede ser modificada en el marco de la facultad de apreciación de las instituciones y poderes públicos para imponer nuevas regulaciones apreciando las necesidades del interés general". Por otra parte, en la STS de 1-2-99 Az 1633, se recuerda que "este principio no puede invocarse para crear, mantener o extender, en el ámbito del Derecho público, situaciones contrarias al ordenamiento jurídico, o cuando del acto precedente resulta una contradicción con el fin o interés tutelado por una norma jurídica que, por su naturaleza, no es susceptible de amparar una conducta discrecional por la Administración que suponga el reconocimiento de unos derechos y/u obligaciones que dimanen de actos propios de la misma. O, dicho en otros términos, la doctrina invocada de los «actos propios» sin la limitación que acaba de exponerse podría introducir en el ámbito de las relaciones de Derecho público el principio de la autonomía de la voluntad como método ordenador de materias reguladas por normas de naturaleza imperativa, en las que prevalece el interés público salvaguardado por el principio de legalidad; principio que resultaría conculcado si se diera validez a una actuación de la Administración contraria al ordenamiento jurídico por el solo hecho de que así se ha decidido por la Administración o porque responde a un precedente de ésta. Una cosa es la irrevocabilidad de los propios actos declarativos de derechos fuera de los cauces de revisión establecidos en la Ley ( arts. 109 y 110 de la Ley de Procedimiento Administrativo de 1958 , 102 y 103 de la Ley de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo Común, Ley 30/1992 [RCL 1992 \2512, 2775 y RCL 1993\246], modificada por Ley 4/1999 [RCL 1999\114]), y otra el respeto a la confianza legítima generada por actuación propia que necesariamente ha de proyectarse al ámbito de la discrecionalidad o de la autonomía, no al de los aspectos reglados o exigencias normativas frente a las que, en el Derecho Administrativo, no puede prevalecer lo resuelto en acto o en precedente que fuera contrario a aquéllos".

En resumen, el principio de confianza legítima descansa sobre la base de que el ciudadano asume un comportamiento confiando en que actúa de manera correcta, toda vez que la conducta constante, estable y a lo largo del tiempo de la Administración le genera razonablemente tal expectativa; dicho de otra forma, la Administración ha emitido signos externos que han venido a orientar al ciudadano hacia una cierta conducta y le han hecho confiar de buena fe en que tal situación persistirá. Como señala Meza Valencia (2013), “la confianza del particular surge con ocasión del nacimiento en el mundo jurídico de una palabra dada o promesa de la administración, pero se fortalece y arraiga con la cadena de conductas posteriores asumidas por la administración, toda vez que estas vayan orientadas a fortalecer y desarrollar la palabra emitida previamente. Sin la existencia de dichos actos posteriores armónicos y coherentes, la promesa dada previamente pierde su vocación de consolidación de la confianza legítima”.

Lo anterior no implica que la Administración se encuentre conminada a mantener irreversible un acto contrario a la normativa vigente. Por el contrario, en el ejercicio de sus potestades públicas, la Administración bien puede remediar la mala aplicación de la normativa o imponer nuevas regulaciones apreciando las necesidades del interés general. Empero, para ello el Estado debe respetar la doctrina de los actos propios, o bien -sobre todo cuando se trata de nuevas medidas o de una decisión de improviso- proceder de manera razonable, es decir, con la debida anticipación comunicar su nueva actuación, con medidas transitorias suficientes para que los sujetos puedan acomodar su conducta y proporcionadas al interés público en juego, sin excluir otro tipo de disposiciones correctoras o compensatorias de las circunstancias habituales y estables, que le forjen al ciudadano esperanzas fundadas del mantenimiento de determinada situación.

La jurisprudencia constitucional costarricense ya ha reconocido este principio, como se advierte en los siguientes antecedentes:

"(...) Sobre el desarrollo de este principio y su profunda raigambre constitucional, la doctrina nacional ha manifestado lo siguiente: "Este principio surge en la República Federal de Alemania y, luego, es recogido por la jurisprudencia del Tribunal de Justicia de la Comunidad Europea, para definir una situación digna de ser amparada al haber sido violada la confianza puesta en la acción de la Administración Pública. El Tribunal Supremo Español, en su sentencia del 1º de febrero de 1990, consideró que este principio ha de ser aplicado, no tan sólo cuando se produzca cualquier tipo de convicción psicológica en el particular beneficiado, sino más bien cuanto se basa en signos externos producidos por la Administración lo suficientemente concluyentes para que le induzcan razonablemente a confiar en la legalidad de la actuación administrativa, unido a que, dada la ponderación de intereses en juego interés individual e interés general- la revocación o dejación sin efectos del acto, hace crecer en el patrimonio del beneficiado que confió razonablemente en dicha situación administrativa, unos perjuicios que no tiene por qué soportar derivados de unos gastos o inversiones que solo pueden serle restituidos con graves perjuicios en su patrimonio. En cuanto a los requisitos del principio de confianza legítima, la doctrina española, siguiendo la jurisprudencia del Tribunal Supremo Español, ha establecido los siguientes: Debe mediar un acto 1) de la administración lo suficientemente concluyente para provocar en el afectado uno de los tres tipos siguientes de confianza: a) confianza del afectado en que la Administración Pública actúa correctamente; b) confianza del afectado en que es lícita la conducta que mantiene en su relación con la Administración Pública, al existir un eventual error de prohibición; c) confianza del afectado en que sus expectativas como interesado son razonables. 2) La Administración Pública debe provocar signos (actos o hechos) externos que, incluso, sin necesidad de ser jurídicamente vinculantes, orienten al administrado hacia una determinada conducta que de no ser por la apariencia de legalidad creada no hubiere efectuado. 3) Un acto de la Administración Pública (v. gr. un reglamento que reconoce o constituye una situación jurídica individualizada en cuya estabilidad confía el administrado. 4) La causa idónea para provocar la confianza legítima del afectado no puede provocarse por la mera negligencia, tolerancia, ignorancia de la Administración Pública o lo irracional de lo pretendido por el administrado. 5) El administrado debe cumplir los deberes y obligaciones que le competen. El quebranto del principio de la confianza legítima provoca, indudablemente, varios efectos jurídicos de importancia, veamos: 1) Actúa como límite al ejercicio de las potestades discrecionales. 2) Opera como una garantía del principio de igualdad. 3) Provoca el deber de la Administración pública de resarcir la frustración de las expectativas legítimas y los derechos subjetivos lesionados. El principio de la confianza legítima, junto con el de la buena fe en las relaciones jurídico-administrativas, dimana del principio de igualdad jurídica, esto es, la certidumbre de las relaciones con los poderes públicos, saber, el administrado, a qué atenerse con éstos, quienes deben evitar las situaciones objetivamente confusas y mantener las situaciones jurídicas aunque no sean absolutamente conformes con el ordenamiento jurídico. Este principio, se concreta, entre otros supuestos, con la teoría de la intangibilidad de los actos propios declarativos de derechos para el administrado, la limitación de los actos de gravamen y la irretroactividad. Encuentra aplicación, también, cuando una administración pública dicta y realiza una serie de actos y de actuaciones, que aunque jurídicamente incorrectas, generan una serie de expectativas en el administrado creyendo que ostenta una situación jurídica conforme con el ordenamiento jurídico (...)" (ver sentencia N° 2010-010171 de las 9:58 horas del 11 de junio de 2010)” (lo resaltado es del original).

En otra sentencia, la Sala resuelve un recurso de amparo de una persona de sesenta y un años de edad que había iniciado, desde hacía muchos años, labores en el Ministerio de Hacienda, que debido a modificaciones y nuevos requisitos para el servicio de limpieza -a través del outsourcing- quedó excluido de continuar con sus labores en el Ministerio de Hacienda, perjudicando su situación individual y concreta, y su oportunidad de adquirir una pensión. Además, se toma en cuenta que es una persona que forma parte de la población discapacitada, y que, en su último contrato laboral, quedó excluido por la instauración del requisito académico de tener la escuela primaria concluida. Esta Sala resolvió el caso, de la siguiente manera:

“Ante el anterior panorama, se puede observar como la Administración Pública generó una confianza del afectado en que esta actuaba correctamente, durante todo ese tiempo laborado, generando expectativas al amparado, consideradas razonables, ya que desde el año 1996 al 2017 el tutelado laboró para todas las empresas de servicios de limpieza que fueron adjudicadas por el Ministerio de Hacienda, convirtiéndose esto en una práctica común, donde todas las empresas adjudicadas lo contrataban para mantenerlo realizando esa labor de limpieza, con los mismos requisitos durante 30 años como se señaló. Si bien el cambio en los requisitos del cartel se sustenta en los requerimientos mínimos para el uso de productos y actividades propias de la labor, el amparado ha demostrado durante sus casi treinta años que es una persona idónea y que puede manejar bien las labores del puesto. Sobre la actuación de la administración, se puede demostrar que esta ha estado representándole estabilidad y continuidad en su relación laboral al amparado, pues no se acredita ninguna situación de rechazo o queja ante las empresas adjudicadas. Considerando que el petente es una persona con capacidades especiales y cerca de su adultez mayor, se puede afirmar que el cambio de requisito para el puesto le ocasionaría un agravio a su condición, por la dificultad que se menciona, para conseguir empleo, debido a su discapacidad y la edad, y además ahora que le faltan pocas cuotas para poder pensionarse. En virtud de lo anterior, esta Sala considera, que en el caso particular del amparado, la administración contribuyó a constituir una situación de confianza y respaldo, por los requisitos exigidos a las empresas contratadas, para realizar sus funciones, en cuya estabilidad confiaba el tutelado, por lo cual corresponde declarar con lugar este recurso en los términos que se disponen en el por tanto de esta sentencia” (2018-02910 de las 9:15 horas del 23 de febrero de 2018).

En otra Sentencia, N° 2023-014857 de las 13:11 horas del 21 de junio de 2023, esta Sala acordó que era necesario sostener en el tiempo ciertas ventajas económicas obtenidas en una Convención Colectiva, dado el comportamiento omisivo de una institución pública, y que no fue sino hasta el final de un proceso laboral, que se quiso corregir la situación económica, pese a la existencia de cosa juzgada. En la resolución, se indicó que:

“Se debe reiterar que, en la Sentencia N° 2021-001157 de las 12:42 horas del 20 de enero de 2021, se conoció otro asunto similar que abordó la razonabilidad de una norma convencional, pero como se indicó anteriormente, fue denunciada oportunamente. Ahora, en este caso que nos ocupa, la conducta omisiva hizo consolidar una situación que ahora sería impropio de esta Sala pronunciarse, con fundamento en la doctrina del “estoppel”. Por Sentencia N° 1992-00746 a las 11:20 horas del trece de marzo de 1992, esta Sala lo define con lo siguiente: “Esta posición es conocida en la doctrina como el estoppel administrativo que impide al interesado beneficiarse de su propio dolo o errores o de la administración y luego acusar la nulidad de los actos por lo que se benefició”. En este sentido, según lo anterior, se debe una protección a la parte que se benefició de buena fe procesal y en resguardo de los valores de la confiabilidad del tráfico jurídico, que en este caso serían la seguridad jurídica y la cosa juzgada”.

Como es claro de todo lo anterior, la Sala, en efecto, ha observado, a través de diferentes instituciones jurídicas, el principio de la seguridad jurídica, especialmente su derivación, el principio de la confianza legítima, como un mecanismo de conservación de los efectos continuados de las normas y actos administrativos como una extensión de derechos subjetivos que debieron protegerse, pese a la derogación normativa cuando el particular haya depositado su confianza en las actuaciones públicas. Estimamos que el comportamiento individual de los trabajadores del Poder Judicial se ha ajustado a las normas que les elevaron expectativas legítimas, las que se han generado con un grado de confiabilidad y de buena fe, en su régimen de pensiones cotizando y trabajando lealmente en el Poder Judicial. Se reconoce, entonces, que cuando hay cambios normativos “el Estado debe respetar la doctrina de los actos propios, o bien -sobre todo cuando se trata de nuevas medidas o de una decisión de improviso- proceder de manera razonable, es decir, con la debida anticipación comunicar su nueva actuación, con medidas transitorias suficientes para que los sujetos puedan acomodar su conducta y proporcionadas al interés público en juego, sin excluir otro tipo de disposiciones correctoras o compensatorias de las circunstancias habituales y estables, que le forjen al ciudadano esperanzas fundadas del mantenimiento de determinada situación”. Entonces, creemos que es evidente, que se debe preferir opciones que sean acordes a los principios protectores de la persona humana en el campo de los derechos humanos, por la necesidad intrínseca y respeto de la dignidad de las personas, especialmente aquellas que han tenido mayor tiempo de estar sujetos a un régimen jurídico concreto, que no había variado por más de veinte o treinta años, y que, en ese campo, por razones de equidad, justicia y de seguridad jurídica, debieron considerarse disposiciones transitorias correctoras o compensatorias adecuadas a sus situaciones concretas, y acorde a la intensidad de las expectativas legítimas que tuvieran.

D.- Conclusión.

Como corolario de todo lo anterior, estimamos que el Estado, en el ejercicio y ponderación de la toma de sus decisiones sobre fondos de jubilación, debe ser doble para resguardar: a) el equilibrio económico del fondo, con fundamentos en los aspectos demográficos, mortalidad de la población, y situación económica del país, entre otros elementos objetivos; y también, b) los derechos e intereses legítimos de sus destinatarios. Es claro, que hay que someter periódicamente los regímenes de pensiones a los respectivos estudios actuariales, y salvo descalabros económicos devastadores en una economía es que se podrían tomar medidas que afecten severamente a todas las personas que formalmente no han alcanzado ese derecho. Pero, cuando no es esta situación, el Estado y los fondos que administran los regímenes de pensiones, deben procurar soluciones que no anatematicen a los trabajadores en las puertas de la declaratoria del derecho. Consideramos que en esta materia, no hay simples expectativas de derecho, en atención a una relación de larga duración (muchas veces de toda una vida) que incluye el tiempo servido y la cotización, pero al amparo de las seguridades y garantías de un régimen de empleo público, que en este caso se corresponde a un Poder de la República; en consecuencia, se debería definir para los trabajadores una forma que gradúe los derechos de quienes tienen expectativas legítimas por los años de servicio prestado y lo cotizado al correspondiente fondo de pensiones y jubilaciones.

Los estudios actuariales realizados por el IICE habían contemplado un transitorio de dos años (veinticuatro meses) como parte del análisis de las medidas correctivas del fondo de pensiones. Sin embargo, es claro que dicha información no tuvo consecuencia en el Transitorio VI finalmente aprobado de dieciocho meses, al no considerar la integralidad de la información económica y de los derechos en favor de aquellas personas servidoras que quedarían al descubierto, y a quienes, por consecuencia, no se le otorgó protección alguna pese a estar cuantificados y contar con derechos en vías de consolidación. Si bien, se nos podría argumentar en contra de nuestra conclusión, que siempre quedarán personas excluidas con cualquier fijación temporal que hiciere una disposición transitoria en esta materia, es claro traer el criterio de la mayoría en la Sentencia N° 2021-11957 (antes citada), en cuanto señaló que: “… la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas”, interpretación que es correcta y es una obligación que estaría a cargo de la Asamblea Legislativa. El reconocimiento de los derechos prestacionales analizados, a quienes no estaban aún con derechos consolidados en los estudios actuariales, que vale decir, se calculan a cien años, pudo apenas haberse constituido en un factor de distorsión actuarial entre el tiempo en que fueron finalizados los estudios y la aprobación de la reforma, pero que no hubiera descarrilado los cálculos de solvencia o insolvencia realizados, sumadas las otras medidas introducidas, y que, se hubieran podido corregir administrativamente durante tal largo plazo.

De ahí que, estimamos que resulta inconstitucional por omisión, la fijación de un plazo de dieciocho meses, porque con esa medida estatal fue más restrictiva y desfasada del estudio actuarial, que había ponderado un plazo de veinticuatro meses, con lo que se había medido el grado y adecuación de su impacto económico sobre las prestaciones futuras concedidas, frente a la afectación de los derechos en transición.

Consideramos, que el transitorio por dos años que se había establecido era la forma de establecer protección a los derechos prestacionales en vías de consolidación, el cual fue variado por el legislador (como se ilustró con la intervención de la diputada Díaz Quintana). El presidente de la Asamblea Legislativa es enfático en señalar que se utilizó el criterio discrecional del legislador. En este sentido, invoca una prerrogativa que implicaría una simple adecuación de los actos parlamentarios a la libertad de configuración. Por ello, si solo se usó esta prerrogativa, y no hubo otro criterio de fondo, contrastado con el artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, es claro que el producto es ilegítimo al quedarse corto del estándar técnico previamente establecido, y dado que la Sala ha sostenido que la libertad de configuración del legislador se encuentra limitada al cumplimiento de los estudios técnicos que exija una disposición concreta, sea en temas ambientales, o según la materia que se trate, como es la obligación internacional que nos ocupa.

El derecho sustantivo, además de requerir un sustento razonable debe resguardarse con estudios técnicos que deberán velar por un equilibrio financiero, también, al hacerlo, debía proteger en la medida posible las prestaciones en transición. Además, hay que reconocer que existe una relación de sujeción especial y una verdadera relación jurídica de larga duración con un plan básico de pensiones para los funcionarios judiciales, con implicaciones económicas como podría ser la de los trabajadores que pudieran estar en situaciones amparables, quienes se mantuvieron en sus puestos visualizando planes y proyectos de vida, con ciertas condiciones de salud, y es lógico, pensar que estaría dentro de sus consideraciones, las mejores condiciones de seguridad social y el derecho a la jubilación, todos en un contexto desde el día uno en que se inicia la labor con el Poder Judicial.

Por todo ello, se puede observar una actuación irregular reclamado por los accionantes, que hacen que los medios utilizados y los fines, no quedaran bien cristalizados, especialmente, en tratándose del caso de la desmejora de derechos.

La posición de minoría no debe quedar en este punto en una decisión en abstracto, pues evidentemente, se estaría reconociendo que sí hay afectación a una obligación internacional contenida en el artículo 71.3, del Convenio N° 102, de la Organización Internacional del Trabajo, así como los derechos económicos, sociales y culturales de los trabajadores. Por ello concluimos con una sentencia estimatoria por la omisión inconstitucional e inconvencional de la norma, por la insuficiencia parcial en la cobertura de la disposición aprobada por la Asamblea Legislativa, en cuanto fijó dieciocho meses como período transitorio; y, por la insuficiente cobertura pese al estudio actuarial que permitía establecer con claridad un plazo mayor que podía sustentarse técnicamente, que reflejara las necesidades de un equilibrio financiero razonable del fondo, con el de otorgar los derechos fundamentales de los trabajadores expectantes, respetando las expectativas legitimas de los servidores judiciales. En conclusión, la norma transitoria es omisa -inconstitucionalmente- al haberse apartado de los antecedentes actuariales que establecían veinticuatro meses de transitorio, cuyo sustento actuarial fue debidamente establecido.

En consecuencia de todo lo anterior, de conformidad con los artículos 89 y 91, de la Ley de la Jurisdicción Constitucional, dimensionamos esta declaratoria para graduar y dimensionar los efectos retroactivos de esta declaratoria, para establecer que los funcionarios judiciales conservan los derechos a la jubilación y/o pensión conforme al texto anterior a la reforma operada por Ley N° 9544 del 24 de abril de 2018, dentro de los veinticuatro meses posteriores a su promulgación. - Luis Fdo. Salazar Alvarado Ana María Picado Brenes [[]1] CIDH. Informe No. 38/09, Caso No. 12.670. Admisibilidad y Fondo Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras contra Perú, del 27 de marzo de 2009.

[1] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-743320 [2] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1033446 [3] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1100699 [[][1] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-83512 [[][2] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-855812 [[][3] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1070372 [[][4] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-146437 [[][5] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-551124 [[][6] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-743319 [[][7] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1170949 [[][8] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1116679 [[][9] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-469338 [[][10] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-551124 [[][11] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-577456 [[][12] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-750387 [[][13] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-858306 [[][14] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81978 [[][15] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-743320 [[][16] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1070372 [[][17] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1100699 [[][18] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1100702 [[][19] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-994090 [[]20] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-80098 https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-121546 [4] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-141162 [[]22]Acción de inconstitucionalidad contra Ley que establece contribución especial de los regímenes de pensiones. https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1027847 [[][23] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-80098 [[][24] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-82623 [[][25] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-193759 [[][26] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81978 [[][27] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-994090 [[][28] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-256862.

[[][29] Resolución n°2010-10171. https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-481193 [[][30] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-184045 [[][31] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-133687 [[][32] https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-138896 Observaciones de SALA CONSTITUCIONAL votado con boleta Clasificación elaborada por SALA CONSTITUCIONALdel Poder Judicial. Prohibida su reproducción y/o distribución en forma onerosa.