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Res. 28792-2024 Sala Constitucional · Sala Constitucional · 02/10/2024
OutcomeResultado
The Constitutional Chamber flatly rejects the unconstitutionality action for lack of standing —the interest alleged is a generic diffuse interest amounting to a popular action— and for failing to provide clear and precise substantiation of the violation of constitutional norms.La Sala Constitucional rechaza de plano la acción de inconstitucionalidad por falta de legitimación —al invocar un interés difuso genérico equiparable a una acción popular— y por carecer de fundamentación clara y precisa sobre la lesión de normas constitucionales.
SummaryResumen
The Constitutional Chamber flatly rejects an unconstitutionality action filed against Executive Decree No. 33717-MP and the referendum process that approved the CAFTA-DR free trade agreement with the United States. The claimant argued that the referendum of October 7, 2007, violated Article 105 of the Constitution, since it included tax and fiscal matters excluded from popular consultation, and that the treaty affects fundamental rights such as a healthy environment and food security. The Court finds that the claimant lacks standing, as he invokes a diffuse interest that is actually a generic interest in upholding constitutional legality, which would amount to an impermissible popular action. Furthermore, the filing lacks clear and precise substantiation on how specific provisions of CAFTA impair constitutional rights. Justices Rueda Leal and Garro Vargas dissent, considering the flat rejection premature and that the claimant should have been ordered to cure the deficiencies.La Sala Constitucional rechaza de plano una acción de inconstitucionalidad presentada contra el Decreto Ejecutivo N°33717-MP y el proceso de referéndum que aprobó el TLC con Estados Unidos. El accionante alegaba que el referéndum del 7 de octubre de 2007 violó el artículo 105 constitucional, al incluir materias tributarias y fiscales excluidas de consulta popular, y que el tratado afecta derechos fundamentales como el ambiente sano y la seguridad alimentaria. La Sala determina que el accionante no tiene legitimación, pues invoca un interés difuso que en realidad es genérico de velar por la legalidad constitucional, lo que equivaldría a una acción popular no admitida. Además, el escrito carece de fundamentación clara y precisa sobre cómo normas específicas del TLC lesionan derechos constitucionales. Los magistrados Rueda Leal y Garro Vargas salvan el voto por considerar prematuro el rechazo de plano, debiendo prevenir al accionante para que subsane omisiones.
Key excerptExtracto clave
“(…) This Chamber has been specifying in its jurisprudence the scope and content of diffuse interests and has indicated, in that sense, that: “Diffuse interests, although difficult to define and even more difficult to identify, cannot be in our Law – as this Chamber has already said – mere collective interests; nor so diffuse that their ownership merges with that of the national community as a whole, nor so concrete that particular persons or personalized groups become identifiable or easily identifiable before them, whose standing would derive, not from diffuse interests, but from corporate ones or those that concern a community as a whole.” (…) What has not been admitted by this Chamber as a case of diffuse interest. The provisions recently set forth in ruling no. 2023-030482 of 1:22 p.m. on November 22, 2023, are fully applicable, in which this Chamber stated – in pertinent part – the following: (…) “cannot be so broad and generic that it merges with the right to uphold constitutional legality (which would imply the tacit establishment of a popular action not contemplated by the Law of Constitutional Jurisdiction).” “(…) in the sub judice, the claimant alleges a violation of Article 105 of the Political Constitution, in relation to the process of discussion and approval of the Dominican Republic – Central America – United States Free Trade Agreement (CAFTA-DR), because it was submitted to a referendum. (…) Regarding the issue of standing, he expressly invokes the protection of diffuse interests, as he primarily adduces the protection of “the right of the people to legislate through referendum,” “the legislative power of the people,” or “legislative sovereignty,” in defense of the entire national community. The action, consequently, is brought in alleged defense of the power to legislate in accordance with or in conformity with what is provided in the Political Constitution, i.e., based on a generic interest in upholding constitutional legality.”“(...) Esta Sala ha venido precisando en su jurisprudencia el alcance y contenido de los intereses difusos y ha señalado, en tal sentido, que: “Los intereses difusos, aunque de difícil definición y más difícil identificación, no pueden ser en nuestra Ley -como ya lo ha dicho esta Sala- los intereses meramente colectivos; ni tan difusos que su titularidad se confunda con la de la comunidad nacional como un todo, ni tan concretos que frente a ellos resulten identificadas o fácilmente identificables personas determinadas, o grupos personalizados, cuya legitimación derivaría, no de los intereses difusos, sino de los corporativos o que atañen a una comunidad en su conjunto." (...) Lo que no ha sido admitido por esta Sala como un supuesto de interés difuso. Resulta de plena aplicación lo dispuesto, recientemente, en el voto nro. 2023-030482 de las 13:22 horas del 22 de noviembre de 2023, en que esta Sala señaló -en lo conducente- lo siguiente: (...) “no puede ser tan amplio y genérico que se confunda con el derecho a velar por la legalidad constitucional (lo que supondría la instauración tácita de acción popular no contemplada por la Ley de la Jurisdicción Constitucional)”. “(...) en el sub judice, el accionante alega una infracción al artículo 105 de la Constitución Política, en relación con el proceso de discusión y aprobación del Tratado de Libre Comercio República Dominicana - Centroamérica - Estados Unidos (TLC), por haber sido sometido a referéndum. (...) En cuanto al tema de la legitimación, invoca expresamente la protección intereses difusos, pues aduce -principalmente- la protección del “derecho del pueblo a legislar mediante referéndum”, de la “potestad legislativa del pueblo” o “la soberanía legislativa”, en defensa de toda la comunidad nacional. Se acciona, en consecuencia, en presunta defensa de la potestad de legislar en concordancia o de conformidad con lo dispuesto en la Constitución Política, sea, en razón de un interés genérico en velar por la legalidad constitucional.”
Pull quotesCitas destacadas
"“...no puede ser tan amplio y genérico que se confunda con el derecho a velar por la legalidad constitucional (lo que supondría la instauración tácita de acción popular no contemplada por la Ley de la Jurisdicción Constitucional).”"
"“…it cannot be so broad and generic that it merges with the right to uphold constitutional legality (which would imply the tacit establishment of a popular action not contemplated by the Law of Constitutional Jurisdiction).”"
Considerando III
"“...no puede ser tan amplio y genérico que se confunda con el derecho a velar por la legalidad constitucional (lo que supondría la instauración tácita de acción popular no contemplada por la Ley de la Jurisdicción Constitucional).”"
Considerando III
"“...admitir la presente acción, en los términos en que ha sido planteada, supondría reconocer la existencia de una acción popular, lo que resulta improcedente en nuestro sistema de justicia constitucional.”"
"“…admitting the present action, as it has been formulated, would amount to recognizing the existence of a popular action, which is impermissible in our system of constitutional justice.”"
Considerando III
"“...admitir la presente acción, en los términos en que ha sido planteada, supondría reconocer la existencia de una acción popular, lo que resulta improcedente en nuestro sistema de justicia constitucional.”"
Considerando III
"“...el escrito de interposición no está adecuadamente fundamentado. (...) el artículo 9, párrafo 1º, de la Ley de la Jurisdicción Constitucional faculta a la Sala para rechazar de plano cualquier gestión ‘manifiestamente improcedente o infundada’.”"
"“…the filing brief is not adequately substantiated. (…) Article 9, paragraph 1, of the Law of Constitutional Jurisdiction empowers the Chamber to flatly reject any motion ‘manifestly improper or unfounded’.”"
Considerando IV
"“...el escrito de interposición no está adecuadamente fundamentado. (...) el artículo 9, párrafo 1º, de la Ley de la Jurisdicción Constitucional faculta a la Sala para rechazar de plano cualquier gestión ‘manifiestamente improcedente o infundada’.”"
Considerando IV
"“Es incuestionable que la acción de inconstitucionalidad es un proceso, ‘instaurado con el propósito de garantizar la supremacía de la Constitución Política frente a normas u otras disposiciones de carácter general y que por esa misma razón deben cumplirse un conjunto de formalidades, a efecto de que la Sala pueda válidamente conocer el fondo de la impugnación.’ (Voto salvado)”"
"“It is unquestionable that the unconstitutionality action is a proceeding ‘established with the purpose of guaranteeing the supremacy of the Political Constitution over norms or other provisions of a general nature and for that same reason a set of formalities must be fulfilled, so that the Chamber may validly hear the merits of the challenge.’ (Dissenting vote)”"
Considerando VI
"“Es incuestionable que la acción de inconstitucionalidad es un proceso, ‘instaurado con el propósito de garantizar la supremacía de la Constitución Política frente a normas u otras disposiciones de carácter general y que por esa misma razón deben cumplirse un conjunto de formalidades, a efecto de que la Sala pueda válidamente conocer el fondo de la impugnación.’ (Voto salvado)”"
Considerando VI
Full documentDocumento completo
CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at nine twenty hours on October second, two thousand twenty-four.
An unconstitutionality action brought by [Name 001], of legal age, married, identity card no. [Value 001], customs management and port logistics advisor, resident of Limón, against Executive Decree No. 33717-MP, of April 17, 2007, which ordered the proposal of a call for a referendum for the citizenry to approve or disapprove the “Dominican Republic-Central America-United States Free Trade Agreement” (TLC), legislative file No. 16047, according to the text recommended by the Special Commission on International Affairs and Foreign Trade of the Legislative Assembly and which was published in Supplement (Alcance) No. 2 to La Gaceta No. 19 of January 26, 2007, and to bring this initiative to the attention of the Legislative Assembly for its decision, in accordance with the provisions of Article 13 of Law No. 8492, Law on the Regulation of the Referendum, and others.
Whereas:
The referendum is a tool that allows citizens to exercise this right directly, giving voice to their opinions and decisions on important legislative matters. Popular Sovereignty: The principle of popular sovereignty, enshrined in many constitutions, including that of Costa Rica, establishes that power emanates from the people. The referendum is a direct expression of this principle, allowing citizens to exercise their sovereignty in a concrete and effective manner. Right to Self-Determination: Through the referendum, citizens have the right to influence the shaping of the laws and policies that affect their daily lives, thus exercising their right to self-determination. 2. Civic Duty: Civic responsibility: Participating in legislative processes, such as the referendum, is part of the civic responsibility of citizens. It contributes to the formation of an informed society actively committed to the development and implementation of its laws.
Contribution to the Common Good: As citizens of a democracy, there is an inherent duty to contribute to the well-being and proper functioning of society. Participating in referendums is a way to fulfill this duty, as it helps ensure that laws and policies reflect the common interest. Maintenance of Democratic Order: Active engagement in democratic processes such as the referendum is essential for the maintenance and strengthening of democracy. Citizens have a duty to participate to ensure the legitimacy and effectiveness of the political system.
It argues that the power to legislate in a democracy, being both a right and a civic duty, also constitutes a diffuse interest (interés difuso), as contemplated in the second paragraph of Article 75 of the Ley de la Jurisdicción Constitucional. This is because the capacity to participate in the legislative process does not benefit only specific individuals, but rather affects the well-being and rights of society as a whole. As a diffuse interest, the people's legislative power is manifested in the collective influence it has over the decisions and policies that affect society in general. Each citizen, by exercising their right and fulfilling their duty to participate in legislation, contributes to shaping the legal and normative framework that governs community life. This collective participation in the creation of laws and policies is crucial to ensure they reflect the values, needs, and aspirations of society as a whole.
At the same time, this diffuse interest underscores the importance of protecting and promoting democratic rights of participation. The law recognizes that the health and integrity of democracy depend not only on individual participation in the legislative process but also on the collective commitment to democratic principles and practices. Therefore, the protection of this diffuse interest is vital to preserve the democratic nature of the State and ensure that legislative decisions are a faithful reflection of the popular will. In this sense, the defense of the legislative power as a diffuse interest is not only a matter of protecting individual rights but also a matter of safeguarding the very foundations of democracy. It is fundamental to ensure that citizens can effectively exercise their right and fulfill their duty to participate in the legislative process for the maintenance of a political system that is truly representative and serves the common good.
However, a paradox arises when addressing the tariff, administrative, tax, and fiscal matters established by the Tratado de Libre Comercio between Central America and the United States. These matters addressed in the Tratado de Libre Comercio between Central America and the United States (CAFTA), as stipulated in the Constitución Política, are expressly excluded from the possibility of being submitted to a referendum. Such constitutional exclusion responds to the critical importance of these issues for national interests. Therefore, the decision to submit aspects such as tax, fiscal, and security matters, which form an integral part of CAFTA, to a referendum constitutes a direct transgression of this constitutional mandate. Such a violation not only contravenes the letter of the Constitution but also negatively impacts the safeguarding and promotion of national interests, by subverting a decision-making process that should be reserved for the legislative and direct governance sphere, according to the principles established in the Constitution.
It alleges that this situation compromises constitutional principles such as legality, reasonableness, proportionality, administrative efficiency, and budgetary balance, involving the use and management of public resources. Given this scenario, it is pertinent for the constitutional jurisdiction to examine the constitutionality of these matters. It maintains that the sovereignty of the people, although a fundamental pillar of democratic theory, is intrinsically circumscribed and modulated by the delegation of powers to representatives and other institutions. This sovereignty is balanced and contextualized within the framework of the Constitution, laws, and the ethical and democratic principles that govern the rule of law. Such circumscription not only ensures the correct functioning of the democratic system but also guarantees respect for fundamental rights and the integrity of public institutions, which does not undermine popular sovereignty but rather frames it within a system of rights, duties, and responsibilities, seeking to harmonize individual freedom with collective well-being and justice.
Therefore, given the constitutional impossibility of holding a referendum on matters of a tax, fiscal, and administrative nature, it is the competence of this Chamber to assume its role in constitutionality control, as dictated by Article 10 of the Carta Fundamental. A restrictive interpretation of this competence would not be in accordance with the principle of constitutional supremacy.
The question of whether the Tratado de Libre Comercio República Dominicana, Centroamérica-Estados Unidos can be classified as a tax and fiscal matter involves a detailed exploration of its nature and, pursuant to the provisions of Article 3 of the Ley de la Jurisdicción Constitucional, of the effects it produces on the economic and legal fabric of the country. In our country, the approval of a Free Trade Agreement (FTA) by means of a referendum is a complex issue and depends on the specific nature of the treaty and how it relates to the provisions of the Constitución Política of the country. If an FTA involves matters on which a referendum is not permissible, as provided by the aforementioned Article 105, then it cannot be the object of a referendum. The practice of submitting international treaties to a referendum is not common in Costa Rica, but it is not explicitly prohibited for certain types of treaties either, as long as they comply with the pertinent constitutional and legal requirements. In any case, the decision to submit an FTA to a referendum must consider not only the constitutional provisions but also the practical and political implications of such an action. Furthermore, any referendum process must be carried out in accordance with democratic principles, guaranteeing the informed and effective participation of the electorate.
The incorporation of Central American countries, especially Costa Rica, into the Tratado de Libre Comercio between República Dominicana, Centroamérica and the United States (CAFTA) has triggered a series of adverse and disruptive effects on the tax and fiscal landscape, challenging the established economic and legal structures of the region. This treaty, far from being a mere commercial formality, has caused a profound alteration in the very foundations of fiscal and tax policy, undermining the bases on which the revenues and fiscal autonomy of these countries are sustained. CAFTA, in its quest to liberalize trade and eliminate barriers, has imposed a drastic reduction or elimination of tariffs, undermining a vital source of tax revenue for the States. For countries like Costa Rica, this has been nothing less than a blow to their fiscal sovereignty, stripping the government of an essential revenue-collection tool and jeopardizing its capacity to finance crucial public programs and services.
The result has been unsustainable pressure on national budgets, forcing governments to seek alternative financing that often proves more burdensome for ordinary citizens. Moreover, CAFTA has introduced provisions that significantly limit the countries' capacity to exercise their autonomy in formulating fiscal policies, especially concerning foreign investment and the taxation of multinational corporations. These clauses have tied the governments' hands, preventing them from effectively taxing these entities and eroding their capacity to implement fiscal policies that respond to the specific economic needs and challenges of their nations. Furthermore, the indirect impact of CAFTA on fiscal policy has been equally disturbing. While it was promised that an increase in trade and economic activity would boost tax collection, the reality has been less flattering. In many cases, the increase in indirect tax collection has not compensated for the significant loss of revenue derived from tariff reduction, leaving a fiscal void that has weakened economic stability and increased the burden on the most vulnerable citizens.
CAFTA has resulted in a profound and problematic alteration of tax and fiscal policy in Central American countries, especially in our country, Costa Rica. Far from being an instrument of equitable economic development, the treaty has exacerbated inequalities, limited fiscal autonomy, and created monumental challenges for the economic stability of the region. This reality highlights the imperative need to review and reevaluate the terms and conditions of such trade agreements, to ensure that the benefits of international trade are not obtained at the expense of the fiscal sovereignty and economic well-being of the nations involved.
It asserts that the Tratado de Libre Comercio between República Dominicana, Centroamérica and the United States (CAFTA) is a paradigmatic example of how free trade agreements extend beyond the mere administrative sphere, delving deeply into the arenas of foreign policy, as well as the economic, social, and legal spheres. This treaty, in its conception and execution, is a clear reflection of the interaction between diplomacy, economic policy, and legal regulation, evidencing the need for a broad and nuanced understanding of its nature and classification. On the one hand, certainly, CAFTA possesses administrative characteristics. Its implementation requires detailed and methodical management of trade and customs policies, which includes tariff administration, management of import and export regulations, and the regulation of standards for products and services. This treaty also addresses aspects such as intellectual property rights and environmental and labor regulations, each of which demands effective and efficient administrative implementation by the signatory States.
However, classifying CAFTA as a mere administrative instrument would be an excessive simplification. This treaty is, in essence, an instrument of foreign policy that manifests strategic decisions of the participating States in a global scenario. The negotiations and agreements that gave rise to CAFTA involved an amalgamation of commercial, political, and strategic considerations, evidencing its role as a significant element in the foreign policy of the countries involved. In addition, the impact of CAFTA on the economy of the signatory countries is profound and far-reaching. It directly affects entire sectors of the economy, influences employment, and modifies development and economic growth patterns. The treaty has the potential to reconfigure the economic landscape, affecting not only industries but also the daily lives of citizens. Therefore, CAFTA is intrinsically linked to high-level economic policy decisions, transcending usual administrative functions.
On the legal plane, CAFTA implies the need for legislative adaptations and the adoption of new norms and regulations, which transcends the administrative sphere and enters the legislative and law reform process. This implies that the treaty has constitutional and legal implications that require careful deliberation and formal approval by the legislative bodies of the signatory States. It insists that CAFTA, as a free trade agreement, is much more than a set of administrative norms and procedures. It is a complex instrument of foreign and economic policy that reflects strategic decisions and has a significant impact on the legal, economic, and social structure of the signatory countries. Its multifaceted nature demands an analysis and treatment that recognizes its broad impact and scope, beyond the administrative sphere.
Customs policy, significantly regulated and shaped by the Tratado de Libre Comercio between República Dominicana, Centroamérica and the United States (CAFTA), plays a crucial role in the administration and application of this trade agreement. This aspect is central in the context of customs policy, which is intrinsically administrative in nature and is deeply influenced by the stipulations of CAFTA. CAFTA imposes specific and detailed guidelines that the country must follow in its customs policy, which include the management of tariff rates, the regulation of imports and exports, and the application of trade regulations. These provisions of the treaty have a direct impact on how the country administers its customs policy, which in turn affects its trade and economy. Under CAFTA, customs procedures are designed to facilitate efficient and effective trade among member countries. This means that customs processes must be aligned with the standards and requirements established in the treaty, thus guaranteeing compliance with international trade norms.
Customs policy, therefore, acts not only as an administrative function but also as an essential mechanism for the practical implementation of the treaty's commitments. It adds that CAFTA plays a determining role in aspects such as the protection of the national economy and the prevention of illicit activities at the borders. The treaty's requirements regarding security and quality control are incorporated into customs policies, which underscores the importance of efficient customs administration in accordance with international standards. Customs policy, largely regulated by CAFTA, is a vital and strategic component in the application of this treaty. The effectiveness of customs policy, dictated by CAFTA guidelines, is fundamental for the effective management of international trade relations and to ensure that the expected benefits of the treaty materialize, while respecting national economic interests and security.
Central American customs policy encompasses the set of laws, regulations, procedures, and practices that each country applies at its borders to control the flow of goods and services entering and leaving its territory. These policies are designed to regulate international trade, protect the national economy, guarantee security, and comply with international standards. Their functions include the imposition of tariffs and fees, merchandise inspection, prevention of smuggling and fraud, and the implementation of trade policies agreed upon in international treaties. Customs administration, as part of customs policy, involves a series of government actions and decisions that require an efficient administrative structure. This structure includes government agencies or departments, specialized personnel, and systems for information processing and merchandise control. The effectiveness of customs policy depends largely on the efficiency and capacity of this administrative infrastructure.
It adds that customs policy has a direct impact on the country's economy. Through it, essential aspects of international trade, such as import and export taxes, which influence the internal market, the competitiveness of national companies, and international trade relations, are regulated. Therefore, customs policy plays a key role in the formulation and implementation of the country's economic policy. It points out that customs also play a crucial role in national security. The inspection and control of what enters and leaves the country is vital to prevent illicit activities such as the trafficking of drugs, arms, and other prohibited or restricted goods. Customs policy, therefore, with its multiple functions and its impact on trade, the economy, and security, is indisputably an administrative matter. Its administration requires an organized, systematic, and coherent approach, typical of government administrative operations.
Costa Rica's adherence to the Tratado de Libre Comercio between República Dominicana, Centroamérica and the United States (CAFTA) has represented a veritable storm in the country's tax and fiscal landscape, aggressively dismantling established economic and legal structures. This treaty, far from being a mere commercial agreement, has been a vehicle for imposing a series of radical and often detrimental changes in Costa Rican customs policy, destabilizing the delicate fiscal balance and undermining the country's economic autonomy. Alignment with CAFTA has forced Costa Rica to undertake a process of legislative and administrative transformation that has gone far beyond a mere adjustment. It has signified a capitulation to the demands of a treaty that prioritizes commercial interests over fiscal stability and social well-being. The modification of the tariff structure, imposed by CAFTA, has meant a drastic reduction of tariffs, directly hitting the source of tax revenue and leaving the country in a vulnerable position, with a severely affected national budget.
The implementation of more agile customs procedures, although presented as a measure to facilitate trade, has in reality posed serious challenges to the country's ability to effectively control and regulate the flow of goods and services across its borders. This has opened the doors to commercial practices that often undermine the local economy and expose the country to security and quality risks. It affirms that the need to comply with international standards in areas such as environmental protection and labor rights, imposed by CAFTA, has been an overwhelming task for Costa Rica, demanding adaptations that have transcended mere customs practice to enter the terrain of deep and often controversial legislative reform.
The statement attributed to a former President of the Republic about the impact of the Tratado de Libre Comercio between República Dominicana, Centroamérica and the United States (CAFTA), suggesting that the approval of the treaty would transform people's economic lives to the point of going from traveling by bicycle to doing so in a Rolls Royce, is an example of the exaggerated promises and expectations that are often associated with the approval of large-scale trade agreements. This affirmation symbolizes the promise of a deep and rapid economic transformation, which in many cases may not materialize as anticipated. In the context of the campaign in favor of CAFTA, various optimistic promises and statements were made seeking to influence public opinion and secure support for the treaty. These include: General economic improvement: It was promised that CAFTA would bring significant economic growth, improving the general economy of the signatory countries and increasing their participation in international trade.
The promise of general economic improvement has proven to be exaggeratedly optimistic. In many cases, economic growth has been unequal, benefiting specific sectors while leaving others, such as agriculture and small businesses, at a competitive disadvantage. Increase in foreign investments: The treaty was expected to attract foreign investments, generating employment and fostering the development of new industries. Although there was an increase in foreign investments, this has not necessarily translated into tangible benefits for the general population. In some cases, it has led to resource exploitation and erosion of labor conditions, without a significant contribution to quality employment or sustainable development. Expansion of trade and market access: It was affirmed that CAFTA would open new markets for the products of member countries, increasing exports and diversifying the economic base.
The promised expansion of trade has not equitably benefited all sectors. Small producers and local industries have often been harmed by competition with foreign products, affecting the sustainability of local economies. Benefits for agriculture and small producers: Some statements suggested that the treaty would benefit sectors such as agriculture, granting small producers access to wider markets. Far from benefiting, many small producers and the traditional agricultural sector have been the most affected. They face unfair competition and challenges in meeting the standards and requirements of the treaty, which has led to a loss of livelihoods and a negative impact on food security. Improvement in living standards: A general improvement in living standards was promised, including better employment opportunities and an increase in incomes. The improvements in living standards have been, at best, marginal and, in many cases, non-existent.
Socioeconomic inequality has increased, and the promises of employment and salary improvements have not been fulfilled for the majority of the population. Strengthening of democracy and the rule of law: It was also argued that CAFTA would strengthen democratic institutions and the rule of law in the signatory countries. This aspect has been particularly controversial. Concerns about national sovereignty and the ability of governments to regulate in the interest of social welfare have sparked significant debate, with criticisms that the treaty has limited national autonomy in key aspects.
It indicates that it is important to critically analyze these promises and consider if they were based on realistic expectations. Often, the economic benefits of trade agreements can take time to materialize or be distributed unevenly among different sectors and social groups. Furthermore, treaties also bring economic challenges and adjustments, such as the need to adapt to greater competition and the impact on vulnerable local industries. It asserts that incorporation into CAFTA has been, for Costa Rica, an act of balancing between compliance with international obligations and the preservation of its economic and fiscal integrity. It has triggered a series of changes that have redefined not only its customs policy but also its economic and social landscape, often at a high cost. This process has been a clear testament to the overwhelming influence that free trade agreements have on a nation's economic sovereignty, challenging the country's capacity to protect its national interests in a world increasingly dominated by the powers of globalized trade.
Regarding the harmonization of tariffs and rules of origin, it states that adherence to CAFTA has triggered in Costa Rica and other Central American countries a profound restructuring of their tariff policies, marking a radical shift in their traditional economic approach. This treaty, with its demands and conditions, has forced these countries to partially or totally dismantle their tariff barriers, fundamentally altering their national tariff structure. The reduction or elimination of tariffs imposed by CAFTA has been one of the most drastic and controversial modifications. For a wide range of goods and services, countries have had to significantly lower or eliminate tariffs, divesting themselves of a major source of fiscal income. This change has not only had a direct impact on tax collection but has also altered the internal trade balance, exposing local industries to intense and often unequal international competition.
In addition, CAFTA has imposed the adoption of specific rules of origin, which define how it is determined whether a product originates from member countries to benefit from tariff preferences. These complex and meticulous rules have forced countries to adapt their customs systems and certification practices, which has represented a considerable administrative challenge and has generated concerns about their capacity to meet these requirements without compromising the efficiency and effectiveness of their customs processes. Integration into CAFTA forced Costa Rica and its Central American neighbors to make significant and often difficult changes to their tariff policies. These changes, imposed by the conditions of the treaty, have shaken the economic status quo, generating tensions and challenges that the country continues to face in its quest for balanced and sustainable economic development within the framework of globalized trade.
Regarding customs procedures and trade facilitation, it states that the implementation of the Tratado de Libre Comercio between República Dominicana, Centroamérica and the United States (CAFTA) imposed on Costa Rica and its Central American neighbors a forced and aggressive revision of their customs procedures, a measure that has transcended mere trade facilitation. This intervention, far from being a benign process of modernization, has signified a direct intrusion into national customs systems, drastically altering their functioning and priorities. Under CAFTA, countries have been forced to implement customs procedures that prioritize agility and the simplification of the transit of goods, often at the expense of exhaustive controls and adequate supervision. This imposition has led to the adoption of more 'efficient' customs practices, which, although they have accelerated clearance and document processing, have opened significant gaps in the security and integrity of customs processes.
The compulsion to facilitate faster and less costly trade flow, dictated by CAFTA, has posed serious challenges for Central American countries. In their eagerness to comply with the standards imposed by the treaty, they have had to sacrifice critical aspects of their customs and commercial sovereignty. In the case of Costa Rica, this restructuring has meant not only an alteration of its traditional customs procedures but also an increased vulnerability to potentially harmful commercial practices and a decrease in its capacity to protect its own economic and security interests. It accuses that the "facilitation" of trade required by CAFTA has turned out to be an authoritarian imposition that has destabilized the customs systems of Central American countries. This forced transformation, far from being a step towards efficiency and economic integration, has been an aggressive maneuver that has compromised the customs autonomy and security of these nations, leaving them exposed to significant risks and at the mercy of the dynamics of a globalized market dominated by greater powers.
On compliance with international standards, it points out that the imposition of the Tratado de Libre Comercio between República Dominicana, Centroamérica and the United States (CAFTA) has forced Costa Rica and its Central American neighbors into a radical and, in many respects, harmful transformation of their legal frameworks and customs practices. Under the aegis of CAFTA, the demand to comply with certain international standards in critical areas such as security, the environment, and labor rights has been nothing less than an authoritarian intervention in national sovereignties, dictating conditions that often clash with local realities and national priorities.
This treaty, in its relentless advance, has forced these countries to redesign their laws and customs practices, in an attempt to align them with a set of standards that, although laudable in their essence, do not always consider the specificities and particular challenges of the Central American nations. The imposition of these standards has been accompanied by relentless pressure for imports and exports to comply with criteria that often exceed the capacities and resources available in these countries. He maintains that, for Costa Rica, this obligation has meant not only a costly and complex restructuring of its legislation and customs practices, but also a subjection to regulations that do not align with national needs and objectives. This scenario has generated significant tensions, where compliance with CAFTA's demands has become a balancing act between preserving national interests and adapting to the demands of a treaty that dictates conditions without consideration.
CAFTA, far from being a mere instrument of commercial cooperation, has acted as an agent of forced and, in many cases, intrusive change, aggressively reconfiguring the internal policies of Costa Rica and other Central American countries. This imposition of international standards, under the promise of greater economic integration and commercial benefits, has presented an overwhelming challenge, testing the capacity of these countries to manage their own legal and customs affairs while being forced to comply with the rigorous and often challenging demands of CAFTA. Regarding specific regulations in sensitive sectors, he mentions that the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) has led Costa Rica and other Central American countries to a situation of economic subjugation, particularly with respect to sensitive or special-interest sectors. Under this treaty, specific provisions have been imposed for these sectors, which have proven to be more of a straitjacket than an opportunity for development.
Far from protecting national interests, these measures have forced countries to adopt customs regulations that often favor foreign interests to the detriment of local industries and communities. This aspect of CAFTA has revealed itself as a direct and ruthless intrusion into the autonomy of countries to manage their own resources and key economic sectors. In the case of Costa Rica, the treaty has imposed regulations that have destabilized critical sectors, forcing changes in customs and trade policies that have disproportionately benefited multinational corporations and unjustly displaced local producers and businesses. The adoption of these particular customs measures, far from being a process of rational and beneficial adjustment, has been an imposition that has undermined the capacity of countries to defend their sensitive sectors, leaving them exposed to unfair competition and exploitation.
This approach has exacerbated economic inequalities, weakened the national productive base, and eroded the capacity of governments to protect and promote their strategic economic interests. Within the framework of CAFTA, the imposition of specific regulations for sensitive sectors has been an aggressive and devastating tactic that has sacrificed the economic sovereignty of Costa Rica and its Central American neighbors on the altar of free trade. This strategy, far from fostering equitable and sustainable development, has been a tool of economic domination that has benefited a few at the expense of many, tearing the economic and social fabric of these nations and challenging their right to autonomous and just development. Regarding dispute resolution mechanisms, he asserts that the incorporation of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) imposes on Costa Rica and its Central American neighbors a dispute resolution system that is far from being equitable or fair.
These mechanisms, theoretically intended to settle trade conflicts, have in practice become tools of coercion that disproportionately favor trade powers and multinational corporations. Under the CAFTA regime, the procedures for resolving trade disputes have proven to be a minefield for Central American countries, especially for Costa Rica. These mechanisms have been criticized for their tendency to undermine national sovereignty, allowing foreign corporations to challenge and often dismantle national regulations and policies that were established to protect the public interest, health, the environment, and social welfare. The nature of these dispute resolution procedures has placed Central American countries in a position of flagrant disadvantage, pitting them against adversaries with considerably greater resources and influence. This has generated an environment where controversies related to customs and trade are handled on an uneven playing field, favoring the interests of major powers and corporations at the expense of the autonomy and needs of smaller, more vulnerable countries.
Costa Rica's experience within this system has been particularly revealing of the asymmetries of power and justice inherent in CAFTA. Trade disputes, instead of being resolved in a framework of equity and mutuality, have become unequal battles where national interests and the well-being of the population are sacrificed for the demands of powerful economic actors. In conclusion, the dispute resolution structure of CAFTA has proven to be an aggressive tool that perpetuates inequalities and subjugates national interests to the dictates of a commercial system dominated by the powerful. Far from promoting a fair and equitable resolution of trade conflicts, it has served to reinforce a global economic order in which small and developing countries, like Costa Rica, find themselves at the mercy of the interests and pressures of commercial and financial giants. He asserts that CAFTA has generated a series of negative socioeconomic effects.
He indicates that the impact of CAFTA on the general population of Costa Rica is a matter of considerable importance. While the treaty has offered opportunities for economic growth and improved living standards, it has raised questions about its impact on the distribution of wealth, equality of opportunity, and the country's capacity to meet the needs of all its citizens, especially the most vulnerable. It has been observed that large sectors of the population have experienced a decrease in their purchasing power. This phenomenon has manifested itself in various aspects of the country's economic and social life, revealing significant challenges in the post-CAFTA era. The reduction or elimination of social programs, which were previously intended to protect disadvantaged sectors, is one of the most concerning consequences. These programs have been crucial for mitigating inequalities and offering support to vulnerable communities.
Their decrease has generated concerns about the well-being of these populations and has raised questions about the State's capacity to guarantee a minimum level of social security and well-being for all its citizens. Furthermore, social investment and investment in infrastructure fundamental for economic growth and rural, urban, and interregional mobility has suffered cuts. These investments are vital for the country's sustainable and balanced development, and their reduction can have a negative impact on the quality of life and opportunities for progress in communities, especially in less developed areas. The increase in public debt is another worrying aspect. This increase in the debt burden limits the government's capacity to invest in key areas and can have long-term repercussions on the country's economic stability and fiscal sovereignty. Debt management becomes a critical issue, especially when considering financing needs for education, health, and infrastructure.
From the perspective of the Democratic and Social Rule of Law, in a critical and detailed analysis of the effects of CAFTA on the socioeconomic reality of Costa Rica and Central America, it is observed that, more than sixteen years after its implementation, the balance is concerning and far from the initial promises. This analysis allows for a deeper exploration of the concrete impacts and the discrepancies between what was promised and what actually occurred. He alleges a growing impoverishment of the population. He states that the promise of improvements in the standard of living and in the general economy has not been fulfilled for broad sectors of the population. The growing impoverishment, evidenced by the increase in inequality and the reduction of the middle class, raises serious concerns from the point of view of fundamental economic and social rights. The Costa Rican Constitution, in its Article 50, establishes the duty of the State to procure the well-being and the improvement of the quality of life of all its inhabitants, which seems to contradict the effects observed post-CAFTA.
He accuses an accumulation of capital in specific sectors. The concentration of economic benefits in sectors such as finance, banking, export, and commerce, while other sectors and the general population do not experience significant improvements, can be interpreted as a violation of the constitutional principle of social justice. According to Article 33 of the Political Constitution, all persons are equal before the law and have the right to equal protection. This disparity in the distribution of the treaty's benefits challenges this principle, since not all citizens benefit equally from the country's economic policies. He claims an impact on food security and on the agricultural sector and small producers. The negative impact on the traditional agricultural sector and small producers, who have faced unfair competition and challenges in complying with the treaty's standards, conflicts with the right to food security, implicitly recognized in the Constitution.
This negative impact is also problematic from the perspective of the right to work (Article 56 of the Constitution) and the right to private property (Article 45 of the Constitution), as it affects the capacity of farmers to maintain their livelihoods and their property. He alleges an erosion of national sovereignty and regulatory autonomy. The perception that CAFTA limits national autonomy to regulate for the social and economic well-being of the population can be considered a violation of the principle of national sovereignty, enshrined in Article 12 of the Political Constitution. This manifests itself especially in the State's capacity to establish policies that protect and promote national interests in areas such as public health, the environment, and social development. He mentions that there are challenges for public policy and State administration. The restrictions and tax commitments arranged by CAFTA on the formulation of public policies and the administration of the State must be interpreted as a challenge to the principles of efficiency and effectiveness in public management, enshrined in Article 191 of the Constitution.
The treaty may limit the government's capacity to respond effectively and efficiently to the needs and challenges of Costa Rican society, particularly regarding the equitable distribution of resources and the promotion of general welfare. He maintains that the evaluation of CAFTA, in light of constitutional principles and fundamental rights, reveals a series of conflicts and challenges that question the effectiveness and justice of its implementations. It is imperative for the authorities and civil society to consider these impacts and seek ways to mitigate the disparities and ensure that the benefits of international trade are distributed more fairly and equitably, aligned with the principles of social justice and legality. He insists that the present action of unconstitutionality is based on the pertinent legal framework to question the constitutionality of various actions linked to both the calling and the holding of the referendum held on October 7, 2007.
He states that this challenge encompasses resolution No. 2944-E-2007, issued by the Supreme Electoral Tribunal at 2:30 p.m. on October 22, 2007, which culminated in the ratification of Law No. 8622 regarding the Dominican Republic-Central America-United States Free Trade Agreement, as well as Law No. 8622 itself. He insists that this constitutional appeal seeks the detailed scrutiny and profound review of the constitutional legitimacy of the mentioned actions and legal provisions. The relevance of this action lies in its purpose of guaranteeing the integrity of the democratic process and the supremacy of constitutional norms in the governance and administration of the nation. The basis for filing this action lies in the legitimation granted by the second paragraph of Article 75 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), which contemplates the protection of diffuse or collective interests.
This provision takes on special relevance when the collective impact translates into an individual injury for each inhabitant of the Republic of Costa Rica. He reiterates that the call for the referendum of October 7, 2007, the subsequent resolution of the Supreme Electoral Tribunal, and the approval of Law No. 8622 constitute a flagrant and serious violation of the principles established in the Political Constitution. By focusing on tax and fiscal matters, these actions directly contravene Article 105 of the Constitution, which explicitly establishes the prohibition of using a referendum on such matters. This violation not only represents a serious transgression of the Constitution but also undermines the fundamental right of the Costa Rican people to exercise their legislative sovereignty. Furthermore, these actions compromise citizen participation, a fundamental aspect that the Constitution seeks to guarantee, especially in the realm of decisions of general interest that are not subject to a referendum call.
By addressing tax, fiscal, and security matters, it affects not only the constitutional order but also the economic and social order of the nation. These events have a direct impact on the economic and social interests of the inhabitants of Costa Rica, both in their role as producers and consumers. The inclusion in free trade treaties, considered acts of an administrative nature, affects a significant source of income for the State, compromising the proper management of public income and expenditure. The impact of these actions goes beyond a simple constitutional transgression, as they have profound and lasting consequences on the economic and social fabric of the nation. They compromise citizen participation in decision-making processes of general interest, a fundamental pillar of the Costa Rican democratic system, especially in areas where a referendum call is not appropriate. The implication of tax, fiscal, and security issues not only destabilizes the constitutional structure but also has a direct impact on the integrity of the economic and social order of Costa Rica.
He insists that the actions related to the 2007 referendum and its constitutional implications represent a direct violation of the principles of legality, equity, and administrative efficiency, in addition to the maxims of reasonableness and proportionality. These actions constitute an injury to the fundamental rights of Costa Rican citizens, endangering the quality of life in a healthy and balanced environment and the protection of their legitimate economic and social interests. This resolution therefore seeks to restore compliance with constitutional mandates and protect the rights and well-being of the people of Costa Rica. He indicates that this Chamber has enumerated various rights to which it has given the designation of "diffuse" (difusos), such as the environment, cultural heritage, the defense of the country's territorial integrity, and the proper management of public spending, among others.
He cites rulings 7088-98 and 8239-2001 of this Chamber. He points out that he files this action under Article 75 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), basing his legitimation on the protection of diffuse interests (intereses difusos), that is, those interests of the community as a whole whose violation implies, in turn, an individual injury for each inhabitant of the Republic. He alleges that the present action of unconstitutionality raises a matter of extreme gravity and constitutional relevance, namely the effects derived from the challenged referendum, through which the Free Trade Agreement (FTA) is permitted, as they substantially and adversely affect fundamental rights safeguarded by our Political Constitution. This impact manifests itself most acutely in two primary areas: the right to enjoy a healthy and ecologically balanced environment and the right to citizen participation in environmental matters, both essential pillars of our Democratic and Social Rule of Law.
The FTA, as ratified through the challenged referendum, contains provisions that, directly or indirectly, have the potential to undermine the fundamental right to a healthy and ecologically balanced environment. These provisions facilitate commercial or industrial activities that, without adequate environmental regulation and supervision, could lead to environmental degradation, affecting biodiversity, natural resources, and ultimately, the health and well-being of the people. The Political Constitution of our nation enshrines the right to a healthy environment as a fundamental right, intrinsically linked to the dignity of the person and the enjoyment of other human rights. Therefore, any international treaty that, in its application, compromises this right, must be subject to rigorous constitutional scrutiny. In the context of the referendum and the implementation of the FTA, this right has been compromised.
The referendum process did not provide an adequate framework for deep public deliberation and effective participation in significant environmental issues related to the FTA. Likewise, the provisions of the FTA limit the capacity of citizens to actively participate in environmental decision-making, especially if the treaty imposes restrictions on how national environmental policies and regulations can be developed and applied. This right, implicit in the democratic principle and explicitly recognized in various international regulations to which Costa Rica is a party, is essential to ensure that decisions affecting the environment are made transparently, informed, and with the active participation of those who will be affected by them. The referendum process, by not providing an adequate framework for deliberation and effective participation in matters of environmental transcendence, violates this fundamental right.
These rights are expressly protected in Articles 9, 50, 89, 105, and 191 of the Constitution. In addition, they negatively impact the proper management of public income and expenditure and the protection of the legitimate economic and social interests of citizens, as producers and consumers of exported and imported goods. This aspect is protected by Article 46 of the Constitution. He reiterates that he files this action based on the provisions of Article 75, second paragraph, of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), regarding diffuse interests (intereses difusos), in the protection of a diffuse interest as a consequence of his condition as a citizen inhabitant of this country, like all the inhabitants of the Republic, as members of the sovereignty and at the same time consumers of a large quantity of goods that enter national territory under the provisions of said free trade agreement.
He specifies that the present claim, regarding the alleged unconstitutionality of the multiple actions related to the referendum and the approval of the Free Trade Agreement (FTA) between Costa Rica and the United States, is based on its grave impact on essential constitutional principles, which include the principles of legality, equality before the law, reasonableness and proportionality, as well as that of budgetary balance and administrative efficiency. These impacts directly compromise the financial and economic stability of the State, affecting the quality of services provided to citizens and, by extension, the legal and economic order of the Nation. It is relevant to point out that, regarding the unconstitutionally approved FTA, this Constitutional Chamber has consistently reiterated, through a series of rulings, that Costa Rica is a Democratic and Social Rule of Law. This principle is based on the values derived from Articles 50 and 74 of the Political Constitution.
He considers that Costa Rica's adhesion to the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) is a flagrant betrayal of the fundamental principles of the Democratic and Social Rule of Law, as enshrined in our Political Constitution. This treaty has meant a direct assault on democratic values and a shameless abandonment of the State's commitment to protect and promote the fundamental and social rights of its citizens. Article 50 of the Costa Rican Constitution clearly establishes that the State must procure the well-being of all its inhabitants, something that CAFTA has aggressively and ruthlessly undermined. Adhesion to this treaty has meant a shameful subordination of the rights to health, education, an adequate standard of living, and the protection of labor and environmental rights, in favor of trade agreements that disproportionately benefit foreign and corporate interests.
This deviation from the constitutional commitment towards a development model that favors free trade over human well-being represents a grotesque distortion of the principles of social justice and equity. The FTA has placed Costa Rica at a perverse crossroads, where the rights and needs of its citizens are sacrificed on the altar of an economic model that promotes a predatory and ruthless form of globalization. In the context of a Social State, as defined by the Costa Rican Constitution, the FTA represents a direct threat and a frontal attack on the ideals of collective well-being and equity. The Constitution not only obliges the State to actively participate in processes of production and the development of fundamental rights, but also to protect the common welfare. However, under the CAFTA regime, an era of distorted priorities has been unleashed, where the freedom of trade has become an excuse to dismantle legitimately established state regulations and to erode the rights and well-being of the population.
He considers that CAFTA has been a brutal blow to the essence of our Democratic and Social Rule of Law, subverting the Political Constitution and betraying the principles of social justice and equity in favor of an economic system that favors a few powerful at the expense of the majority. This treaty has represented a regression in the protection of fundamental rights and in the promotion of the common welfare, jeopardizing the future of democracy and social justice in Costa Rica. The Political Constitution establishes the framework of a Democratic and Social Rule of Law, where democratic values are prioritized and the State's commitment to protect and promote the fundamental and social rights of its citizens is assumed. This includes rights such as health, education, and an adequate standard of living, in addition to the protection of labor and environmental rights, with the objective of ensuring the common welfare and meeting the basic needs of the population.
However, with Costa Rica's entry into a Free Trade Agreement (FTA) with the United States, the country emphasizes the principles of the free market and introduces significant tensions into this model. The FTA, by eliminating barriers to trade and investment, allowed for greater fluidity of foreign products, services, and capital that altered the country's internal economic and social balance. The consequences of trade liberalization in treaties like CAFTA have a scope that goes beyond economy and commerce. They directly affect fundamental aspects such as food security, public health, and the care of the population in old age. It is imperative, therefore, to address these challenges with a comprehensive vision that places the well-being of the population and national sovereignty at the center of public policies. This implies not only reevaluating existing trade commitments but also strengthening internal policies that protect and promote food security, access to health, and the well-being of all citizens, especially the most vulnerable.
Trade liberalization, the key component of treaties like CAFTA, has generated significant conflict in sensitive sectors of the economy, as is the case with agriculture. This liberalization has had a direct and adverse impact on small producers and workers, profoundly altering the dynamics of the agricultural sector. A particularly concerning consequence of this situation is the erosion of food security, an essential pillar for the sovereignty and well-being of any nation. Food security not only implies the availability of food but also its accessibility and quality. By affecting small producers, the country's capacity to feed its population autonomously and sustainably is compromised. On the other hand, the protection of foreign investment and intellectual property rights, as articulated in these treaties, have imposed significant restrictions on the State's capacity to implement policies for the benefit of the community.
A clear example of this is access to generic medicines. These medicines are crucial to ensure that essential treatments are accessible to the entire population, especially for the most vulnerable sectors. The restrictions imposed by trade agreements in this area have direct consequences for public health and the right to health, a fundamental human right. Furthermore, these dynamics affect the protection and care of the population in old age. A robust and accessible public health system is fundamental to ensuring a dignified quality of life for older adults. Health policies affected by trade restrictions limit the State's capacity to provide adequate health services to this population, putting their well-being at risk. Given the nature of a Democratic and Social Rule of Law, where special protection is granted to fundamental and social rights, constitutional jurisprudence in Costa Rica has reaffirmed the importance of these rights and of the political and economic system that sustains the social model.
Therefore, any policy or international agreement, such as the FTA, that could compromise these principles, must be subject to rigorous scrutiny. The FTA represents a considerable challenge for Costa Rica's Social State. The trade commitments acquired conflict with the objectives and values of the Social State and affect the State's ability to promote collective welfare and protect fundamental and social rights. It is crucial that such treaties be negotiated and implemented in a way that respects and strengthens the principles and values of the Democratic and Social Rule of Law. He cites judgment No. 03-2771. In the plaintiff's judgment, the implementation of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) has been a direct and ruthless attack against the very essence of the Democratic and Social Rule of Law in Costa Rica. Far from being a mere commercial formality, this treaty has aggressively eroded the foundations of the political and economic system of these nations, limiting the intervention of the State in areas where its action is crucial and constitutionally permitted.
This incursion of CAFTA into national sovereignty has meant an excessive and often unconstitutional restriction of state competencies, undermining the capacity of governments to regulate for the benefit of public well-being and social justice.
The imposition of this treaty has been a clear violation of the democratic and social principles that the Nation has defended and developed throughout its history. A mercantile logic has been imposed that prioritizes the economic interests of corporations over the rights and needs of the population. For Costa Rica, a country with a consolidated tradition of social policies and rights protection, CAFTA has represented a flagrant regression, a forced dismantling of its welfare and equity policies. The regulations and programs that have historically been implemented to protect the most vulnerable and guarantee a fair distribution of resources have been compromised and limited under the weight of this treaty. CAFTA has been an instrument of coercion that has aggressively displaced democratic and social principles in favor of an economic model that disproportionately benefits corporate and financial powers. This imposition has been an affront to constitutionality and the very essence of the Democratic and Social Rule of Law, leaving the country in a position of vulnerability and subjection to the demands of a globalized and ruthless market.
He asserts that CAFTA, therefore, has not only been a commercial treaty, but has been a tool of economic and political domination that has imposed draconian restrictions on the sovereignty of the Central American countries. This treaty has redefined the relationship between the State and the market in a way that undermines the capacity of governments to act in defense of the public interest and to preserve the fundamental values of the Democratic and Social Rule of Law.
The petitioner states that he does not question the power or the general possibility of establishing free trade agreements, nor is his challenge centered on the nature or origin of administrative and legislative actions per se. His concern lies in the denaturalization that these actions have suffered, a phenomenon that legal doctrine identifies as abuse of right. He maintains, again, that the actions challenged in this proceeding directly contravene Article 105 of the Political Constitution and transgress the fundamental principles of legality, reasonableness, and proportionality. These principles, in their capacity as parameters of constitutionality, are complemented by the criteria of equality before the law, budgetary balance, and administrative efficiency.
Regarding the principles of reasonableness and proportionality, he cites rulings of this Chamber No. 1420-1991 and 02023-2010. He indicates that CAFTA must be evaluated and understood in light of the principle of reasonableness, ensuring that its provisions reflect clear logic and solid justification in the context of national objectives. This implies a meticulous analysis to verify that the treaty truly promotes economic growth, trade expansion, and strengthens international relations in a way that benefits society as a whole. Proportionality demands that CAFTA's stipulations maintain a balance between the expected benefits and the imposed obligations. It is essential that the treaty does not impose excessive or disproportionate burdens on key sectors of society, such as local agriculture or national industry. There must be a fair balance that protects the interests of all citizens, especially those most vulnerable to economic changes.
CAFTA, as an international commitment, must be coherent with the principles of reasonableness and proportionality to align with the aspirations and needs of the Democratic and Social Rule of Law. This implies a commitment to continuous and critical evaluation of the treaty, ensuring that its provisions and effects are in harmony with national interests, promote equitable development, and respect the rights and well-being of the entire Costa Rican society. The proactive application of these principles guarantees that international treaties like CAFTA not only meet economic and commercial objectives but also reflect the fundamental values of justice, equity, and democracy that define the nation.
Regarding the principle of legality, he cites rulings of this Chamber No. 6351-2011 and 3933-98. He maintains that, as a fundamental pillar in a Democratic and Social Rule of Law, the principle of legality establishes that all government actions must be grounded in law and subject to legal scrutiny. This principle guarantees that public decisions and policies adhere to an established legal framework, promoting transparency, equity, and justice. In the context of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA), the relationship with the principle of legality must be proactively analyzed to ensure that the treaty complies with the essential objectives and values of a Democratic and Social Rule of Law. CAFTA's alignment with the principle of legality implies a meticulous review to confirm that all its provisions and implementation processes conform to national laws and constitutional standards.
This proactive evaluation is essential to guarantee that the treaty not only meets expectations of economic growth and commercial development, but also respects fundamental rights, environmental and labor standards, and democratic principles. Furthermore, a proactive application of the principle of legality in relation to CAFTA implies a commitment to the continuous review and adaptation of national laws to ensure that the treaty is implemented in a way that promotes general welfare, protects vulnerable sectors, and strengthens institutional integrity. This approach guarantees that CAFTA, as a foreign and economic policy tool, is integrated into the country's legal system in a way that fully respects the existing legal framework and contributes positively to social and economic development. CAFTA's coherence with the principle of legality is crucial to affirm that the treaty aligns with the interests and objectives of the Democratic and Social Rule of Law.
This requires constant vigilance and detailed evaluation, ensuring that the treaty is not only a vehicle for economic growth and the strengthening of trade relations, but also a reflection of the State's commitment to legality, justice, and the well-being of all its citizens.
He adds that this Chamber has ruled on the limitation of freedom of commerce under two crucial premises: the need for a harmonious interpretation with other constitutional provisions and the legislator's power to grant advantages or benefits to certain individuals or social groups to guarantee equality. He accuses that, in the context of freedom of commerce, enshrined in Article 46 of the Political Constitution of Costa Rica, the interpretation and application of this right has been brutally distorted and manipulated, particularly in relation to the effects of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA). The reality that has unfolded under CAFTA is a flagrant violation of these premises. Freedom of commerce, instead of being a right balanced and harmonized with the constitutional principles of justice and equity, has become a tool of economic and social oppression.
Under the shadow of CAFTA, the power to grant advantages or benefits to certain groups to ensure equality has been trampled, giving way to an era where trade policies have exacerbated inequalities, disproportionately favoring powerful economic actors and further marginalizing the vulnerable. This abuse of freedom of commerce has undermined the very essence of the Democratic and Social Rule of Law, twisting the principles of equality and social justice in favor of a mercantilist and dehumanized vision. The harmonious interpretation of freedom of commerce with other constitutional provisions has been abandoned, leaving a void where there should be a balance between free trade and the protection of fundamental and social rights. The interpretation and application of freedom of commerce, within the framework of CAFTA, has been an assault on the Political Constitution. He considers that the referred treaty has disfigured the essence of rights and freedoms, prioritizing economic interests over the welfare of society and betraying the principles of equality and justice that are pillars of the Costa Rican nation. He cites judgments No. 1195-91 and No. 3016-95 of this Chamber, in relation to freedom of enterprise and free competition.
He mentions the principle of budgetary balance. He maintains that, given Costa Rica's current fiscal situation, which presents itself as a challenge of considerable magnitude, the imperative need to rigorously reinforce the principle of fiscal responsibility emerges. This principle, which is essential for efficient and transparent public administration, is inextricably linked to the notion of administrative efficiency, playing a crucial role in setting clear limits and promoting prudent management of state resources. At the core of this guiding principle lies the meticulous and ethical management of public funds, fundamental for the sustenance of the state apparatus. These funds, which originate from revenues obtained through taxes, fees, and other levies, constitute the pillar of government financing. In a context where State resources are inherently limited, it is imperative for Costa Rican citizens to observe a utilization of their fiscal contributions that is not only effective and transparent, but also constructively impacts the comprehensive development and fiscal solvency of the country.
Costa Rica, upon facing significant challenges in managing its finances, finds itself before the crucial opportunity to balance the fiscal burden imposed on its citizens with a government administration characterized by its efficiency and responsibility. This endeavor demands an unwavering commitment to transparency and accountability, driving the constant search for innovative solutions that promote economic stability and the collective well-being of the nation. Fiscal responsibility, more than a state obligation, is an inherent right of citizens, who are fully entitled to demand and expect that their contributions be transformed into efficient public services and policies that foster sustainable and equitable development. He notes that Costa Rica has before itself the possibility and the duty to transform the current fiscal challenges into an opportunity for reform and improvement, thus ensuring a prosperous and just future for its entire population.
The intrinsic relationship between the principles of fiscal responsibility and the mandates established in Articles 9, 11, 33, 46, 50, 57, 68, 176, and 191 of the Political Constitution of Costa Rica provides a unique opportunity to redefine and strengthen the management of the country's public resources. This interrelation not only highlights the critical importance of prudent and transparent fiscal administration, but also opens a proactive path to guarantee the respect and protection of the fundamental rights of citizens and the fulfillment of the State's constitutional duties. Before this juncture, the challenge for Costa Rica is to implement a fiscal strategy that effectively balances revenue collection with efficient allocation and expenditure of public resources. This approach would not only address current concerns regarding the fiscal situation, but would also reinforce the foundations of solid governability and sustainable social welfare.
The adoption of fiscal policies that respect and promote constitutional principles is fundamental. This implies a constant review and improvement of collection and expenditure mechanisms, ensuring that every step in fiscal administration contributes to the comprehensive development of the nation and the well-being of its inhabitants. Furthermore, it is crucial to foster transparency and accountability at all levels of public management, which will not only strengthen citizens' trust in their institutions but will also guarantee that public resources are used fairly and effectively. Ultimately, the promotion of responsible fiscal management in accordance with constitutional precepts is a fundamental task for Costa Rica. Through a firm commitment to these ideals, the country can ensure equitable and effective governance, protect the rights of its citizens, and foster sustainable and equitable development for all present and future generations.
The principle of budgetary balance, which underscores the importance of maintaining a balance between income and expenses, focuses not only on accounting equality, but also on the need to consider other factors that may influence public finances. Within this context, a crucial opportunity arises for the Costa Rican State to adopt a more dynamic and strategic approach in its budget management. This approach implies going beyond mere accounting of income and expenses, and considering factors such as economic trends, social needs, and long-term development objectives. It is essential that the State commit to generating a budget that not only reflects an accounting balance, but is also aligned with the priorities and needs of Costa Rican society. The jurisprudence of the Constitutional Chamber, which holds that authorized expenses cannot exceed projected income, is a reminder of the need for rigorous fiscal discipline.
However, this discipline should not be restrictive, but should be seen as a framework within which creative and responsible financial management can and should be exercised. This includes identifying opportunities to improve efficiency in revenue collection and in the allocation and expenditure of public resources, as well as the search for forms of financing that are sustainable and do not compromise long-term fiscal stability. Furthermore, the principle of budgetary balance should not be interpreted as a limitation on investment in key areas that promote sustainable development and social welfare. On the contrary, it should be a stimulus for more strategic and conscious planning that ensures available resources are used in the most effective and beneficial way for the country. The challenge for Costa Rica is to balance the need for prudent fiscal administration with the commitment to meet the needs and aspirations of its population. This requires a strategic vision that recognizes budgetary balance not as an end in itself, but as a means to achieve more equitable, inclusive, and sustainable development.
He maintains that the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) presents several significant challenges that adversely affect the country's budgetary balance and economic stability. Although the treaty seeks to promote economic growth and expand trade, the negative impacts of its implementation require careful consideration. He mentions a reduction in fiscal revenues. He points out that the decrease or elimination of tariffs, one of the cornerstones of CAFTA, results in a notable reduction in fiscal revenues derived from imports. This loss of revenue is a critical aspect, as it creates deficits in the national budget by not being compensated with increases in other areas of fiscal collection. He alleges an increase in public spending. To meet the demands of the treaty, the Administration needs to invest considerably in infrastructure, job training, and other services.
These additional investments put pressure on the government budget, especially if they are not accompanied by a corresponding increase in revenues. He accuses an impact on sensitive sectors. He maintains that CAFTA negatively affects crucial economic sectors such as agriculture, impacting small producers and workers. This impact requires greater state intervention and financial support to mitigate the adverse effects, which in turn increases public spending. He asserts that there are restrictions on public policies. The provisions related to the protection of foreign investment and intellectual property rights limit the government's ability to implement public policies for the benefit of the community, such as access to generic medicines. This has negative implications for public health and increases the State's financial burden on medical care and social programs. He mentions economic risks and volatility.
He indicates that, despite the potential for economic growth, the dependence on international trade introduced by CAFTA also brings volatility and financial risks, particularly if the economy becomes excessively dependent on a few sectors or markets. He affirms that, while CAFTA seeks to promote trade and investment, its effects on budgetary balance and economic stability are significantly negative. The reduction in fiscal revenues, the increase in public spending, the adverse impact on key economic sectors, and the restrictions imposed on public policy present substantial challenges. These factors underscore the need for careful fiscal analysis and planning to mitigate the negative aspects of the treaty and preserve the economic and social stability of the nation.
The implementation of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) has generated negative impacts on the fulfillment of the principle of budgetary balance, crucial in the management of public finances. This principle requires that State income and expenses be balanced in such a way that the essential needs of the citizenry are met without compromising the country's fiscal and financial stability. However, with the implementation of CAFTA, worrying trends have been observed, such as the neglect of basic needs. He maintains that the implementation of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) has triggered a notable reconfiguration in the allocation of state resources, evidencing a significant division of the principles of budgetary balance. This reorientation of funds, far from prioritizing the essential needs of the citizenry, has focused on meeting the demands imposed by the treaty, which raises serious questions about the alignment of these actions with the fundamental priorities and needs of the population such as health, education, infrastructure, and social security, failing in the fundamental purpose of equitable and just budget management.
He claims an impact on fiscal sustainability. The diversion of resources towards the treaty's demands and the reduction in attention to fundamental obligations towards the population have generated greater social and economic problems. These consequences negatively affect long-term fiscal stability, creating a cycle of financial imbalance and economic challenges. He alleges an erosion of legitimacy and public trust. Budgetary management that prioritizes CAFTA's demands over the fundamental needs of the population undermines the government's legitimacy and deteriorates public trust. This approach, by moving away from the principles of a Democratic and Social Rule of Law, compromises social cohesion and stability. He maintains that, in conclusion, the challenge facing the country in the context of CAFTA is not just a matter of complying with international trade commitments, but also of maintaining a budgetary balance that reflects internal priorities and needs.
The management of this balance is crucial to guarantee that the administration of the State's resources is done in a way that promotes comprehensive and sustainable development, while respecting the rights and well-being of all citizens.
Regarding the principle of administrative efficiency, he indicates that our Political Constitution, in its Article 191, emphatically establishes the principle of "efficiency of the administration" as a crucial foundation in the performance and conduct of the public administration. This constitutional mandate, centered on efficiency, carries with it an implicit interpretation of efficacy, given the unavoidable interdependence of both concepts in the administrative sphere. It is crucial to recognize that, although efficacy is not explicitly mentioned in the constitutional text, its tacit inclusion within the framework of efficiency is undeniable and necessary. In the context of public administration, efficiency transcends the simple notion of optimal resource use, also encompassing the capacity to achieve goals and results effectively, which is precisely the core of the concept of efficacy.
The understanding of efficiency as an integral concept, which encompasses efficacy, facilitates a more exhaustive and meaningful application of these principles in the administrative apparatus. An administration that is guided solely by efficiency, but without achieving the expected results, results in efficient but ineffective resource management. On the other hand, efficacy that does not consider efficiency can meet objectives, but at a cost or with a use of resources that is not sustainable or prudent. Consequently, the interpretation and practical application of administrative efficiency in Costa Rica necessarily incorporate an element of efficacy. This vision guarantees that the public administration not only uses its resources as efficiently as possible, but also fulfills its objectives effectively. This approach ensures that the administration's actions are in line with the expectations and needs of the citizens and faithfully reflect the spirit and intentions of the Constitution.
In essence, the challenge for the Costa Rican public administration is to embody these principles of efficiency and efficacy not only as a constitutional obligation, but as an ethical and practical commitment to continuously improve the quality of public services, promote transparency, and respond effectively to the demands and challenges of a dynamic and constantly evolving society.
He alleges that the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA), by introducing new frameworks and regulations in the field of trade and the economy, presents significant challenges regarding administrative efficiency in the Democratic and Social Rule of Law that is Costa Rica. This treaty, while fostering trade and investment, comes into tension with the principle of administrative efficiency in several ways: 1. Administrative Complexity: CAFTA requires the implementation of new regulations and procedures that increase administrative complexity for public institutions. This diverts resources and attention from other critical areas, affecting the government's capacity to respond efficiently to the needs of its population. 2. Pressure on Public Resources: The demands of adaptation to the treaty, such as adjustments in customs legislation, intellectual property protection, and trade regulation, require a significant allocation of human and financial resources.
This limits efficiency in other areas of public administration. 3. Rigidity in Public Policy: The restrictions imposed by CAFTA in certain areas, such as the protection of foreign investors, limit the government's flexibility to implement efficient public policies adapted to the changing needs of society. 4. Impact on Essential Public Services: CAFTA influences fundamental aspects such as health and education, for example, through its provisions on intellectual property that affect access to generic medicines. This poses challenges for administrative efficiency in the provision of essential public services.
The petitioner asserts that compliance with the principles of efficiency and efficacy, in parallel with the ethical and practical commitment to transparency and effective response to the needs of a dynamic society, is greatly challenged by the demands imposed by the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA). This treaty, with its complex network of regulations and requirements, poses a scenario in which maintaining an agile and efficient public administration is an arduous task and, often, seems nearly impossible. CAFTA, by dictating specific regulations in areas such as customs and trade policy, significantly limits Costa Rica's room for maneuver to adapt its administrative policies and practices to the changing needs of its population. This imposed rigidity hinders the adaptation and implementation of policies that respond effectively and efficiently to local challenges and the specific demands of Costa Rican society.
Furthermore, transparency in public management, a fundamental pillar in a democratic system, is compromised by the often opaque nature of the treaty's negotiations and provisions. This generates additional challenges to ensure that decisions made under the CAFTA framework are understood and accepted by the citizenry, which is essential to maintain trust in democratic institutions. In this context, Costa Rica faces the challenge of balancing the obligations and opportunities arising from CAFTA with the critical need to maintain a public administration that is not only efficient and transparent, but also capable of adapting and responding adequately to the needs and expectations of its population. The task of preserving general welfare and fundamental democratic principles becomes an even greater challenge in the CAFTA era, where the treaty's demands are in direct conflict with the principles of efficacy and efficiency that are essential for good governance.
Regarding the principles of sovereignty and food security, the petitioner asserts that, in the legal and constitutional framework of Costa Rica, such principles, although not explicitly mentioned, do find a solid foundation in Articles 50 and 74 of the Political Constitution. These articles, by enshrining the principles of general welfare and social justice, respectively, establish the bases for interpreting food security as an implicit right, crucial for the full and healthy development of the population. Article 50 of the Political Constitution of Costa Rica establishes the State's commitment to ensure the greatest well-being for all inhabitants, which implies, among other aspects, access to the basic resources necessary for a dignified life, including food. The reference to the organization and stimulation of production and an adequate distribution of wealth can be interpreted as a mandate to implement policies that ensure the availability, accessibility, and adequacy of food for the entire population, constituent elements of the right to food security.
For its part, Article 74 of the Constitution reinforces the framework for food security by invoking the Christian principle of social justice as the foundation of legislation and political action in Costa Rica. This principle implies an ethical and legal commitment to equity and inclusion, foundations that are essential to guarantee that all people, regardless of their economic or social condition, have access to adequate food.
He points out that jurisprudence and constitutional doctrine in Costa Rica have tended to interpret the Constitution in a way that recognizes and protects implicit fundamental rights, derived from the general principles of welfare and social justice. In this sense, the right to food security is understood as a fundamental human right that the State must guarantee, given its inextricable link with the right to life, health, and well-being. Furthermore, Costa Rica, as a signatory to various international human rights treaties and conventions that explicitly recognize the right to adequate food, has the commitment to align its domestic legislation and policies with these international standards. This reinforces the interpretation that food security is a principle inherent to the Costa Rican constitutional framework.
It alleges that, therefore, it can be affirmed that, through a comprehensive interpretation of articles 50 and 74 of the Political Constitution of Costa Rica, together with the relevant case law and the international commitments assumed by the country, the principle of food security is derived and consolidated as an essential part of Costa Rican constitutional law. This principle underlies the State's commitment to general welfare and social justice, fundamental elements for the full development of the individual and social cohesion. It claims that the TLC, while promoting economic integration and the expansion of trade between both countries, raises serious considerations regarding the fundamental right to food security. It mentions an impact on local production. The TLC facilitates a greater opening of the Costa Rican market to agricultural and food products from the United States. Given the productive capacity and agricultural subsidies in that country, there is a significant risk that imported products will compete unfavorably with local production, affecting the economic viability of Costa Rican farmers and producers.
This could lead to a decrease in local food production, compromising the availability of sufficient and nutritious food within the country. It refers to food dependency. The liberalization of trade within the framework of the TLC could increase Costa Rica's dependence on food imports, which is concerning from the perspective of food security. An excessive dependence on external food sources can make the country more vulnerable to fluctuations in international prices and disruptions in the supply chain, jeopardizing the population's continuous access to food. It accuses a loss of food sovereignty. It points out that the commitment to the principles of social welfare and justice, established in articles 50 and 74 of the Constitution, also implies the promotion of food sovereignty. However, the TLC, by prioritizing commercial and economic interests, could limit the capacity of the Costa Rican State to adopt policies that promote local food production and protect small farmers, thus undermining the country's food sovereignty.
It mentions effects on health and welfare. It indicates that access to adequate food is fundamental for the physical and mental health of the population. It adds that any negative impact of the TLC on the quality, availability, or accessibility of food in Costa Rica could have direct consequences on the health and welfare of its inhabitants, contravening the right to health guaranteed by the Constitution. The TLC with the United States, by presenting potential risks and challenges for food security in Costa Rica, can be considered a violation of the constitutional principles that protect this fundamental right. It is imperative that any trade agreement aligns with the State's constitutional commitments to welfare and social justice, ensuring that food security and sovereignty are preserved and promoted for the benefit of all Costa Ricans. The Free Trade Agreement between Costa Rica and the United States, intended to foster economic integration and expand trade between both countries, faces critical challenges regarding the fundamental right to food security and sovereignty.
It points out an impact on local production. The TLC promotes a broad opening of the Costa Rican market to agricultural and food products from the United States. The high productive capacity and agricultural subsidies in the United States affect the economy of local Costa Rican farmers and producers, reducing native food production and compromising the availability of nutritious food in the country. It mentions food dependency. This trade agreement increases Costa Rica's dependence on food imports. This situation elevates the country's vulnerability to international price fluctuations and potential disruptions in the supply chain, threatening the continuous access to food for the Costa Rican population. It claims a loss of food sovereignty. The TLC restricts Costa Rica's capacity to implement policies that foster local production and protect small farmers. This undermines the principles of social welfare and social justice, impairing the country's food sovereignty, essential for its self-determination and food security.
It accuses effects on health and welfare. Access to adequate food is crucial for physical and mental health. The impacts of the TLC on the quality, availability, or accessibility of food in Costa Rica have direct repercussions on the health and welfare of the population, contravening the constitutional right to health. It maintains that the TLC with the United States affects food security and sovereignty in Costa Rica, constituting a violation of the constitutional principles that safeguard this essential right. It is imperative that trade agreements align with the State's constitutional commitments to welfare and social justice, ensuring that food security and sovereignty are preserved and strengthened for the benefit of all Costa Ricans. It indicates that it must address how the Free Trade Agreement (TLC) with the United States violates the fundamental rights stipulated in articles 7 and 21 of the Political Constitution of Costa Rica.
It notes that the cited article 7 of the Constitution establishes that the Constitution and laws of constitutional amendment have supremacy over any other legal provision or act of authority. The direct implication is that any treaty, law, or administrative provision, including the TLC, must be in full consonance with the Constitution. If any stipulation of the TLC were to oppose or undermine constitutional principles and rights, it could be interpreted as a violation of this article. For its part, article 21 of the Constitution guarantees the right to private property, with the proviso that it fulfills a social function and is not contrary to public welfare. This right implies limitations on the use and enjoyment of private property based on the collective interest and social justice. It insists that the TLC imposes restrictions on national autonomy. The TLC with the United States establishes a series of commitments and restrictions that could limit the capacity of the Costa Rican State to legislate and act in defense of the rights and interests of its citizens, particularly in economic, environmental, and labor matters.
If these limitations imposed by the TLC conflict with the supremacy of the Constitution, as established by article 7, a potential constitutional violation would exist. Regarding the impact on property and public welfare, it states that the TLC's provisions concerning foreign investment, intellectual property rights, and trade regulations may have an adverse impact on the right to private property and its social function. For example, if the TLC's intellectual property regulations raise the costs of medicines, limiting access to essential treatments, this could be considered contrary to public welfare, in tension with article 21 of the Constitution. Regarding the effects on sustainable development and social justice, by compromising the State's capacity to regulate in key areas for sustainable development and environmental protection or to guarantee fair labor conditions, the TLC could contravene the principles of social justice and collective welfare implicit in the Constitution.
This would have a direct repercussion on the guarantee of fundamental rights, such as the right to a healthy environment and dignified working conditions. Any provision of the TLC that undermines these fundamental rights could be subject to scrutiny and eventual challenge. The relationship, then, between the TLC with the United States and the fundamental rights enshrined in articles 7 and 21 of the Political Constitution of Costa Rica requires a meticulous analysis to determine whether said treaty harmonizes with the principles of constitutional supremacy and the social function of property. The protection of fundamental rights and the maintenance of national legislative sovereignty must be considered priorities in the interpretation and application of any international commitment acquired by the State. It insists that the Political Constitution, in its articles 7 and 21, enshrines essential principles that safeguard individual freedom and private property.
Article 7 establishes the supremacy of the Constitution and the mandatory respect for the rights and freedoms contained therein by laws and acts of authority. For its part, article 21 protects the right to private property, ensuring that no one can be deprived of their property except for reasons of public interest, through legally established procedure and with corresponding compensation. It maintains that the TLC, by imposing regulations and standards from an external agreement, can restrict the individual freedom guaranteed by article 7 by limiting the capacity of citizens and the Costa Rican State to legislate and make autonomous decisions in matters of trade, health, and the environment, among others. These restrictions represent a direct imposition on legislative sovereignty and national autonomy, contravening the principle of constitutional supremacy. Regarding the impact on the right to property, it points out that the TLC with the United States introduces regulations that affect the right to private property, especially in sectors such as agriculture, industry, and services.
For example, provisions relating to patents and intellectual property rights may result in the limitation of access to essential goods and services, as well as increased costs, de facto restricting the right to private property stipulated in article 21. These measures, by favoring foreign commercial interests, can lead to the indirect expropriation of national assets and resources without due process or adequate compensation. The claimant points out, once again, those actions that it seeks to challenge and insists that this challenge is grounded in the violation of the third paragraph of article 105 of the Constitution, since the process of approving the CAFTA by referendum exceeded constitutional limits. Likewise, it alleges a violation of the principle of legality, articulated in the first paragraph of article 11 of the Political Constitution, which establishes the obligation of every act of authority to conform to current legal norms.
This constitutional norm is essential to ensure that all actions of the State are carried out within a legal and ethical framework. Furthermore, this challenge highlights the infringement of the right to the protection of the interests of producers, consumers, and users, enshrined in article 46 of the Political Constitution. This right is fundamental for the development of an equitable economy and to guarantee that all parties involved in the economic process are treated with justice and equity. The principle of distributive justice, embodied in article 50 of the Political Constitution, has also been violated. This principle underscores the State's obligation to organize and stimulate production and to ensure an adequate distribution of wealth, which is essential for the achievement of a more just and egalitarian society. The violation of the principle of budgetary balance, established in article 176 of the Political Constitution, is another crucial aspect of this challenge.
This principle dictates that the expenses proposed by the State must not exceed probable income, thus ensuring responsible and sustainable fiscal management for the benefit of the entire population. Finally, the principle of administrative efficiency, enunciated in article 191 of the Political Constitution, has been compromised. This principle implies the obligation to administer resources and public affairs efficiently, effectively, and in the general interest. This challenge is also based on the violation of the constitutional principles of reasonableness and proportionality. These principles are fundamental to guarantee that the actions of the State are not only legal, but also just, adequate, and proportionate in relation to the ends they pursue. In summary, these constitutional violations injure the right of all inhabitants of the country to a dignified quality of life, in a healthy and ecologically balanced environment, and to the protection of their legitimate economic and social interests, both in their role as producers and as consumers and users.
It indicates, finally, that although throughout the entire reading of the CAFTA-RD Free Trade Agreement the term tariff—tax, tax and fiscal matter—is used four hundred forty-four times, from beginning to end, it is of interest to demonstrate its content due to what affects the approval of this treaty by a binding referendum, constitutionally prohibited, therefore citing articles 1.1: of the Initial Provisions, 2.1: of the Definitions of General Provisions, 3.2: on National Treatment, 3.3: on Tariff Elimination, 3.4: on Waiver of Customs Duties, 3.5: on Temporary Admission of Goods, 3.6: on Goods Re-imported after Repair or Alteration, and 3.7: on Duty-Free Importation of Commercial Samples of Negligible Value and Printed Advertising Materials. It states that, in Costa Rica, tariffs constitute taxes or duties applied exclusively to goods imported into the national territory. These taxes are set by the State in accordance with its trade policy.
As a member of the World Trade Organization (WTO), Costa Rica applies tariffs under the Most-Favored-Nation principle. This implies that the country cannot establish discrimination in tariff levels among the different members of the WTO, thus guaranteeing equitable treatment in international trade. Import Tariff Duties on goods in Costa Rica are established in the Central American Import Tariff (Arancel Centroamericano de Importación). These duties are expressed in ad-valorem terms, that is, as a percentage of the value of the imported good. This tariff regime is governed according to article 17 of Law 6986 of May 16, 1985, known as the Agreement on the Central American Tariff and Customs Regime (Convenio sobre el Régimen Arancelario y Aduanero Centroamericano), which was amended by law No. 7346 of June 7, 1993. The Central American Import Tariff serves as the key instrument containing the nomenclature for the official classification of goods susceptible to being imported into the territory of the States of the Central American region.
In addition to specifying import tariff duties, this tariff establishes the rules that regulate the execution of its provisions, ensuring a coherent and harmonized framework for the importation of goods. In general terms, a tariff is defined as the tax that must be paid for the importation of goods. This tax not only represents a source of income for the State but also functions as a tool of trade policy. Tariffs influence the flow and nature of imports, contributing to the protection of national industry, the balance of trade, or the regulation of prices in the local market. In that sense, the Central American regulations contain the term Import Tariff Duties, which they define as follows: "the levies contained in the Central American Import Tariff and whose chargeable event is the customs operation called importation." (Agreement on the Central American Tariff and Customs Regime, art. 2).
These taxes are called by the same Agreement "Central American Import Tariff" and are conceived, in their entirety, as "Annex A" of the Central American Tariff and Customs Regime. Customs regulations in the Central American sphere, in particular the Regulation to the Uniform Central American Customs Code (RECAUCA), play a crucial role in regulating regional trade. Within this regulatory framework, the importance of the concept of "duties and taxes" in the customs context is highlighted. Specifically, RECAUCA defines Import Tariff Duties (DAI) as an integral part of this concept, along with other taxes that are levied on the import and export of goods (RECAUCA, article 2). This definition, adopted by the Central American region, has particular significance for Costa Rica, given that the country has incorporated the concept of customs tax obligation into its domestic legislation. The DAI, as an essential component of customs duties and taxes, represents a key element in the foreign trade of the country and the region.
Its function goes beyond mere collection of fiscal revenue, as it also influences the regulation of international trade, the protection of local industries, and the balance of trade. RECAUCA, by standardizing the definition and application of the DAI and other related taxes, facilitates a more harmonized and predictable commercial environment within Central America. This uniformity is essential for the efficiency of regional trade, providing a clear and coherent framework for customs operations. In the case of Costa Rica, the integration of these principles and definitions into its domestic customs legislation reflects its commitment to regional cooperation and the strengthening of Central American trade. Furthermore, the adoption of these regulations in Costa Rican legislation demonstrates a proactive approach toward economic and commercial integration in the region. By aligning its customs practices with regional standards, Costa Rica not only fulfills its commitments as a member of the Central American community, but also optimizes its participation in the regional market, benefiting both national importers and exporters and trading partners in the region.
Currently, the General Customs Law of Costa Rica, Law No. 7557, defines the customs tax obligation as follows: "Article 53.- Customs tax and non-tax obligations. The customs obligation is constituted by the set of tax and non-tax obligations that arise between the State and private parties, as a consequence of the entry or exit of goods from the customs territory. The customs tax obligation is the legal bond that arises between the State and the taxpayer due to the occurrence of the chargeable event provided for in the law and is constituted by the duties and taxes payable on the import or export of goods. Unless otherwise provided, it shall be understood that what is regulated in this Law regarding the fulfillment of the customs tax obligation shall be applicable to its interest, fines, and surcharges of any nature. Non-tax obligations comprise non-tariff restrictions and regulations, the fulfillment of which is legally enforceable." The customs territory is defined by the General Customs Law as: "Article 2.- Territorial scope.
The customs territory is the land, water, and air space in which the State of Costa Rica exercises complete and exclusive sovereignty. Special customs controls may be exercised in the zone where the State exercises special jurisdiction, in accordance with article 6 of the Political Constitution and the principles of international law. Vehicles, transport units, and goods that enter or leave the national customs territory shall be subject to control measures specific to the National Customs Service and to the provisions established in this law and its regulations. Likewise, persons who cross the customs border, with or without goods, or those who transport goods across it, shall be subject to the provisions of the customs legal regime." It points out that, in this scheme, customs obligations would have a multiple object. First, because it would encompass tax obligations, which in turn include both customs-related taxes (DAI) and other internal taxes.
Second, because also included within the concept of customs obligation are all those obligations that do not have an economic character, such as those relating to the fulfillment of requirements, such as phytosanitary and zoosanitary permits and authorizations (mandatory technical notes). The claimant indicates that it is challenging the subjective actions detailed above, which, as a whole, are serving to formally supply the legality requirement for a set of provisions that, in its view, violate the material limits of Constitutional Law with respect to such relevant principles as the principle of legality, reasonableness, proportionality, and administrative efficiency. So that this Honorable Court may assess, among other points, the infringed rules and principles, as well as the proportionality and reasonableness of these provisions, it is worth recalling what it has reaffirmed on very diverse occasions in its judgments and what the Political Constitution establishes in its articles 50, 105, and 191, since it is strikingly noticeable that in this referendum call, ordinary rank has been conferred upon what our legal system considers extraordinary.
Costa Rica is a Social State of Law (Estado Social de Derecho), so the interpretation of public liberties must be framed within this. From the Social character of the State derives the active role that the State must play in order to procure "... the greatest welfare for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth...," as provided in article 50 of the Constitution, as well as the principle of national solidarity enshrined in article 74 of the Constitution. Consistent with these principles, the State assumes responsibilities in the socioeconomic sphere, and therefore cannot be indifferent to the problems facing society and, very particularly, less favored communities, with a redistributive function corresponding to it, on the contrary. From there, precisely, derives the constitutionality that this Court has reaffirmed on very diverse occasions of the various measures adopted by the State for the defense and protection of the weakest and most unprotected.
It is a matter of providing conditions of equality to the unequal and, in this way, guaranteeing them a dignified quality of life, with the consequent benefit for the community as a whole and the democratic regime of the country. In this function of guaranteeing social welfare, the adequate balance of the different forces that influence the functioning of the social whole is then required, including those that participate in the economic sphere. For this purpose, the State can introduce benefits for certain persons or social groups, creating situations of equality in favor of the unequal as a means of eliminating the discriminations they face. The Constitutional Chamber has considered that the State's power to "arbitrate compensatory measures that allow a greater realization of the right to equal opportunities and access to the benefits that our social system offers" is constitutionally valid (resolution no. 1608-96).
The establishment of these regimes is a means of solving socioeconomic problems to achieve equality. Therefore, these measures are constitutional (resolution no. 319-95). An aspect that cannot be forgotten when the protection that the legal system must provide to a certain sector is questioned, in this case JAPDEVA and the private sector in stowage, unstowage, handling of transient parking, truck and container repair shops, warehouses or fiscal deposits. A fundamental premise of the Costa Rican constitutional order is that the freedoms enshrined and protected in the Magna Carta are not unrestricted. Reasons of morality, public order, and protection of third parties not only allow but demand the intervention of the legislator to guarantee adequate coexistence in society. Precisely, the social order arises from the need to guarantee the common good and the greatest welfare of its inhabitants, in such a way that it allows the full development of the personality within society.
The State can therefore limit freedom of commerce, but said limitation must be adjusted to the principles of reasonableness and proportionality. The measures adopted in this sense cannot, therefore, be irrational or disproportionate, but must find protection in the Costa Rican constitutional order. It follows that the Social State of Law defines and limits the concept of freedom of enterprise. In this same order, it is appropriate to recall that the so-called "comprehensive development strategy" to balance disadvantageous situations of certain social groups can justify, even, the regulation of activities and the setting of prices for occupations considered strategic in our development, such as coffee and bananas. But in the present case, the challenged conducts directly and manifestly infringe the constitutional principle of legal reserve (reserva de ley) in tax and fiscal matters in relation to the referendum process provided for by article 105 of the Constitution.
It points out that it is indispensable that this Court declare the unconstitutionality of all actions that led to the approval of the referred treaty or, failing that, order the corresponding authorities to modify it, so that it conforms to the supreme constitutional principles that govern our Democratic and Social Rule of Law. It alleges that the need to protect the most vulnerable sectors and to foster inclusive and sustainable development must be the pillar on which the provisions of CAFTA are recalibrated. This action is crucial to re-establish a balance where the opportunities of an expanded market are not achieved at the expense of the social and economic welfare of the nation. The modification of CAFTA, or its declaration of unconstitutionality, must be guided by the fundamental values of legality, reasonableness, proportionality, equality, administrative efficiency, and budgetary balance.
Only in this way can it be ensured that economic progress goes hand in hand with social justice, respect for human rights, and the preservation of the environment, guaranteeing a prosperous and equitable future for all citizens of Costa Rica. It requests that this action be granted, because the challenged norms and actions directly infringe the constitutional principles of legal reserve, legal stability and certainty, legislative specialty and technique, protection of public interest and governmental function, and separation and balance of powers in administrative, fiscal, and tax matters, in relation to the referendum process, as provided in article 105 of the Political Constitution. This infringement negatively affects the right and power of the people to legislate, enshrined in the mentioned article, by calling a referendum to decide on a bill whose content encompasses administrative, tax, and fiscal matters.
This law and other challenged actions, by dealing with tariff and customs administration matters, directly affect the interests of the entire Nation. It produces negative effects on customs duties applied to imports, which grants a price advantage to goods produced in the country over imported ones and affects an important source of income for the Costa Rican State. This, in turn, affects the proper management of public income and expenditure, as well as the protection of the economic and social interests of the inhabitants of Costa Rica in their role as producers and consumers, as protected in article 46 of the Constitution. Therefore, these norms and actions contravene supreme constitutional principles such as legality, reasonableness, proportionality, equality, administrative efficiency, and budgetary balance. This situation injures the right of all inhabitants of the country to enjoy a quality of life in a healthy and ecologically balanced environment, jeopardizing the foundations of the Democratic and Social Rule of Law.
Drafted by Judge Castillo Víquez; and,
Considering:
This Chamber has stated, repeatedly, that the unconstitutionality action is a process with certain formalities, which must necessarily be fulfilled for this Court to validly rule on the merits of the matter. Article 75 of the Ley de la Jurisdicción Constitucional regulates standing (legitimación) to file actions of unconstitutionality and provides for different situations. The first paragraph requires the existence of a pending matter to be resolved, either in a judicial venue—including habeas corpus or amparo remedies—or in the administrative venue—in the procedure for exhausting this channel—, in which the unconstitutionality of the challenged norm is invoked as a reasonable means to protect the right or interest considered injured in the main matter. The second and third paragraphs regulate the direct action—no base matter is required—in the following cases: a) when, due to the nature of the matter, there is no individual and direct injury; b) it concerns the defense of diffuse interests (intereses difusos) or those that concern the community as a whole; and c) when the action is brought by the Procurador General de la República, the Contralor General de la República, the Fiscal General de la República, and the Defensor de los Habitantes.
In judgment no. 04190-95 of 11:33 a.m. on July 28, 1995, this Court specified that the unconstitutionality action is:
"(…) a process of an incidental nature, and not a direct or popular action, meaning that the existence of a pending matter to be resolved—either before the courts of justice or in the procedure to exhaust the administrative channel—is required to access the constitutional channel, but in such a way that the action constitutes a reasonable means to protect the right considered injured in the main matter, so that what is decided by the Constitutional Court has a positive or negative impact on said pending process, because it rules on the constitutionality of the norms that must be applied in that matter; and it is only by exception that the legislation allows direct access to this channel—assumptions of the second and third paragraphs of Article 75 of the Ley de la Jurisdicción Constitucional …”.
In accordance with the above, this Chamber has indicated that "the action process is, principally, of an incidental nature, so a matter pending resolution in the administrative channel—in the administrative impugnation procedure against the final act—or judicial channel is required for the action to prosper. Thus, only in exceptional cases established by law will the existence of this requirement not be necessary" (judgment no. 2018-018560 of 9:20 a.m. on November 7, 2018). It has also clarified that "the assumptions contained in paragraph 2 of Article 75 constitute an exception to the rule established in paragraph 1 (incidental channel) that must be carefully assessed" (judgment no. 2018-008413 of 9:20 a.m. on May 30, 2018).
The Ley de la Jurisdicción Constitucional, in its Article 3, provides that "The Political Constitution shall be deemed infringed when this results from the comparison of the text of the challenged norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles." Now, for this Court to consider the infringement configured and to be able to declare the unconstitutionality of the challenged norm or act, with the consequent annulment and expulsion from the legal system, the party bringing an unconstitutionality action has the burden of demonstrating how that provision infringes the Law of the Constitution and, additionally, must indicate why the claim should be upheld. This is termed by this Chamber as the burden of argumentation, that is, "that a norm which facially (sic) contradicts the Constitution shifts the burden of argumentation to those who maintain that there is actually no conflict between that norm and the Political Constitution; the opposite occurs if action is taken against a norm that upon first examination does not appear contrary to the Constitution, in which case it is the petitioner who must advance the arguments that persuade of the unconstitutionality" (see judgment no. 0184-95 of 4:30 p.m. on January 10, 1995). In a subsequent judgment, this Chamber stated, regarding the lack of exposition of arguments of unconstitutionality in matters of unconstitutionality actions, the following:
"The unconstitutionality action is filed with the argument that the challenged Decreto Ejecutivo is harmful, injures, and infringes the fundamental rights to a healthy and ecologically balanced environment, the right to health, and the international commitments executed with the Kyoto Protocol. Despite the opportunity granted to the petitioners, what the Procuraduría General de la República indicates is confirmed, that there is no concrete analysis of the provisions of the challenged Decreto Ejecutivo that are considered unconstitutional, but rather it is limited to establishing discrepancies in a generic and abstract manner against the entirety of the Reglamento, moreover against all activity carried out by Sugar Mills and Haciendas, as they maintain that they cause inconveniences in the quality of life and health of neighboring inhabitants, without specifying which arguments of constitutionality should be considered against each of the provisions or groups of norms of the challenged Reglamento. [...] The first paragraph of Article 78 of the Ley de la Jurisdicción Constitucional establishes the obligation to authenticate the writs filing actions of unconstitutionality, since it is deemed necessary that there be arguments put forward by a legal professional, which this Court does not rule out may correspond to a serious study of the technical and scientific background of a specific matter, given the diversity and universality of the norms of the legal system.
Unlike guarantee processes, that is, habeas corpus and amparo remedies, which any interested party can directly file before the constitutional jurisdiction in defense of their fundamental rights, generally against acts or omissions that injure them in their particular sphere (though not always, as in environmental cases), in processes for the defense of the Political Constitution (such as the unconstitutionality action), the legislator entrusted the authenticating attorney with a task whose demand is even greater, if you will, more elaborate and exhaustive, which they must embody in the filing brief by reason of their professional office, to demonstrate to the Court the injury to the constitutional norm by a norm of lower rank, undermining the principle of constitutional supremacy contained in Article 10 of the Political Constitution. Precisely the material and formal elaboration of the Law, as well as the other secondary provisions, entail an extremely costly process for the State, in which organized civil society has participated in many ways, for or against, and whose formation, approval, and promulgation procedures must not be analyzed lightly.
In this sense, this Chamber must recognize that there is a reduced space for this Court to remedy the manifest deficiencies of the legal professionals who authenticate the writs in this constitutional jurisdiction, without exposing the impartiality and analysis owed to each of the unconstitutionality actions." (judgment no. 2012-05285 of 3:03 p.m. on April 25, 2012).
The cited Article 78 of the Ley de la Jurisdicción Constitucional demands, in this sense, that the writ filing the action set forth "its grounds in a clear and precise manner." In judgment no. 2013-016944 of 2:30 p.m. on December 18, 2013, this Chamber made express reference to the requirement of due grounding of the filing writ—as an essential requirement for the admissibility of the action, according to the provisions of the mentioned article—in the following terms:
"II.- INADMISSIBILITY DUE TO LACK OF GROUNDING. In accordance with Article 78 of the Ley de la Jurisdicción Constitucional, the writ filing the unconstitutionality action must set forth the grounds in a clear and precise manner, with specific citation of the norms or principles considered infringed. This requirement does not translate into a mere formality, but into an essential requirement for admissibility, because by virtue of the pro sentencia principle—developed on other occasions by this Chamber—according to which, the admissibility requirements must be interpreted in a manner favorable to the action, furthermore, Constitutional Law is of preferential public order and in guarantee of its supremacy and validity there is a public interest by virtue of which obstacles to the admission and resolution on the merits of an action must be interpreted and applied restrictively. Thus, all procedural norms must be interpreted and applied in such a way that the issuance of the judgment is obtained, the foregoing not only facilitates the administration of justice, but also prevents the imposition of obstacles so as not to achieve it (see in the same sense, judgments numbers 93-5175, 3041-97, 01-06, 2874-06, 1622-08 and 2887-08).
Consequently, the lack of grounding of the action prevents the issuance of a duly reasoned judgment congruent with what is sought. Likewise, it is improper for this Chamber to rule on the merits of norms challenged in an action when the petitioner does not ground the reasons for the challenge, since this would imply conducting an abstract constitutional control by way of an academic exercise, which is not compatible with the purpose of a process of this nature." Finally, in vote No. 2020-000319 of 12:15 p.m. on January 8, 2020, this Court reiterated that:
"(…) given the formalism legally established for constitutional control processes, the argumentative burden in the processing of an unconstitutionality action falls on the petitioner, who must explain, without circumlocution, the contradiction existing between an infraconstitutional norm and the block of constitutionality, as well as the standing that assists them."
In the sub judice, the petitioner alleges an infringement of Article 105 of the Political Constitution, in relation to the discussion and approval process of the Dominican Republic-Central America-United States Free Trade Agreement (TLC), for having been submitted to a referendum. He claims that such international agreement includes matters that could not be submitted to a referendum, in accordance with the provisions of the third paragraph of that constitutional norm. Regarding the issue of standing, he expressly invokes the protection of diffuse interests (intereses difusos), as he adduces—principally—the protection of the "right of the people to legislate by referendum," of the "legislative power of the people," or "legislative sovereignty," in defense of the entire national community. Action is taken, consequently, in presumed defense of the power to legislate in concordance or in accordance with the provisions of the Political Constitution, that is, by reason of a generic interest in ensuring constitutional legality. This has not been admitted by this Chamber as a case of diffuse interest. What was recently provided in vote no. 2023-030482 of 1:22 p.m. on November 22, 2023, in which this Chamber indicated—in relevant part—the following, is fully applicable:
"(...) This Chamber has been specifying in its jurisprudence the scope and content of diffuse interests and has indicated, in this sense, that:
"Diffuse interests, although difficult to define and more difficult to identify, cannot be in our Law—as this Chamber has already stated—merely collective interests; nor so diffuse that their ownership is confused with that of the national community as a whole, nor so concrete that against them, determined or easily identifiable specific persons, or personalized groups, are identified, whose standing would derive, not from diffuse interests, but from corporate ones or those that concern a community as a whole. These are, therefore, individual interests, but, at the same time, diluted in more or less extensive and amorphous groups of people who share an interest and, therefore, receive a benefit or harm, actual or potential, more or less equal for all, which is why it is rightly said that they are equal interests of the groups of people who find themselves in certain situations and, at the same time, of each one of them. That is, diffuse interests share a dual nature, as they are simultaneously collective—being common to a generality—and individual, so they can be claimed in such capacity." (judgment no. 3705-93 of 3:00 p.m. on July 30, 1993) Likewise, in judgment no. 2007-02958 of 9:23 a.m. on March 2, 2007, this Court added:
"In relation to diffuse interests, which is the standing adduced by the petitioner, this Court has said that it is that personal interest related to a right or legal situation of a special and particular nature, which can be shared by other persons, all the interested parties forming a specific group or category. Thus, the violation of that right can affect everyone in general and/or each one in particular, hence any member of that grouping can file the action to protect the right considered injured. The interest, in these cases, is blurred, diluted (diffuse) among an unidentified plurality of subjects. Judgment number 03705-93, of 3:00 p.m. on July 30, 1993, illustrates what has been understood as diffuse interests; as does also judgment 360-99 of 3:51 p.m. on January 20, 1999:
\"It has been pointed out that it is a special type of interest, whose manifestation is less concrete and individualizable than that of the collective one just defined in the preceding considering, but which cannot become so broad and generic that it is confused with the one recognized to all members of society to ensure constitutional legality, since the latter—as has been repeatedly stated—is excluded from the current constitutional review system. It is therefore an interest distributed in each of the administered, mediate if you will, and diluted, but no less verifiable for it, for the defense, in this Chamber, of certain constitutional rights of singular relevance for the adequate and harmonious development of society. It is the special characteristics of these rights in themselves and not the particular situation before them of the subjects who may hold them, that is the key to the distinction and determination of the presence of the so-called diffuse interests as has been stated in different resolutions such as 03705-93 of three o'clock in the afternoon on July thirtieth for the right to the environment, number 05753-93 of two forty-five in the afternoon on November ninth of that same year for the defense of the historical heritage, and number 00980-91 of one-thirty in the afternoon on May twenty-fourth, nineteen ninety-one for electoral matters.\" In this sense, while that interest cannot be so broad and generic that it is confused with the right to ensure constitutional legality (which would imply the tacit establishment of a popular action not contemplated by the Ley de la Jurisdicción Constitucional), neither can it be so concrete that it allows an individual claim, since in such case, the standing would derive from the latter.
Examples of such interests are the right to a healthy and harmonious environment, the defense of the historical heritage, electoral matters, the defense of the right to health, and the oversight of public funds. This enunciation is nothing more than a simple description proper to its obligation—as a jurisdictional body—to limit itself to hearing the cases submitted to it, without it being possible in any way to understand that only those rights that the Chamber has expressly recognized as such can be considered diffuse rights. The foregoing would imply giving an undesirable turn to the reaches of the Rule of Law, and its correlative 'State of rights', which—as in the case of the Costa Rican model—starts from the premise that what must be express are the limits to liberties, since these underlie the human condition itself and therefore do not require official recognition." In the specific case, the petitioners allege that this action is formulated to "safeguard the independence of the Legislative Branch from the Executive and prevent the usurpation via executive decree of functions proper to the Asamblea Legislativa according to the Political Constitution" and that "the petitioners constitute a plurality of subjects who share the same goals among themselves, given that we defend coinciding interests such as the independence of the Asamblea Legislativa and the exclusivity of the exercise of legislative power in the hands of the parliamentary organ...", which allows verifying that, at bottom, it is intended to bring an action in safeguarding of a presumed generic interest in ensuring constitutional legality.
Therefore, what was stated in the partially transcribed precedents must be reiterated, in the sense that a diffuse interest "cannot be so broad and generic that it is confused with the right to ensure constitutional legality" (see Judgment No. 2007-02958, supra cited; as well as vote no. 2020-020839 of 9:20 a.m. on October 28, 2000).
Indeed, admitting the possibility of the petitioners to bring an unconstitutionality action under the conditions sought by them would imply—ultimately—recognizing the existence of a popular action, which, as the Sala Constitucional has indicated in its reiterated jurisprudence (see Judgment No. 2016-000787 of 9:05 a.m. on January 20, 2016), does not fit within the framework of the procedural powers that this Constitutional Court has to that effect, in its functions as ultimate interpreter and guardian of the Constitution." Considerations fully applicable to the case under study. It must be reiterated that admitting this action, in the terms in which it has been brought, would imply recognizing the existence of a popular action, which is improper in our system of constitutional justice.
IV.The petitioner also alleges a presumed defense of the right to a healthy and ecologically balanced environment, of the interests of consumers and users, of public health, and of the proper use and management of public funds, among other fundamental rights and constitutional goods, claiming that the said international agreement has caused a series of transformations, adjustments, or actions, in the normative or administrative sphere, that have negatively impacted such rights or goods. However, although the petitioner, throughout the filing writ, makes multiple and reiterated affirmations in this sense, the truth is that such affirmations are absolutely generic, abstract, imprecise, and indeterminate, but a proper identification and specification of such transformations, adjustments, or actions is not made, nor is it possible to demonstrate—from reading the filing writ—a direct, precise, and effective relationship between any specific norm of the said international agreement and a concrete affectation of the mentioned constitutional rights and goods. This lack of proper specification prevents this Chamber from being able to carry out an effective contrast and judgment of constitutionality. In short, the filing writ is not adequately grounded.
Moreover, although the petitioner could be ordered to remedy compliance with this requirement, in the sub judice, this procedure is considered otiose, not only because it entails re-elaborating the action, but also because Article 9, paragraph 1, of the Ley de la Jurisdicción Constitucional empowers the Chamber to reject outright any petition "manifestly improper or unfounded (manifiestamente improcedente o infundada)", as occurs in the present case.
As a corollary of the foregoing, it is appropriate to reject the action outright (de plano), as so ordered.
We separate from the majority decision of this Court and note our dissent in this matter, considering that the decision to reject this unconstitutionality action outright is premature. It is unquestionable that the unconstitutionality action is a process, "established for the purpose of guaranteeing the supremacy of the Political Constitution against norms or other provisions of a general nature and that, for that very reason, a set of formalities must be fulfilled, so that the Chamber can validly hear the merits of the challenge" as has been stated in the extensive jurisprudence of this Chamber. However, it is precisely the law itself that orders the treatment to be given to the different formalities and their eventual non-compliance, as is extracted from the text of Article 80 of the Ley de la Jurisdicción Constitucional, which states:
"Article 80.- If the formalities referred to in the two preceding articles are not completed, the President of the Chamber shall indicate by resolution which requirements have been omitted and shall order their fulfillment within three days (...)" In this matter, among other requirements, an adequate and sufficient grounding as required by Article 78 of the Ley de la Jurisdicción Constitucional is missing, making the instruction to the petitioner to remedy the detected omission unquestionably applicable. Similarly, it is in no way superfluous to put on record that—in our opinion—both the interpretation of Articles 78 and 79, as well as that of Article 80 itself of the Law governing this jurisdiction, must be broad for the benefit of those who come before this Chamber, so that access to constitutional justice is not unnecessarily limited.
The parties are instructed that if any paper documents have been provided, as well as objects or evidence contained in any additional electronic, informatic, magnetic, optical, telematic device, or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 working 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 "Reglamento sobre Expediente Electrónico ante el Poder Judicial" (Regulation on Electronic Case File before the Judicial Branch), approved by the Corte Plena in session N° 27-11 of August 22, 2011, Article XXVI, and published in Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session N° 43-12 held on May 3, 2012, Article LXXXI.
Por tanto:
The action is rejected outright. Judges Rueda Leal and Garro Vargas note their dissent and order the instruction provided in Article 80 of the Ley de la Jurisdicción Constitucional to be given.
Fernando Castillo V.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ingrid Hess H.
Alexandra Alvarado P.
Sentencia con datos protegidos, de conformidad con la normativa vigente SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve horas veinte minutos del dos de octubre de dos mil veinticuatro .
Acción de inconstitucionalidad promovida por [Nombre 001], mayor, casado, cédula de identidad nro. [Valor 001], asesor en gestoría aduanera y logística portuaria, vecino Limón, contra el Decreto Ejecutivo N°33717-MP, de 17 de abril de 2007, que dispuso proponer la convocatoria a referéndum para que la ciudadanía aprobara o improbara el “Tratado de Libre Comercio República Dominicana, Centroamérica-Estados Unidos” (TLC), expediente legislativo N°16047, según el texto dictaminado por la Comisión Especial de Asuntos Internacionales y Comercio Exterior de la Asamblea Legislativa y que fuera publicado en el Alcance N°2 a La Gaceta N°19 de 26 de enero de 2007 y poner dicha iniciativa en conocimiento de la Asamblea Legislativa para su decisión, conforme a lo dispuesto en el artículo 13 de la Ley N°8492, Ley sobre Regulación del Referéndum y otros.
Resultando:
Redacta el Magistrado Castillo Víquez; y,
Considerando:
Esta Sala ha señalado, de forma reiterada, que la acción de inconstitucionalidad es un proceso con determinadas formalidades, que necesariamente deben cumplirse para que este Tribunal pueda pronunciarse válidamente sobre el fondo del asunto. El artículo 75 de la Ley de la Jurisdicción Constitucional regula la legitimación para interponer acciones de inconstitucionalidad y prevé situaciones distintas. En el párrafo primero se exige la existencia de un asunto pendiente de resolver, sea en sede judicial –incluyendo los recursos de hábeas corpus o de amparo- o en la administrativa –en el procedimiento de agotamiento de esta vía-, en el que se invoque la inconstitucionalidad de la norma cuestionada, como medio razonable de amparar el derecho o interés que se considera lesionado en el asunto principal. En los párrafos segundo y tercero se regula la acción directa –no se requiere del asunto base-, en los siguientes supuestos: a) cuando por la naturaleza del asunto no exista lesión individual y directa; b) se trate de la defensa de intereses difusos o que atañen a la colectividad en su conjunto; y c) cuando la acción sea promovida por el Procurador General de la República, el Contralor General de la República, el Fiscal General de la República y el Defensor de los Habitantes.
En sentencia nro. 04190-95 de las 11:33 horas del 28 de julio de 1995, este Tribunal precisó que la acción de inconstitucionalidad es:
“(…) un proceso de naturaleza incidental, y no de una acción directa o popular, con lo que se quiere decir que se requiere de la existencia de un asunto pendiente de resolver -sea ante los tribunales de justicia o en el procedimiento para agotar la vía administrativa- para poder acceder a la vía constitucional, pero de tal manera que, la acción constituya un medio razonable para amparar el derecho considerado lesionado en el asunto principal, de manera que lo resuelto por el Tribunal Constitucional repercuta positiva o negativamente en dicho proceso pendiente de resolver, por cuanto se manifiesta sobre la constitucionalidad de las normas que deberán ser aplicadas en dicho asunto; y únicamente por excepción es que la legislación permite el acceso directo a esta vía -presupuestos de los párrafos segundo y tercero del artículo 75 de la Ley de la Jurisdicción Constitucional …”.
En consonancia con lo anterior, esta Sala ha indicado que “el proceso de acción es, principalmente, de naturaleza incidental, por lo que se requiere de un asunto pendiente de resolver en vía administrativa –en el procedimiento administrativo de impugnación contra el acto final- o judicial, para que prospere la acción. De esta manera, solo en casos excepcionales que la ley establece, no será necesaria la existencia de ese requisito” (sentencia nro. 2018-018560 de las 9:20 horas del 7 de noviembre de 2018). También ha aclarado que “los supuestos contenidos en el párrafo 2o. del artículo 75, constituyen una excepción a la regla establecida en el párrafo 1o. (vía incidental) que deben ser valorados cuidadosamente” (sentencia nro. 2018-008413 de las 9:20 horas del 30 de mayo de 2018).
La Ley de la Jurisdicción Constitucional, en su artículo 3, dispone que “Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales”. Ahora bien, para que este Tribunal tenga por configurada la infracción y pueda declarar la inconstitucionalidad de la norma o acto impugnado, con la consecuente anulación y expulsión del ordenamiento jurídico, quien promueva una acción de inconstitucionalidad tiene la carga de demostrar cómo esa disposición infringe el Derecho de la Constitución y, además, debe indicar por qué debe estimarse la demanda. Esto es denominado por esta Sala como la carga de la argumentación, es decir, que “una norma que facialmente (sic) sea contraria a la Constitución, vuelca la carga de la argumentación a quienes sostengan que en realidad no hay conflicto entre esa norma y la Constitución Política; lo contrario sucede si se acciona contra una norma que en primer examen no parece contraria a la Constitución, en cuya hipótesis es el accionante el que debe avanzar con los argumentos que convenzan acerca de la inconstitucionalidad” (véase la sentencia nro. 0184-95 de las 16:30 horas del 10 de enero de 1995). En una sentencia posterior, esta Sala expuso, en cuanto a la falta de exposición de los argumentos de inconstitucionalidad en materia de acciones de inconstitucionalidad, lo siguiente:
“La acción de inconstitucionalidad se interpone con el argumento de que el Decreto Ejecutivo impugnado es nocivo, lesiona e infringe los derechos fundamentales a un ambiente sano y ecológicamente equilibrado, el derecho a la salud y a los compromisos internacionales suscritos con el Protocolo de Kyoto. Pese a la oportunidad otorgada a los accionantes, se confirma lo que indica la Procuraduría General de la República, de que no existe un análisis concreto de las disposiciones del Decreto Ejecutivo impugnado que se consideran inconstitucionales, sino que el mismo se limita a establecer discrepancias de forma genérica y en abstracto contra la totalidad del Reglamento, más aún contra toda actividad que desempeñan los ingenios Azucareros y Haciendas, pues sostienen que causan inconvenientes en la calidad de vida y en la salud de los habitantes circunvecinos, sin concretar qué argumentos de constitucionalidad se deben tomar en cuenta en contra de cada una de las disposiciones o grupos del normas del Reglamento impugnado. […] El párrafo primero del artículo 78 de la Ley de la Jurisdicción Constitucional establece la obligación de autenticar los escritos de interposición de acciones de inconstitucionalidad, toda vez que se estima necesario que existan argumentos esgrimidos por un profesional en Derecho, que no descarta este Tribunal responda a un serio estudio del fondo técnico y científico de una determinada materia, dada la diversidad y universalidad de las normas del ordenamiento jurídico.
A diferencia de los procesos de garantías, es decir, los recursos de hábeas corpus y de amparo, que los puede interponer directamente cualquier interesado ante la jurisdicción constitucional en defensa de sus derechos fundamentales, generalmente contra actos u omisiones que le lesionan en su esfera particular (aunque no siempre como en los casos ambientales), en los procesos de defensa de la Constitución Política (como la acción de inconstitucionalidad), el legislador confió al abogado autenticante una labor cuya exigencia es aún mayor, si se quiere más elaborada y exhaustiva que debe plasmar en el libelo de interposición en razón de su oficio profesional, para demostrar al Tribunal la lesión a la norma constitucional por parte de una norma de menor rango, socavando el principio de supremacía constitucional contenida en el artículo 10 de la Constitución Política. Precisamente la elaboración material y formal de la Ley, así como de las demás disposiciones secundarias, suponen un proceso sumamente costoso para el Estado, en la que de muchas maneras para su elaboración ha participado la sociedad civil organizada a favor o en contra, y cuyos procedimientos de formación, aprobación y promulgación no debe analizarse a la ligera.
En este sentido, debe reconocer esta Sala que existe un reducido espacio para este Tribunal para socorrer las ausencias manifiestas de los profesionales en derecho que autentican los escritos en esta jurisdicción constitucional, sin exponer la imparcialidad y análisis que se debe a cada una de las acciones de inconstitucionalidad.” (sentencia nro. 2012-05285 de 15:03 horas de 25 de abril de 2012).
El citado artículo 78 de la Ley de la Jurisdicción Constitucional exige, en tal sentido, que en el escrito en que se interponga la acción se expongan “sus fundamentos en forma clara y precisa”. En sentencia nro. 2013-016944 de las 14:30 horas del 18 de diciembre de 2013, esta Sala hizo expresa referencia a la exigencia de debida fundamentación del escrito de interposición –como requisito esencial de admisibilidad de la acción, a tenor de lo dispuesto el mencionado ordinal- en los siguientes términos:
“II.- INADMISIBILIDAD POR FALTA DE FUNDAMENTACIÓN. De conformidad con el artículo 78 de la Ley de la Jurisdicción Constitucional, en el escrito en que se interponga la acción de inconstitucionalidad, se deberán exponer los fundamentos en forma clara y precisa, con cita concreta de las normas o principios que se consideren infringidos. Dicho requisito no se traduce en una mera formalidad, sino en un requisito esencial de admisibilidad, pues en virtud del principio pro sentencia –desarrollado en otras ocasiones por esta Sala- según el cual, los requisitos de admisibilidad deben interpretarse en sentido favorable a la acción, además, el Derecho Constitucional es de orden público preferente y en garantía de su supremacía y vigencia hay un interés público en virtud del cual los obstáculos para la admisión y resolución de fondo de una acción, deben interpretarse y aplicarse restrictivamente. Así las cosas, todas las normas procesales deben ser interpretadas y aplicadas de manera tal que se obtenga el dictado de la sentencia, lo anterior, no solo facilita la administración de la justicia, sino que además, evita que se impongan obstáculos para no alcanzarla (ver en igual sentido, las sentencias números 93-5175, 3041-97, 01-06, 2874-06, 1622-08 y 2887-08).
En consecuencia, la falta de fundamentación de la acción, impide el dictado de una sentencia debidamente motivada y congruente con lo pretendido. Asimismo, resulta improcedente que esta Sala se pronuncie por el fondo de normas cuestionadas en una acción, cuando el que acciona no fundamenta las razones por las cuales impugna, toda vez, que ello implicaría efectuar un control constitucional en abstracto a manera de ejercicio académico, lo que no es compatible con la finalidad de un proceso de esta naturaleza.” Finalmente, en el voto No. 2020-000319 de las 12:15 horas del 8 de enero de 2020, este Tribunal reiteró que:
“(…) dado el formalismo dispuesto legalmente para los procesos de control de constitucionalidad. la carga argumentativa en el trámite de una acción de inconstitucionalidad recae en el accionante, quien debe explicar, sin ambages, la contradicción existente entre una normativa infraconstitucional y el bloque de constitucionalidad, así como la legitimación que le asiste”.
En el sub judice, el accionante alega una infracción al artículo 105 de la Constitución Política, en relación con el proceso de discusión y aprobación del Tratado de Libre Comercio República Dominicana - Centroamérica - Estados Unidos (TLC), por haber sido sometido a referéndum. Afirma que tal convenio internacional incluye materias que no podían ser sometidas a referéndum, conforme a lo dispuesto en el párrafo tercero de tal norma constitucional. En cuanto al tema de la legitimación, invoca expresamente la protección intereses difusos, pues aduce -principalmente- la protección del “derecho del pueblo a legislar mediante referéndum”, de la “potestad legislativa del pueblo” o “la soberanía legislativa”, en defensa de toda la comunidad nacional. Se acciona, en consecuencia, en presunta defensa de la potestad de legislar en concordancia o de conformidad con lo dispuesto en la Constitución Política, sea, en razón de un interés genérico en velar por la legalidad constitucional. Lo que no ha sido admitido por esta Sala como un supuesto de interés difuso. Resulta de plena aplicación lo dispuesto, recientemente, en el voto nro. 2023-030482 de las 13:22 horas del 22 de noviembre de 2023, en que esta Sala señaló -en lo conducente- lo siguiente:
“(...) Esta Sala ha venido precisando en su jurisprudencia el alcance y contenido de los intereses difusos y ha señalado, en tal sentido, que:
“Los intereses difusos, aunque de difícil definición y más difícil identificación, no pueden ser en nuestra Ley -como ya lo ha dicho esta Sala- los intereses meramente colectivos; ni tan difusos que su titularidad se confunda con la de la comunidad nacional como un todo, ni tan concretos que frente a ellos resulten identificadas o fácilmente identificables personas determinadas, o grupos personalizados, cuya legitimación derivaría, no de los intereses difusos, sino de los corporativos o que atañen a una comunidad en su conjunto. Se trata, entonces, de intereses individuales, pero, a la vez, diluidos en conjuntos más o menos extensos y amorfos de personas que comparten un interés y, por ende, reciben un beneficio o un perjuicio, actual o potencial, más o menos igual para todos, por lo que con acierto se dice que se trata de intereses iguales de los conjuntos de personas que se encuentran en determinadas situaciones y, a la vez, de cada una de ellas. Es decir, los intereses difusos participan de una doble naturaleza, ya que son a la vez colectivos -por ser comunes a una generalidad- e individuales, por lo que pueden ser reclamados en tal carácter.” (sentencia nro. 3705-93 de las 15 hrs. del 30 de julio de 1993) Asimismo, en sentencia nro. 2007-02958 de las 9:23 hrs. del 02 de marzo de 2007, este Tribunal agregó:
“En relación con los intereses difusos, que es la legitimación aducida por el accionante, este Tribunal ha dicho se que se trata de aquel interés personal relacionado con un derecho o situación jurídica de naturaleza especial y particular, que puede ser compartido por otras personas, formando todos los interesados un grupo o categoría determinada. Así, la vulneración de ese derecho puede afectar a todos en general y/o a cada uno en particular, de ahí que cualquier miembro de esa agrupación puede interponer la acción para proteger el derecho que se estima lesionado. El interés, en estos casos, se encuentra difuminado, diluido (difuso) entre una pluralidad no identificada de sujetos. La sentencia número 03705-93, de las 15:00 horas del 30 de julio de 1993, ilustra lo que se ha entendido como intereses difusos; así como también la sentencia 360-99 de las 15:51 horas del 20 de enero de 1999:
"Se ha señalado que se trata un tipo especial de interés, cuya manifestación es menos concreta e individualizable que la del colectivo recién definido en el considerando anterior, pero que no puede llegar a ser tan amplio y genérico que se confunda con el reconocido a todos los miembros de la sociedad de velar por la legalidad constitucional, ya que éste último -como se ha dicho reiteradamente- está excluido del actual sistema de revisión constitucional. Se trata pues de un interés distribuido en cada uno de los administrados, mediato si se quiere, y diluido, pero no por ello menos constatable, para la defensa, en esta Sala, de ciertos derechos constitucionales de una singular relevancia para el adecuado y armónico desarrollo de la sociedad. Son las especiales características de éstos derechos por sí mismas y no la particular situación frente a ellos de los sujetos que puedan ostentarlos, la clave para la distinción y determinación de la presencia de los llamados intereses difusos tal y como se manifestado en distintas resoluciones como la 03705-93 de las quince horas del treinta de julio para el derecho al ambiente, la número 05753-93 de las catorce horas cuarenta y cinco del nueve de noviembre de ese mismo año para la defensa del patrimonio histórico y la número 00980-91 de las trece y treinta del veinticuatro de mayo de mil novecientos noventa y uno para la materia electoral." En este sentido, si bien ese interés no puede ser tan amplio y genérico que se confunda con el derecho a velar por la legalidad constitucional (lo que supondría la instauración tácita de acción popular no contemplada por la Ley de la Jurisdicción Constitucional), tampoco puede ser tan concreto que permita el reclamo individual, pues en tal caso, la legitimación derivaría de éste.
Ejemplos de tales intereses son el derecho a un ambiente sano y armonioso, la defensa del patrimonio histórico, la materia electoral, la defensa del derecho a la salud y la fiscalización de los fondos públicos. Esta enunciación no pasa de una simple descripción propia de su obligación -como órgano jurisdiccional- de limitarse a conocer de los casos que le son sometidos, sin que pueda de ninguna manera llegar a entenderse que solo pueden ser considerados derechos difusos aquellos que la Sala expresamente haya reconocido como tales. Lo anterior implicaría dar un vuelco indeseable en los alcances del Estado de Derecho, y de su correlativo "Estado de derechos", que -como en el caso del modelo costarricense- parte de la premisa de que lo que debe ser expreso son los límites a las libertades, ya que éstas subyacen a la misma condición humana y no requieren por ende de reconocimiento oficial.” En la especie, los accionantes alegan que esta acción se formula para "tutelar la independencia del Poder Legislativo respecto del Ejecutivo y evitar que se usurpen vía decreto ejecutivo funciones propias de la Asamblea Legislativa según la Constitución Política" y que "los recurrentes constituimos una pluralidad de sujetos que compartimos los mismos fines entre sí, dado que defendemos intereses coincidentes como es la independencia de la Asamblea Legislativa y la exclusividad del ejercicio de la potestad legislativa en manos del órgano parlamentario...", lo que permite verificar que, en el fondo, se pretende accionar en resguardo de un presunto interés genérico en velar por la legalidad constitucional.
Por lo que debe reiterarse lo señalado en los precedentes parcialmente transcritos, en el sentido que el interés difuso “no puede ser tan amplio y genérico que se confunda con el derecho a velar por la legalidad constitucional” (ver sentencia No. 2007-02958, supra citada; así como el voto nro. 2020-020839 de las 9:20 horas del 28 de octubre de 2000).
En efecto, de admitirse la posibilidad de los accionantes de plantear una acción de inconstitucionalidad en las condiciones pretendidas por estos, supondría –en definitiva- reconocer la existencia de una acción popular, la cual, como lo ha indicado la Sala Constitucional en su reiterada jurisprudencia (ver sentencia No. 2016-000787 de las 9:05 hrs. del 20 de enero de 2016), no se adecua al marco de las competencias procesales que al efecto tiene este Tribunal Constitucional, en sus funciones de intérprete último y guardián de la Constitución.” Consideraciones plenamente aplicables al caso en estudio. Debe reiterarse que admitir la presente acción, en los términos en que ha sido planteada, supondría reconocer la existencia de una acción popular, lo que resulta improcedente en nuestro sistema de justicia constitucional.
IV.El accionante también alega una presunta defensa del derecho a un ambiente sano y ecológicamente equilibrado, de los intereses de los consumidores y usuarios, de la salud pública y del debido uso y manejo de los fondos públicos, entre otros derechos fundamentales y bienes constitucionales, pues afirma que el referido convenio internacional ha provocado una serie de transformaciones, ajustes o actuaciones, en el ámbito normativo o administrativo, que han impacto negativamente sobre tales derechos o bienes. Ahora bien, aunque el accionante, a lo largo del escrito de interposición, hace múltiples y reiteradas afirmaciones en tal sentido, lo cierto es que tales afirmaciones resultan absolutamente genéricas, abstractas, imprecisas e indeterminadas, pero no se hace una debida identificación y concreción de tales transformaciones, ajustes o actuaciones, ni se logra evidenciar -de la lectura del escrito de interposición- una relación directa, precisa y efectiva entre alguna norma específica del referido convenio internacional y una afectación concreta a los mencionados derechos y bienes constitucionales. Tal falta de debida concreción impide que esta Sala puede realizar un efectivo contraste y juicio de constitucionalidad. En definitiva, el escrito de interposición no está adecuadamente fundamentado.
Por lo demás, aunque se podría prevenir al accionante que subsane el cumplimiento de tal requisito, en el sub judice, dicho trámite se considera ocioso, no solo porque supone volver a elaborar la acción, sino, también, porque el artículo 9, párrafo 1º, de la Ley de la Jurisdicción Constitucional faculta a la Sala para rechazar de plano cualquier gestión “manifiestamente improcedente o infundada”, como ocurre en el presente caso.
Como corolario de lo anterior, procede rechazar de plano la acción, como así se dispone.
Nos separamos del criterio de la mayoría de este Tribunal y salvamos el voto en este asunto, por considerar que la decisión de rechazar de plano esta acción de inconstitucionalidad es prematura. Es incuestionable que la acción de inconstitucionalidad es un proceso, “instaurado con el propósito de garantizar la supremacía de la Constitución Política frente a normas u otras disposiciones de carácter general y que por esa misma razón deben cumplirse un conjunto de formalidades, a efecto de que la Sala pueda válidamente conocer el fondo de la impugnación” como se ha señalado en la amplia jurisprudencia de esta Sala. Sin embargo, es precisamente la propia ley la que ordena el tratamiento que debe darse a las distintas formalidades y a su eventual incumplimiento, como se extrae del texto del artículo 80 de la Ley de la Jurisdicción Constitucional que señala:
“Artículo 80.- Si no se llenaren las formalidades a que se refieren los dos artículos anteriores, el Presidente de la Sala señalará por resolución, cuáles son los requisitos omitidos y ordenará cumplirlos dentro de tercero día (…)” En este asunto, entre otros requisitos, se echa de menos una fundamentación adecuada y suficiente tal y como lo exige el artículo 78 de la Ley de la Jurisdicción Constitucional, por lo que resulta de incuestionable aplicación la prevención al accionante para que remedie la omisión detectada. De igual forma, no sobra en absoluto dejar sentado que –en nuestro criterio- tanto la interpretación de los artículos 78 y 79 como la del propio 80 de la Ley que rige esta jurisdicción, debe ser amplia en beneficio de quienes acuden a esta Sala, de modo que el acceso a la justicia constitucional no resulte innecesariamente limitado.
Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión N° 27-11 del 22 de agosto del 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión N° 43-12 celebrada el 3 de mayo del 2012, artículo LXXXI.
Por tanto:
Se rechaza de plano la acción. Los magistrados Rueda Leal y Garro Vargas salvan el voto y ordenan hacer la prevención del artículo 80 de la Ley de la Jurisdicción Constitucional.
Fernando Castillo V.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ingrid Hess H.
Alexandra Alvarado P.
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