Constitutionality of solidarity contribution on Judicial Branch pensionsConstitucionalidad de la contribución solidaria sobre las pensiones del Poder Judicial

Review of the Document *CO* Res. No. 2024028000 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at eleven hours and zero minutes on the twenty-sixth of September of two thousand twenty-four.

An unconstitutionality action filed by JOHNNY MEJÍAS ÁVILA, identity card No. 9-044-592, in his capacity as President of the Board of Directors, and ERIC ENRIQUE LORÍA CAMPOS, identity card No. 1-811-0019, in his capacity as General Manager with powers of generalissimo attorney-in-fact without limit of sum, both of the Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), legal entity ID No. 3-004-045564, against the provisions set forth in Articles 1, 2, subsection d); 3; 4, subsection b); 5, and 7; all of Law No. 9796, of December 5, 2019, called “Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution,” and, consequently, the provisions set forth in Article 236 bis, subsection a), of the Ley Orgánica del Poder Judicial.

Considering:

1.- By brief filed in the Secretariat of the Chamber on April 30, 2020, the petitioners request a declaration of unconstitutionality of Articles 1, 2, subsection d); 3; 4, subsection b); 5, and 7, all of Law No. 9796 of December 5, 2019, called “Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution,” through which, in turn, subsection a) of Article 236 bis of the Ley Orgánica del Poder Judicial was reformed. In the first place, they explain that they have standing to file the action, as they do so in representation of the active and retired associates of the cooperative (COOPEJUDICIAL R.L.); that is, in defense of the interests of said collectivity (Article 75, second paragraph, of the Ley de la Jurisdicción Constitucional). By way of background, they explain that the Pension Fund of the Supreme Court of Justice is autonomous and dates back to 1939, thus it is even older than the CCSS pension regime. They note that the employer's contribution is the same as what any employer contributes in a tripartite regime. They state that it is not a regime charged to the national budget; it is self-sustaining and, as of the date this matter was filed, it does not have any financial deficit. They reiterate that it is an autonomous and self-sufficient regime. They explain that there are only 41 pensions over five million colones. Public employees contribute four times more than the CCSS regime throughout their working life, and as retirees, they contribute 11% of their retirement pension; therefore, if well managed, it is hard for it to founder. They indicate that 70% of the bulk of the pensions do not exceed one and a half million colones (as they range between 350,000.00 colones and 1,000,000.00 colones). Hence, it is not true that luxury pensions exist in the Judicial Branch. The Judicial Branch retiree contributes 13% plus 5.5% to the CCSS, plus income tax. They state that no other retiree from any other regime today contributes more than the judicial retiree. However, they indicate that with the fiscal package law, they must contribute 35%, meaning it amounts to 75% of the retirement pension, which means the existing pensions are being impoverished, as more than 60% of the retirement pension is taken away, which is confiscatory (even though the law limited it to 55%). In addition, one must contribute 5 colones per thousand to sustain the cost of the Fund's Administrative Board. They point out that this attacks the fund and proposes a contribution that is unconceivable and unsustainable. They add that the consolidated rights of retirees are also violated, as well as the right to a pension. They refer to the challenged norms. They explain that the Ley Orgánica del Poder Judicial, in its Articles 244 to 242, regulated the Judicial Branch's pension and retirement regime. Through Law No. 9697 (sic) of December 20, 2019, Law No. 7333, that is, the Ley Orgánica del Poder Judicial, was reformed. They indicate that said law introduced drastic changes in the Judicial Branch's pension regime and other regimes, violating the rights and consolidated situations in favor of active and retired judicial employees of the regime. Article 1 of the law refers to its purpose. Article 2 sets out which pension regimes would be affected by the so-called special solidarity contribution law, and among these is the Judicial Branch regime (specifically indicated in subsection d). Numeral 3 sets out the purposes of the law and is important because therein the Legislative Assembly justified the reason for the law and indicated that it was to protect the other pension regimes and establish an equality that would generate their sustainability. That is, an autonomous and self-sustaining regime, such as that of the Judicial Branch (already mistreated by other recent laws), must now enter into making a special contribution for its efficiency to sustain other less efficient regimes and with special contributions smaller than those made by Judicial Branch retirees, grossly altering the life projections that these retired persons had made methodically and orderly in their old age, which is neither fair nor compliant with the legal system. They note that Article 4 of the challenged law defines the parameter based on which (in excess of that indicator) the special contribution will be calculated and paid. For its part, they mention that Article 7 reformed numeral 236 bis, subsection a), of the Ley Orgánica del Poder Judicial of November 29, 1937. They allege that this law produced a change to the detriment of the rights of retired judicial employees. Furthermore, they indicate that this modification to the current regime did nothing but raise the percentages of contribution to the regime, which makes the law confiscatory, as well as disproportionate and unjust. They indicate that the sum of all the different contributions and impacts to which the Judicial Branch's pension regime has been subjected generates globally an enormous burden that violently, unjustly, and grossly modifies the final amount that the person will receive as a pension. All this causes anguish, insecurity, and deterioration in the quality of life of the pensioners. Regarding the fundamental rights violated, they indicate that first of all, the workers' right to a pension is violated. They maintain that although such rights can be limited, such limitations must be imposed in accordance with the provisions of international regulations. They mention that Law No. 9796 violates the provisions of international instruments that protect the fundamental right to a pension, such as, for example, Article 25 of ILO Convention No. 102, Numeral 5 of ILO Convention No. 118, Articles 22 and 25 of the Universal Declaration of Human Rights, and Numeral 16 of the American Declaration of the Rights and Duties of Man, which refer to the protection of benefits or insurance, principally, for old age. They also point out that what is provided in ILO Convention 102 is especially important, which seeks the protection of workers as contributors to social security regimes, such as pension funds; in particular, they refer to Article 29, point 1, subsection a), which indicates to whom the benefit indicated, in turn, in numeral 28 must be guaranteed. They allege that through the law under study, the Judicial Branch Pension Fund could not be modified “(…) first because it harms the superior value of international norms, second and most importantly, it must be interpreted with the PRO HOMINE principle in favor of the retirees, that is, the non-affectation of their fundamental human rights, and even less to regulate aspects that are not inherent to the same pension regime, but rather to be diverted to sustain public finances or other pension regimes that have been neglected and are inefficient in their management, punishing the fund that has been efficient and, worse, the workers who with part of their salary month by month built the fund in question (…).” Therefore, they consider that in this case, Article 7 of the Political Constitution is violated, which indicates that public treaties, international conventions, and concordats duly approved by the Legislative Assembly shall have superior authority over laws. Likewise, they accuse that the provisions of Numeral 33 of the Political Constitution are violated, which establishes the right to equality and non-discrimination. They mention that Judicial Branch employees contribute 13.5% of their salary for their pension, while the rest of the population contributes 3.8%. And retirees continue with a similarly and equally disparate contribution relative to the rest of the pension regimes. In addition to this, they reiterate that the Judicial Branch pension regime is self-sufficient and does not need help for its sustainability, placing it in an unequal situation compared to the rest of the pension regimes. They maintain that the reform, then, specifically affects one group over any other pension regime, and it is precisely the judicial retirees, who, due to the amount of deductions, special contributions, CCSS, and taxes, have their assets progressively and rapidly diminished. They explain that the special contribution established in the challenged law is not rational and creates inequalities for all pensioners “(…) generating deterioration in their economic condition, by setting confiscatory deduction levels, which are not supported by technical and/or specialized studies involving all the socioeconomic, actuarial, and quality-of-life factors of the contributors to the regime, generating an economic deterioration of great proportions for the contributors to the regime (…).” They maintain that, in accordance with the principle of legal equality, equal legal treatment must be given to those who are in the same legal position or category. On the other hand, those placed in different positions, situations, or categories must receive differentiated legal treatment. From this, it follows that not all legal treatment must be uniform; the difference in situation may be real or, indeed, determined by law. They indicate that this determination is subject to the principle of reasonableness, and to be valid, the difference must be reasonable. Otherwise, one incurs an odious discrimination for being unreasonable and, as such, creates discrimination that is not in accordance with the principle of equality. They mention that there are two elements to determine whether or not there is a violation of the principle of equality, namely, the parameter of comparison (which allows establishing that between two or more persons there is an identical situation and that, therefore, produces discriminatory treatment devoid of any objective and reasonable justification) and, secondly, the reasonableness of the differentiation, which establishes the principle of reasonableness as a parameter of constitutionality. They indicate that constitutional jurisprudence considers the principle of reasonableness to be one of the integral principles of Constitutional Law. They explain that the principle of constitutional supremacy is what allows constitutional norms to be determined as superior to ordinary ones, and within that principle lies the principle of reasonableness (as a sub-principle), which serves as a parameter for evaluating legal acts and its existence is oriented towards respecting the values expressed in the Constitution. They state that, following this principle, laws must conform to the constitutional sense formed by the reasons considered by the constituent, by the proposed ends, by the fundamental legal values, and by the means provided. They indicate that precisely the need for any act to conform to the constitutional sense is what allows us to speak of the principle of reasonableness derived from the principle of constitutional supremacy. Thus, then, when the jurist locates a norm that is not in accordance with constitutional principles, it is clear that they must make a judgment on its reasonableness in order to determine its irregularity or not with the Magna Carta in accordance with the demands of the principle of constitutional supremacy. Reasonableness is intended to avoid those abusive acts of the State that contravene the principles established in the Constitution. Thus, then, they explain, constitutional supremacy becomes a guarantor of the Political Constitution, not only as a set of norms of superior hierarchy, but also as an order of principles that reflects the social feeling of a given people. They allege that, being clear that the principle of reasonableness has constitutional rank and cannot be exempt from analysis in every State decision or law formation, it must be understood, then, that Law No. 9796 flagrantly, directly, and grossly attacks this principle. They maintain that the relationship between the principle of reasonableness and the principle of equality poses as an essential problem the discernment of a normative decision and how it would allow unequal treatment to be reasonable. That is precisely the unresolved question in the questioned law, by virtue of the fact that its foundation is inconsistent and even burdensome, in a disproportionate manner, for the sector of judicial retirees, without there being any graduality that allows applying the regulations in a manner respectful of the stages of permanence in the regime. They indicate that for the differentiation to be constitutionally legitimate, it is not enough that the end pursued by it is legitimate, but it is also essential that the legal consequences resulting from such distinction be adequate and proportionate to said end, so that the relationship between the measure adopted, the result produced, and the end sought by the legislator overcomes the proportionality test in constitutional court, avoiding especially burdensome or excessive results. They maintain that precisely the differentiation measure contained in the law is burdensome and excessive, given that the subjects included in it are considerably dissimilar; hence the effects are disproportionate in the strict sense and contrary to the Political Constitution. They mention that the legislator cannot, ignoring the evident (at least within their logic of reform) deficiencies and negligence of the pension fund, dimension its solution on the backs of a single generation of workers (now retirees) and distribute the effects among the related sectors, among them the State itself, whose objective responsibility for the control and regulation of this regime was sidelined. They add that the regulations under study also contradict the provisions of Numeral 34 of the Constitution, which clearly indicates that no law shall be given retroactive effect to the detriment of any person. They maintain that the principle of non-retroactivity is not only formal but also, and above all, material, so that it is violated not only when a new norm or the reform of a previous one legitimately alters acquired rights or consolidated situations under the protection of the previous norm, but also when the effects, interpretation, or application of the latter produces an unreasonable or disproportionate injury to the holder of the right or situation that it itself enshrines. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired good or right from a person's assets. They explain that acquired rights are those that definitively enter the assets of their holder and consolidated legal situations are those that can no longer ever be modified. They state that, according to constitutional jurisprudence, a retirement or pension technically translates into an acquired right. They allege that the reform established by Law No. 9796 affects the acquired rights of all those who have already contributed and to whom pensions have been granted with the guidelines dictated for the Pension Fund in the Ley Orgánica del Poder Judicial, so those rights must continue just as they were granted before its enactment. They indicate that, otherwise, legally granted rights would be violated, thereby affecting the economic and family situation, security, and quality of life of the majority of older adults who depend on that right for their sustenance. They indicate that, by imposition of the law, pensioners are being led to lower income levels without considering that a large majority of them have been people who had to sacrifice time, years of study, and training to obtain an income commensurate with their condition and improve their standard of living. By caprice of State policies and by decision of the Deputies, the socioeconomic situation of these retirees was abruptly affected, equating their condition to quintile 5 as fixed by the Instituto Nacional de Estadísticas y Censos de Costa Rica (which excludes pensioners and domestic service). They state that the Deputies, in their discussions, referred to an actuarial study, which indicates that pensions should not be granted in amounts exceeding ¢2,600,000.00 colones, but the recommendation made by the actuarial study is that in the future the maximum amount of pensions should be that amount; that is, the study at no time indicates that the fixing is retroactive. They maintain that the current situation of the granted pensions must be respected, considering the acquired rights. Furthermore, they state that the provisions of Numeral 73 of the Political Constitution are violated, which endows pensions and retirements with the character of a constitutional right. This is the fundamental right to a pension derived from the social security regime, which cannot be conditioned after its recognition as an acquired right. They warn that the reform to the Judicial Branch's pension regime flagrantly contravenes the principle of legal certainty, which translates into the trust of every citizen in valid and current legal systems, so that there cannot be breaks in this system that dilute their rights. It is one of the fundamental principles of every democratic constitutional legal system, and it refers to the need for citizens to know, at all times, what to expect in their relations with the State and with other private individuals. It refers to the trust that citizens can have in the observance and respect of situations derived from the application of valid and current norms. They state that this parameter of constitutionality in pension regimes forms part of our legal system and, in this way, means “protection and trust in all citizens who maintain periods of stay in pension regimes.” They indicate that in the case of the reform of the Judicial Branch Pension Fund, this variable is aggravated, as it is a mandatory fund to which workers in the sector must submit regardless of their will; that is, it is the path to be followed through which the State has decided that their fundamental right to a dignified and fair retirement is protected. In this framework of ideas, the variations imposed by the project shatter that trust and security of judicial employees in view of the overwhelming difference posed in the reforms, introducing a contribution for the sake of solidarity for the sustainability of the other pension regimes. They point out that this mandatory nature is also abusive and arbitrary (another of the purposes of the principle of legal certainty), insofar as it aggravates the socioeconomic conditions of judicial retirees at will and without regard for their rights and expectations. This is because it is a mandatory regime which, freed from any legal certainty control, would allow the variation of conditions in the most indiscriminate ways, regardless of the will of the retirees. This mandatory nature of the regime obliges the State to be much more zealous in the variations made to this type of regime, which, in the specific case, involve the stability and future of more than sixteen thousand Costa Rican families. They note that, in the case of the retirees, the situation is extremely burdensome, as they have developed a life project acquiring economic commitments and, suddenly, abruptly, their conditions are modified with severe impacts on their property sphere. They explain that in the challenged law “(…) deduction percentages of 35% are fixed for those pensions exceeding 6 base salaries of the lowest position in the Judicial Branch, approximately the base is ¢2,530,000.00 and on the excess a 35% is charged, 45% on the excess of ¢3,200,000, and 55% on the excess of ¢4,200,000.00 (approximate data) percentages fixed without any technical study, therefore they are arbitrary and confiscatory, appropriating moneys that by acquired rights belong to the retirees and pensioners. On the other hand, it is established that these percentages are applied on gross amounts, which generates a double levy on the moneys received by the retirees and pensioners, since this deduction is applied on mandatory deductions that each retiree and pensioner must pay, such as income tax and the 13% percentage of mandatory contribution to the regime, thus becoming a double tax rate on the same benefit which, from every point of view, is improper and evidences the tax voracity intended to be imposed on retirements and pensions (…).” They state that the Constitutional Chamber has recognized the right to a pension as a fundamental right integrated within the right to social security. They indicate that this same jurisdiction has pronounced on the importance of clearly establishing several constitutional principles such as solidarity, the relative intangibility of assets, and, of course, proportionality and reasonableness. They indicate that the law in question violates the principle of solidarity, since it changes the circumstances for a specific sector of the population with a non-progressive but disruptive reform, which generates poverty and patrimonial impairment. They maintain that the right to a pension, as a human right, under the conditions in which the retirees have been enjoying it, cannot be modified, having become an acquired right. They indicate that the reform should have been done in a reasoned and proportionate manner and not in a disruptive and abrupt manner, that is, disproportionate and abusive of the rights of judicial employees and regime retirees, thereby affecting consolidated legal situations and acquired rights. They indicate that the law in question “(…) violates the principles of non-retroactivity, legal certainty, since it violates fundamental rights recognized in Article 7 of our Political Constitution, that is, fundamental human rights, the principle of equality, as well as the principles of reasonableness and proportionality because, on the amount of the pension that is used for the calculation of the pension, all deductions and special contributions are applied, eventually reaching more than 55% of the gross amount of the pension. This makes these deductions and special contributions unreasonable and absolutely disproportionate, contravening the human rights treaties and international law signed by our country (…).” They point out that, while the principle of mutability of the legal system exists, it cannot go against acquired rights and consolidated legal situations. Furthermore, this must be progressive, proportionate, and reasonable. They allege that the reform under study is unconstitutional because “(…) they modify consolidated situations of Judicial Branch retirees, who see their rights impaired in an abrupt manner through a disruptive, disproportionate, and unreasonable reform, which generates a deterioration in the calculation of their pension, increases the amounts of deductions and special contributions above any other tax burden in our legal system, moreover calculating the maximum limit of deductions at 55% of the gross retirement pension, making, then, we insist, the reform disproportionate, unreasonable, abrupt, and placing its members in a situation of open patrimonial impairment (confiscatory), affecting the continuity of life projects, the dignity of retired persons, and legal certainty (…).” Finally, they indicate that the regulations in question violate the principle of non-confiscation (Article 40 of the Constitution). They point out that this principle constitutes a limit to the exercise of taxing power, linked to the principles of contributory capacity and progressivity; besides representing a mechanism for protecting the right to private property. They mention that Article 3 of the law speaks of creating a contribution and this, being a tax burden on the amount of the pension, has a fiscal nature and, due to its structure, has a confiscatory content regarding the assets of retired judicial servants and those who will retire. Then, they state that “(…) the reform imposes confiscatory conditions regarding the calculation of the pension. The calculation is no longer on 100% of the salaries earned in the last 24 months but became 82% on the last 240 salaries, according to the law known as the fiscal package. That is, a calculation difference of 18 years and a percentage difference of 18%. To the result of that residue, an increased contribution of 2% must be applied; by the same law it went from 11% to 13%, from that the other statutory charges must be subtracted, for example income tax, pension fund (contributions continue), and EESS, leaving an available amount below 53% of the calculation base, and on the gross of the retirement pension, this new fiscal charge introduced by the law we challenge must also be calculated. At the rate things are going, retirees will not receive any pension and, in addition, they will have to pay the State charges from where only the State knows, since the only income of retirees is their retirement pension; who knows how far the state voracity will go. This variation is confiscatory and contrary to our constitutional system, since it subjects Judicial Branch retirees to a penalty of confiscation, expressly prohibited by Article 40 of the Political Constitution (…).” They argue that the measures proposed by the reform lead to a reduction in the pension conditions of judicial workers of nearly 70% of their right, reduced to 55% by mandate of the law itself. They indicate that the confiscatory penalty introduced by the law under study violates the principles of equality and contributory capacity. They request that Numerals 1, 2, subsection d); 3; 4, subsection b); 5, and 7; all of Law No. 9796 of December 5, 2019, called “Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution,” and Article 236 bis, subsection a), of the Ley Orgánica del Poder Judicial be declared unconstitutional. As a precautionary measure, they request that the entry into force of the challenged law be temporarily suspended until this action is resolved.

2.- By ruling of 10:57 a.m. on May 5, 2020, the President of the Chamber advised the petitioners to provide a certified copy of the bylaws of the petitioner cooperative; documentation important for assessing the admissibility of the action.

3.- By a written submission provided to the Chamber on May 11, 2020, the petitioners comply with the advice issued by ruling of May 5, 2020, and provide the required certified bylaws.

4.- By ruling of the Presidency of the Chamber of 11:37 a.m. on May 12, 2020, the present unconstitutionality action is given course and a hearing is granted to the Procurador General de la República, the Minister of Finance, the Minister of Planning and Economic Policy, and the President of the Supreme Court of Justice.

5.- By writings provided to the Chamber on May 15 and 18, 2020, Héctor Luis Ruiz Salas and José Marcelino Silva Silva, in their condition as retirees of the Judicial Branch, request to be considered as active coadjuvants in the present proceeding.

6.- The legal notices –corresponding to the present unconstitutionality action– were published in Judicial Bulletins Nos. 093, 094, and 095 of May 18, 19, and 20, 2020.

7.- By a document submitted to the Chamber on May 25, 2020, Gustavo Adolfo Ramírez Redondo, in his capacity as a retiree of the Judicial Branch (Poder Judicial), requests to be considered as an active coadjuvant in this proceeding.

8.- Through a memorial submitted to the Chamber on May 28, 2020, Julio Alberto Jurado Fernández, in his capacity as Attorney General of the Republic (Procurador General de la República), responds to the hearing granted and expressly states the following: "(...) II.- REGARDING THE STANDING (LEGITIMACIÓN) OF COOPEJUDICIAL TO CHALLENGE THE VALIDITY OF THE IMPUGNED NORMS The resolution that admitted the action of unconstitutionality on which this report is based (issued by the Presidency of the Constitutional Chamber at 11:37 a.m. on May 12, 2020) ordered that 'The standing (legitimación) of the plaintiff party stems from Article 75, paragraph 2, of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), since it alleges to act in defense of the corporate interests of the associated persons—active and retired—of Coopejudicial R. L.' Despite the foregoing, this Advisory Body considers that cooperatives, even when they have members who could be affected by the norms impugned in this action, do not have standing to directly challenge provisions such as those sought to be annulled. Admitting the standing of cooperatives to bring actions of unconstitutionality against any normative provision that may affect their members (whether those provisions relate to public employment, private employment, retirement, or any other matter) would imply attributing to these associative-based entities purposes that are not contemplated in the Law of Cooperative Associations (Ley de Asociaciones Cooperativas), No. 4179 of August 22, 1968. Regarding the purposes of cooperative associations, Articles 1 and 2 of the cited Law No. 4179 provide the following: 'Article 10.- The constitution and operation of cooperative associations is declared to be of public convenience and utility and of social interest, as they are one of the most effective means for the economic, social, cultural, and democratic development of the country's inhabitants.' 'Article 20.- Cooperatives are voluntary associations of persons and not of capital, with full legal personality (personalidad jurídica), of indefinite duration and limited liability, in which individuals organize themselves democratically in order to satisfy their needs and promote their economic and social improvement, as a means of overcoming their human condition and their individual formation, and in which the motive of work and production, distribution and consumption, is service and not profit.' Although the second of the transcribed norms establishes that cooperatives have among their purposes the promotion of the economic and social improvement of their members, this does not give them standing to challenge the constitutionality of any provision that harms the latter in their personal sphere, because that would imply excessively easing the access of cooperatives to constitutional jurisdiction. The foregoing is reinforced by the provisions of Article 12, subsection f), of the Law of Cooperative Associations (Ley de Asociaciones cooperativas), according to which 'No cooperative is permitted (...) To develop activities for which it is not legally authorized.' This Advisory Body shares the reasoning of this Chamber in its ruling No. 2014-20446 at 9:30 a.m. on December 17, 2014, reiterated in No. 7175-2017 at 9:05 a.m. on May 17, 2017, to the effect that cooperatives have standing to bring actions of unconstitutionality provided that it involves the challenge of norms or provisions that affect that core of rights or interests that constitutes the raison d'être and the cohesive factor of the group. In this case, the defense of the retirement rights of officials and former officials of the Judicial Branch does not affect the core of rights or interests that constitute the raison d'être of COOPEJUDICIAL. Nor is that defense related to the cohesive factor of the group. Therefore, we estimate that this action is inadmissible, due to lack of standing (legitimación) of the plaintiff. Note even that not all members of COOPEJUDICIAL are judicial officials or former officials, since that cooperative admits the membership of other public officials who have never worked for the Judicial Branch, which confirms that safeguarding the retirement rights of only some of its members cannot constitute the cooperative's raison d'être (...) III.- ON THE VALIDITY OF THE REFORMS MADE TO THE SPECIAL SOLIDARITY CONTRIBUTIONS (CONTRIBUCIONES ESPECIALES SOLIDARIAS) IMPOSED ON ECONOMIC BENEFITS FOR RETIREMENT. To analyze the arguments raised by the plaintiff cooperative, we have decided to divide them into four groups, according to whether they relate to 1) the principle of equality; 2) the principle of non-retroactivity; 3) the fundamental right to a pension; and, 4) the principles of reasonableness, proportionality, non-confiscation, and inviolability of assets. 1).- On the possible violation of the principle of equality The plaintiff states that Law No. 9796, by reducing the exempt bracket for the payment of the special, solidarity, and redistributive contribution applicable to persons retired from the Judicial Branch system, infringes the constitutional principle of equality, because it does not take into account that the members of that system make a higher contribution, compared to that required in other pension systems, which would justify—in the case of the Judicial Branch system—maintaining the exempt contribution brackets that existed before the reform that is sought to be annulled. In this regard, we must indicate that the adjustments to the special solidarity and redistributive contribution referred to in the law whose constitutionality is challenged were applied to all the special substitute pension systems, taking into account the characteristics of each one. Among the systems affected are the General Pension System Charged to the National Budget (Régimen General de Pensiones con Cargo al Presupuesto Nacional), the National Teachers' Pension System (Régimen de Pensiones del Magisterio Nacional), the Communications Retirements and Pensions System (Régimen de Jubilaciones y Pensiones de Comunicaciones), the Public Works and Transport Employees' Retirements and Pensions System (Régimen de Jubilaciones y Pensiones de Empleados de Obras Públicas y Transportes), the National Registry Pension System (Régimen de Pensiones del Registro Nacional), the Pacific Electric Railway Employees' Retirements and Pensions System (Régimen de Jubilaciones y Pensiones de los Empleados del Ferrocarril Eléctrico al Pacífico), the Military Band Musicians' Pension System (Régimen de Pensiones de Músicos de Bandas Militares), and the Ministry of Finance and its Dependencies Pension System (Régimen de Pensiones de la Secretaría de Hacienda y sus Dependencias), among others. In the judgment of this Attorney General's Office, it is not possible to invoke the principle of constitutional equality to request that the reforms under study not be applied to the Judicial Branch system. Certainly, the contribution of members to the Judicial Branch system is 13% of their salary, a percentage that is higher than that contributed by members to the IVM pension system, which is 4%; however, the economic benefits of the IVM system are very different from those of the Judicial Branch system. For example, the maximum cap for IVM system pensions is l.612,851.00 without deferral; while the initial maximum cap of the Judicial Branch pension system is 4,258,000.00, equivalent to ten times the base salary of the lowest-paid position in the Judicial Branch (art. 225 of the LOPJ), a salary that in the second half of 2019 was 425,800.00. The pension granted by the IVM system ranges from 43% to 52.5% of the average salary of the last 20 years (article 23 of the IVM Regulation); while the pension granted by the Judicial Branch system is 80% of the average of the last 20 years of service (article 224 LOPJ). The solidarity and redistributive contribution applicable to the Judicial Branch system with the entry into force of the impugned norms starts at 2,554,800.00 (equivalent to six base salaries of the lowest-paid position in the Judicial Branch, a salary that in the second half of 2019 is 425,800.00), a sum that cannot even be reached by IVM system pensions, whose maximum cap without deferral is—as we indicated—l,612,851.00. As can be seen from the above data, it is not possible to compare the Judicial Branch system with the IVM system to affirm that, by virtue of the higher contribution made to the former, the impugned special solidarity contribution is not justified. They are different systems, with also different benefits and conditions, so no possible comparison allows validating an injury to the principle of constitutional equality. On the other hand, if what is sought is to compare the contribution made to the Judicial Branch system with that of other special systems, such as, for example, the systems charged to the national budget administered by the National Directorate of Pensions (Dirección Nacional de Pensiones), we must point out that the contribution to the latter is 16% of the worker's salary (article 11 of Law No. 7302 of July 8, 1992), which exceeds the 13% contributed to the Judicial Branch system. This is so, despite the fact that the special solidarity contribution imposed on the special systems charged to the national budget starts at 2,226,000.00 (8 times the lowest base salary paid in the Public Administration, which in the second half of 2019 was 278,250.00), a sum that is lower than the 2,554,800.00 (6 times the lowest salary paid in the Judicial Branch, which in the second half of 2019 was 425,800.00) at which the Judicial Branch system contribution starts. It must also be taken into account that the State, as employer, contributes to the Judicial Branch system 14.36% of the salary of judicial officials; while to the general IVM system and to the special systems charged to the national budget, it contributes only 5.25% of the salaries of its members. This situation shows that far from there being discriminatory treatment to the detriment of the Judicial Branch system, there are provisions that favor that system, and that imply a greater State expense for its maintenance. It is important to point out that although this Chamber has admitted the existence of special pension systems that substitute the IVM system, it has also resolved, on repeated occasions, that for the validity of those systems it is necessary that '1) the contribution of the State as such be equal in percentage terms on salaries for all systems, including those of private enterprise: and 2) the contribution of the State as an employer in the diverse systems not be higher than that imposed on other employers, including private employers, nor in any case lower than that of all servants or workers'. So it was held in ruling No. 846-92 at 1:30 p.m. on March 27, 1982, and reiterated in rulings 5236-99 at 2:00 p.m. on July 7, 1999, 5753-99 at 10:36 a.m. on July 23, 1999, 6987-99 at 4:21 p.m. on September 8, 1999, and in 3052-2000 at 9:28 a.m. on April 14, 2000. The foregoing is important to demonstrate that the higher contribution made by the State as an employer to the Judicial Branch system (equivalent to almost ten percentage points more than what it makes to other systems) not only shows that there is no discriminatory treatment to the detriment of that system, but also that this higher contribution could contradict precedents of this Chamber. In summary, this Advisory Body does not consider that there are reasons to affirm that the impugned norms are unconstitutional for violating the principle of equality to the detriment of the members of the Judicial Branch system. 2.- On the possible violation of the principle of non-retroactivity. With respect to this issue, we must indicate that in our context, various special pension systems substituting the IVM system have been created through legislation. The existence of these special systems has been repeatedly endorsed by this Chamber, for example, in its ruling number 846-92 already cited. Based on the foregoing, this Attorney General's Office has indicated that the Legislative Assembly has not only the possibility, but the duty, to adopt the necessary measures to guarantee the sustainability of the various special pension systems, through the approval of the necessary laws to achieve that objective. We have also pointed out that among the limits imposed on the legislative power to regulate special pension systems is that of respecting the acquired rights and consolidated legal situations of the beneficiaries of those systems; however, with respect specifically to the law under analysis, this Attorney General's Office does not observe that the impugned norms entail a violation of the principle of non-retroactivity of the law, since the changes in the solidarity and redistributive contribution provided for in Law No. 9796 govern for the future, and do not carry with them the obligation to return sums received beforehand, so there is no injury to the principle of non-retroactivity. This Chamber has already addressed the issue in the following terms: 'The appellants argue that the exception norms are given retroactive effect and that the acquired rights of that group are affected, specifically, the amount they receive as a pension or retirement, which has been diminished by establishing a contribution. They also point out that this additional burden breaks the 'tripartite and egalitarian' balance enshrined in constitutional numeral 73. In the Chamber's view, the criticism of retroactivity is unfounded, because the law, perhaps with deficient technique, has provided for the obligation of contribution by pensioners and retirees ex tunc and not ex nunc, as in no way are they being forced to make these contributions on monies already received as retirement or pension. Towards the future, the rules are different and the amount of the contribution, which seeks to compensate the imbalances of the past and guarantee the survival of the system, in no way affects acquired rights, as this same Chamber has expressed that there is a fundamental right to a pension or retirement, but not to the amount of the same, which could vary due to the requirements of the system, provided that these variations do not affect the essential content of the right.' (Ruling number 5236-99 at 2:00 p.m. on July 7, 1999. In the same sense, ruling No. 6987-99 at 4:21 p.m. on September 8, 1999 can be consulted). Likewise, this Attorney General's Office has indicated that the administration of any social security system requires flexibility to adequately orient the limited resources it has available, and that this flexibility is affected when the legislator is inhibited from modifying both the initial conditions and the benefits currently being paid. Based on this, it is not possible to admit that the norms that established the conditions of a particular system be petrified, because doing so could even lead to the collapse of a country's Social Security system, which would harm not only persons who have already attained pensioner status, but also those who have justified expectations of obtaining—in the future when one of the protected contingencies arises—economic benefits from Social Security. (Opinion C-147-2003 of May 26, 2003, reiterated in Opinion C-181-2006 of May 15, 2006, in OJ-021-2007 of March 9, 2007, and in OJ-082-2015 of August 3, 2015). 3.- On the possible violation of the fundamental right to a pension. While a fundamental right to a pension exists, broadly consolidated in this Chamber's jurisprudence, this Court has also specified that there is no right to have the benefit granted be for a specific amount, as the pension or retirement can be varied according to circumstances, whether to reclassify the benefit by increasing or decreasing it, when the contribution of the beneficiaries is not sufficient to cover their quota in the cost of the system...'. (Rulings 1925-91 at 12:00 p.m. on September 27, 1991, 2379-96 at 11:06 a.m. on May 17, 1996, and 3250-96 at 3:27 p.m. on July 2, 1996). In the specific case of special contributions, this Chamber, in its ruling No. 3250-96 at 3:27 p.m. on July 2, 1996, indicated that such contributions are not unconstitutional, as they find a basis in the social nature of the right to retirement, a nature that falls within the principles forming the Social State of Law, enshrined in Article 50 of the Political Constitution. In the aforementioned resolution, this Chamber ratified the validity of a contribution imposed on pensioners of the National Teachers' System (Régimen del Magisterio Nacional). On that occasion it indicated the following: '(...) the contribution fixed at the charge of pensioners of the National Teachers' Pension System (Régimen de Pensiones del Magisterio Nacional) in Article 12, and the exclusion from said contribution as an acquired right in Transitory I, both of Law Number 7268, do not injure Article 34 of the Political Constitution, because they form part of the list of limitations that have validly formed part of the fundamental right to retirement that the plaintiff has held since joining and from which he cannot escape because he acquired them along with it. (...) The manner in which Article 12 of Law 7268 regulates the contribution at the charge of pensioners of the National Teachers' System does not contravene Article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only flaw that was noted when the Legislative Consultation was processed in due time and that Parliament undertook to amend), thereby leaving practically intact a sufficient amount, in the Chamber's judgment, to guarantee the effective enjoyment of the right to retirement, and second, because the amounts charged for the various excesses that occur in specific cases have a clear protective and uniforming purpose for the benefit of the group of persons for whom the system was established; that is, they are directed towards the social well-being of all or the vast majority of the members for whom the system was conceived. This may entail that in some retirement systems, redistributive norms exist for those cases that can be called, if you will, extraneous to the system's raison d'être and that must, therefore, undergo a process of uniformization to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the system's beneficiaries, consequently having to make—if it is their desire to continue enjoying the system's benefits—a greater contribution for receiving a greater consideration compared to the persons taken into account when designing the system—in this case, the teachers—who receive a substantially lower salary, and, consequently, so is their retirement or pension. It is just then—due to the system's solidarity nature—to set a sufficiently high maximum amount that allows including the higher salaries of the fund's own beneficiaries and to subject to greater participatory requirement those who are above it, as they come from obligations not contemplated within those taken into account when setting the system's bases.' In summary, nothing opposes, within the constitutional framework, the legislator introducing reforms to the Social Security system and regulating or modifying, for the future, the normative elements that legal operators must take into account to recognize the pension amount, which it does in exercise of the powers that the Political Constitution itself has entrusted to it and which entail the margin of discretion inherent in the legislative function, which allows it to validly introduce the reforms that, according to economic needs and social conveniences, as well as the evolution of time, it deems necessary for the effectiveness and guarantee of the right to a pension. Furthermore, we estimate that, definitively, the guarantees that the Constitution contemplates in favor of pensioners cannot be interpreted in the sense of curtailing the legislator's exercise of the function that the Constitution itself has entrusted to it, since that would be to petrify the dynamic exercise of legislating on specific groups of individuals, to the frank detriment of generality. On the other hand, a transversal argument in the action of unconstitutionality we are addressing consists of affirming that the special contribution imposed on the members of the Judicial Branch system has the objective of financing systems that have been poorly managed. In this line, it is indicated that '.... an autonomous, self-sustainable system like that of the Judicial Branch, which has already been quite mistreated by other recent laws, now due to its efficiency must make a special contribution to sustain other less efficient pension systems...' and it is added that 'the resources from the special contribution will be used to be diverted to sustain public finances or other pension systems that have been neglected and not efficient in their management...' On this point, we must indicate that Article 236 bis of the LOPJ, in its last paragraph, clearly establishes that 'The resources obtained from the special, solidarity, and redistributive contribution, established in this law, shall enter the Retirement and Pension Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial)...' which refutes the objection alluded to. Certainly, Law No. 9836 of March 26, 2020, provided that the resources contributed by the contribution imposed on the systems referred to in Article 4 of Law 9383, Framework Law for the Special Contribution of Pension Systems (Ley Marco de Contribución Especial de los Regímenes de Pensiones), of July 29, 2016, must be used to grant pensions from the non-contributory system (régimen no contributivo) directed at persons in extreme poverty; however, the Judicial Branch system is not among those mentioned in said Article 4, so the resources from its contributions remain within the Judicial Branch system. 4.- On the possible violation of the principles of reasonableness, proportionality, non-confiscation, and inviolability of assets. With respect to this issue, we must indicate that the special solidarity and redistributive contribution regulated in Law No. 9796 is neither excessive nor unreasonable, especially if one takes into account that in the case of the Judicial Branch system, this contribution applies only after the economic benefit received by the pensioner exceeds the sum equivalent to six base salaries of the lowest-paid position in the Judicial Branch, which is equivalent to 2,554,800.00. In other words, pensioners whose economic benefit is less than 2,554,800.00 are not subject to the special solidarity contribution sought to be annulled, apart from the fact that this contribution is staggered, or progressive, which allows affirming that the legislator respected the constitutional principle of proportionality. We also estimate that the impugned provisions respect the principle of non-confiscation, since the total deductions from the pension amount (including the special solidarity contribution, the contribution to the system, income tax, and any other mandatory deduction) cannot exceed 55% of the gross pension amount. So it is established by Law No. 9796 itself, in its Article 5, according to which 'In no case shall the sum of the solidarity contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions, that rightfully correspond to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.' Note that to reach or exceed 55% of withholdings on the gross pension amount, the amount of the latter must be very high, especially considering that no special solidarity contribution is paid on the first 2,554,800.00. It is important to point out, in any case, that the proof of the irrationality of a norm lies with the party alleging it, and in this matter, no such irrationality has been demonstrated. On the subject, this Chamber has indicated that 'To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide evidence or at least elements of judgment on which to base its argument, and the same procedural burden corresponds to whoever rebuts the arguments of the action, and failure to comply with these requirements makes the allegations of unconstitutionality unacceptable. The foregoing is because it is not possible to conduct a reasonableness analysis without the existence of a coherent line of argument that is supported by evidence.' (Constitutional Chamber, ruling No. 5236-99 at 2:00 p.m. on July 7, 1999, reiterated, among many others, in No. 10153-2001 at 2:44 p.m. on October 10, 2001, and in No. 14392-2016 at 9:05 a.m. on October 5, 2016). Moreover, according to constitutional jurisprudence, the examination of reasonableness, as an integral part of constitutionality control, is limited to excluding from the legal system those acts that are totally unreasonable, but not to substituting for or judging the public authorities in the weighing of elements that may make one option more suitable than another (resolutions 1064-2009 at 3:07 p.m. on January 28, 2009, 9042-2010 at 2:30 p.m. on May 19, 2010, and 10986-2012 at 3:05 p.m. on August 14, 2012). Now then, if in a specific case the exempt amount of the contribution is not respected (which, in the case of the Judicial Branch, as we already indicated, is 2,554,800.00) or withholdings exceeding 55% of the gross pension amount are made, this could not be attributed to the content of the impugned norms, but rather to their erroneous interpretation or improper application, which should be reviewed through the amparo appeal (recurso de amparo) and not in an action of unconstitutionality. The following jurisprudential citations corroborate this position: '... the plaintiff bases her claim on the harm caused to her by the "interpretation and application" of the impugned regulations, which is why we are not facing the conditions for an action of unconstitutionality, but for an amparo appeal, based on what is dictated in Article 73 subsection b.) governing this Jurisdiction—which provides that the action of unconstitutionality is applicable against subjective acts if they are not susceptible to the remedies of habeas corpus or amparo—by virtue of which, it is concluded that the content of this challenge should have been the object of an amparo appeal because it deals not with constitutional conflicts, but with claims against administrative actions susceptible to being addressed in that other avenue, as provided in Article 29, last paragraph of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional)' (Constitutional Chamber. Ruling No. 1160-94 at 10:30 a.m. on March 2, 1994). '...The improper application of the law or its erroneous interpretation in the specific case is a matter proper to the amparo appeal and not to the action of unconstitutionality, as Article 29 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción constitucional) clearly states'. (Constitutional Chamber ruling No. 5966-94 at 3:54 p.m. on October 11, 1994, reiterated, among others, in No. 13421-2004 at 2:06 p.m. on November 26, 2004, and in No. 5965-2014 at 2:45 p.m. on May 7, 2014). In another of its arguments, the plaintiff cooperative states that there are no studies supporting the need for the reform to the special, solidarity, and redistributive contribution made through Law No. 9796. On this issue, we must indicate that the need to reduce public spending originating from the payment of economic benefits related to the special pension systems, as well as to balance those systems that have a Fund, is public and notorious. Even so, we must point out that for the approval of the challenged law, legal and economic studies were indeed conducted by the Legislative Assembly and the Superintendency of Pensions (Superintendencia de Pensiones). In this sense, on folios 463 to 484 of legislative file No. 21035 (which culminated with the approval of Law No. 9796), the Legal Report AL-DEST131.1-199-2019, of August 26, 2019, prepared by the Department of Studies, References, and Technical Services of the Legislative Assembly, is recorded. Likewise, on folios 510 to 549 of that file, the Economic Report AL-DEST-IEC-079-2019, of September 3, 2019, prepared by that same Department, is recorded. And, finally, on folios 1167 to 1171 of the file, the report rendered by the Superintendency of Pensions through official letter SP-1025-2019, of October 24, 2019, is recorded. IV.- CONCLUSION Based on the foregoing, this Attorney General's Office considers that the present action is inadmissible due to lack of standing (legitimación) of the plaintiff cooperative. Regarding the merits of the matter, we suggest that this Chamber declare the action of unconstitutionality on which this report is based without merit (...)".

9.- By a brief submitted to the Court on June 1, 2020, Fernando Cruz Castro, in his capacity as President of the Supreme Court of Justice, responds to the hearing granted and expressly states the following: "(...) I.- Preliminary Consideration: This Presidency deems it appropriate to indicate that, by virtue of the powers assigned by Ley 9544 to the Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, the administration of the pensions of the servants of the Judicial Branch falls to it, in its capacity as a body of maximum deconcentration with instrumental legal personality. Due to the foregoing, by virtue of the transfer of the unconstitutionality action carried out by the resolution of the competent Court, I proceed to respond to it, but with the understanding that it should be assessed whether to transfer the action to the indicated body, so that it may also pronounce on the matter. The response provided by this Presidency is based on the position adopted by the Supreme Court of Justice regarding the incidence of the then bill on the organization and functioning of the Judicial Branch, and with the understanding that it severely, disproportionately, and unreasonably impacts retired judicial persons and, above all, those who exercise the judiciary, in accordance with the considerations that will be indicated below. II.- Background: 1). Through official letter number AL-20035-OFI-0043-2017, of July thirty-first, two thousand seventeen, received that day, the Legislative body submitted a consultation on the Affirmative Majority Opinion of July twenty-seventh, two thousand seventeen, regarding the text of bill number 19.922, called "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa." Said bill contemplates the creation of a "special solidarity contribution" (contribución especial solidaria) obtained from the pensions or retirements already granted and to be granted. By virtue thereof, in the session of the Full Court number 26-17, held on August seventh, two thousand seventeen, it was agreed to make an express indication to the Legislative Assembly that "The Court issues a negative opinion and opposes the bill consulted, as it impacts the organization, structure, and functioning of the Judicial Branch." 2). In official letter N° HAC-35-2019 of May 30, 2019, Licda. Flor Sánchez Rodríguez, Area Head of the Comisión Permanente Ordinaria de Asuntos Hacendarios of the Legislative Assembly, requested the opinion of the Supreme Court of Justice on the bill called "Ley para fijar topes equitativos a las pensiones de lujo, rediseñar y redistribuir los recursos de la contribución especial solidaria y crear la figura de la Jubilación Obligatoria Excepcional," file N° 21.035. The consultation was sent for study to Judge Roxana Chacón Artavia, who in a note dated June 14 of that year rendered the respective report, which was made known to the Full Court in session number 024-2019 of June 17, 2019, article XV. In said session, it was agreed to deem the report by Judge Chacón rendered and to make it known to the Comisión Permanente Ordinaria de Asuntos Hacendarios of the Legislative Assembly, in response to the consultation made, with the express indication that the consulted bill does interfere with the organization and functioning of the Judicial Branch. Likewise, the aforementioned bill was sent for consultation on two subsequent occasions, whose reports were rendered by Judge Roxana Chacón Artavia and made known in sessions 39-19 and 47-19, held on September 16 and November 11, both of 2019, articles XIII and XV, respectively. On those occasions, it was also agreed that the consulted bill did affect the organization and functioning of the Judicial Branch. (See attached certification). 3). In official letter N° AL-CPOECO-615-2019 of October 18, 2019, Licda. Nancy Vílchez Obando, Area Head of the Comisión Permanente Ordinaria de Asuntos Económicos of the Legislative Assembly, requested the opinion of the Supreme Court of Justice on the bill called "Ley para la contribución solidaria de los pensionados de lujo," file No. 21.537. The consultation was sent for study to Judge Orlando Aguirre Gómez, who in a note received in the General Secretariat of the Court on November 11, 2019, rendered the corresponding report, which was made known to the Full Court in session 0472019 of November 11, 2019, article XVI. In that session, it was agreed to deem the report rendered and to make it known to the Comisión Permanente Ordinaria de Asuntos Económicos of the Legislative Assembly, in response to the consultation made, with the express indication that the consulted bill does affect the organization and functioning of the Judicial Branch. II.- On the merits of the action: a). Ley 9796 "Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria" in its numeral 1 establishes that its purpose is to contribute to public finances by "redesigning" the maximum pension caps and the pension exempt from the "special solidarity contribution" (contribución especial solidaria), established among other pension systems, that of the Judicial Branch. On the other hand, as inferred from article 3, its purposes are: 1. To grant continuity and applicability to the solidarity contribution as a contribution to achieve the sustainability of pensions; 2) to contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in tax burdens; and 3) to provide sustainability to the pension systems through new contributions. Despite what was stated above regarding the purpose and ends, neither from a comprehensive reading of the challenged regulations can the course that the mandatory and special contributions from the different systems subject to that law will take be deduced, the phrase "and redistribute the resources..." from the title is noteworthy, since originally the bill intended to deposit the mandatory and special contributions for a period of ten years into a "special fund" created by the Ministry of Finance (Ministerio de Hacienda), to be used for the payment of the country's internal and external debt. b) With respect to article 4, subsection b), it establishes that the retirements and pensions derived from the Judicial Branch's pension and retirement system (régimen de jubilaciones y pensiones del Poder Judicial) will be subject to the special solidarity contribution, created in Ley number 9544 which reformed the Judicial Branch's pension and retirement system, with the exception of those whose amount does not exceed six base salaries of the lowest paid position in said branch. It should be noted that Ley 9544 reformed the Judicial Branch's pension and retirement system; among other modifications, it created the special solidarity contribution mentioned in article 4 of reference, which can be verified from article 236 bis of the current Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial). In relevant part, that article 236 bis added by Ley 9544 establishes: "Special, solidarity, and redistributive contribution of pensioners and retirees. In addition to the common contribution established in the preceding article, pensioners and retirees, whose benefits exceed the amounts to be set, shall contribute in a special, solidarity, and redistributive manner, in accordance with the following table: a) On the excess of the cap established in article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess. (...)" Article 225 referred to in the numeral partially transcribed in the previous paragraph establishes that no retirement shall be greater than ten times the base salary of the lowest paid position in the Judicial Branch; which, in accordance with the stated article 236 bis, determines that the special contribution would be applied on the excess of those ten base salaries, this until the entry into force of Ley 9796; since, as indicated, only those retirements or pensions that do not exceed six base salaries of the lowest paid position in the Judicial Branch will be exempt from the special contribution. This represents a degradation in the final amount received by a retired or pensioned person, or that another person could receive upon becoming deserving of these fundamental rights, since the exemption range for the special contribution was shortened with the reform to article 236 bis of the Organic Law of the Judicial Branch, effected by the challenged law. The foregoing was communicated to the Legislative Branch in response to the consultation analyzed by Judge Roxana Chacón Artavia, through the agreement of the Full Court taken in session number 24-19, held on June 17, 2019, article XV, which in relevant part indicates the following: "B) THE SPECIAL, SOLIDARITY, AND REDISTRIBUTIVE CONTRIBUTION IS ALREADY INCORPORATED IN THE ORGANIC LAW OF THE JUDICIAL BRANCH. With the Reform of the Judicial Branch Pension and Retirement System, an article 236 bis was introduced, through Ley No. 9544, of April 24, 2018, establishing a special, solidarity, and redistributive contribution for pensioners. "The article states: In addition to the common contribution established in the preceding article, pensioners and retirees, whose benefits exceed the amounts to be set, shall contribute in a special, solidarity, and redistributive manner, in accordance with the following table: a) On the excess of the cap established in article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess. b) On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess of the previous margin, they shall contribute fifty-five percent (55%). In no case may the sum of the special, solidarity, and redistributive contribution and the total deductions applied by law to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension. The resources obtained from the special, solidarity, and redistributive contribution established in this law shall enter the Fondo de Jubilaciones y Pensiones del Poder Judicial. From the foregoing, it is inferred that the current Law establishes the cap for Judicial Branch pensions at the base of 10 salaries of the lowest salary in the Institution, which is set at the sum of 463,000 colones monthly; times ten salaries would give the sum of 4,463,000 colones monthly of pension, an amount that is currently exempt from the payment of the mandatory and solidarity contribution. The Full Court has already had the opportunity to send to the Legislative Assembly the legal basis that was upheld at that time on a similar bill consulted. The report rendered by Judge Orlando Aguirre Gómez and approved through article X of minute No. 028-2015 of July 20, 2015, concerning the discussion of the "Ley Marco de Contribución Especial de los Regímenes de Pensiones, Legislative File No. 19.254. We consider that the basis from that time applies completely to the Bill under Consultation, as it is very similar, so parts of the report will be cited as relevant."... This bill aims to create and regulate the special contribution on the amounts of pensions (retirements) that exceed ten times the lowest base salary paid by the Public Administration, according to the salary index of the Dirección General del Servicio Civil. B. SCOPE OF THE PROPOSAL. This law, if approved, will be applied to the following pension systems: a) Ley No. 7302 of July 8, 1992, Régimen General de Pensiones con Cargo al Presupuesto Nacional (Ley Marco de Pensiones). b) Judicial Branch Pension System, Ley Orgánica del Poder Judicial No. 7333 of May 5, 1993 and its Reforms. c) Ley No. 148 of August 23, 1943, Ley de Pensiones de Hacienda. d) Ley NO 264 of August 23, 1939, Ley de Jubilaciones y Pensiones para los Empleados del Ferrocarril Eléctrico al Pacífico. e) Ley No. 4513 of January 2, 1970, Inamovilidad del personal de telecomunicaciones. f) Ley No. 15 of December 5, 1935, Ley de Pensiones de Músicos de Bandas Militares. g) Ley No. 19 of November 4, 1944, Ley de Jubilaciones y Pensiones de Empleados de Obras Públicas. h) Ley No. 5 of September 16, 1939, National Registry Pension System. Pensions and retirements that exceed ten times the base salary shall contribute in a special, solidarity, and redistributive manner, according to the following proportion: a) On the excess of the amount established in article 1 and up to twenty-five percent (25%) of said amount, they shall contribute twenty-five percent (25%) of said excess. b) On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute thirty-five percent (35%) of said excess. c) On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of said excess. d) On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty-five percent (55%) of said excess. e) On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute sixty-five percent (65%). f) On the excess of the previous margin they shall contribute seventy-five percent (75%). " C.- ON THE RIGHT TO RETIREMENT, it was said: "The institution of retirement corresponds to a fundamental right of every working person, regulated in articles 33 and 73 of the Political Constitution and in international regulations: minimum standard No. 102 of the ILO on Social Security, ILO International Convention No. 118 on Equality of Treatment in Matters of Social Security, Article 22 of the Declaration of Human Rights, Article 31 of the International American Charter of Social Guarantees, Article XI of the American Declaration of the Rights and Duties of Man, Article 9 of the International Covenant on Economic, Social and Cultural Rights. The Political Constitution establishes in ordinal 50 that the State shall seek the greatest well-being for all the inhabitants of the country, and numeral 51 says that the elderly have the right to special protection from the State. Ley No. 7935 of October 25, 1999: 'Ley Integral para la Persona Adulta Mayor', whose objective is to guarantee older adults equality of opportunity and dignified life in all areas, in its article 3, subsection g), indicates that every person has the right to a pension granted in a timely manner, which helps them satisfy their fundamental needs, whether or not they have contributed to a pension system. From a doctrinal point of view, it has been pointed out that old-age retirement has a determined objective, which is to assure those workers who retire totally or partially from activity a compensation that allows them to maintain their standard of living as if they were still active. It is aid based on solidarity to which they are entitled for having contributed to it during their working life with part of the income product of their work. D.- CRITERION. ANALYSIS OF THE BILL. The bill proposes to create and regulate a "special contribution" on the amounts of pensions that exceed ten times the lowest base salary paid by the Public Administration. Said contribution is progressive from 25% to 75%, taking as a base salary ranges that increase according to the corresponding scale. As it involves a limitation of fundamental rights associated with every working person, an analysis must be conducted to verify compliance with the constitutional principles of reasonableness, namely necessity, suitability, and proportionality, as well as in relation to the also fundamental rights of equality and non-retroactivity, and of course, the impact that the modification may produce on the Judicial Branch, if approved. 1) Reasonableness Analysis. The Constitutional Chamber (Sala Constitucional) in ruling 2010-1625 stated: 'When it comes to restricting certain rights, this rule imposes the duty that such limitation must be justified by a sufficiently weighty reason to legitimize its contradiction with the general principle of equality. The foregoing, because a rights-limiting act is reasonable when it meets a triple condition: it must be necessary, suitable, and proportional.' A rights-limiting act is reasonable when it meets a triple condition: necessary, suitable, and proportional. The necessity of a measure makes direct reference to the existence of a factual basis that makes it precise to protect some good or set of goods of the community or of a determined group. The bill points out that the measure is necessary to solve the problem of financing the public pension funds that currently sustain high pensions; that is, it has a clear objective. However, in order to determine if the proposed measure is reasonable, it must also be clear that the impairment it will generate in the fundamental rights of retirees, who will receive a lower amount of pension, is the most suitable; that is, that there is no other that can achieve the same objectives without harming the administered. For this, it is imperative to have a study that allows determining not only the scope of the bill but also the parameters used by the legislator to conclude that the proposed option is the most suitable. Proportionality refers to a comparative judgment between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, so that the limitation is not markedly greater than the benefit intended to be obtained for the benefit of the community. As this is a quantitative assessment, its resolution is simple. The objective of the bill is to solve the financing problem of the funds that sustain pensions; however, the measure proposed for this is to remove from 25% to 75% of the amount of pensions that exceed 10 times the lowest salary of the Public Administration. This implies that in some cases, the person will receive, just for the concept of the contribution, up to 50% less of the amount they were earning, in addition to the other deductions that must be made according to the law. With this measure, far from solving the problem, an even more serious one would be generated, which would be the excessive impoverishment of only some of the retirees, in the terms that will be explained. From that perspective, the proposed contribution amounts are disproportionate, and the measure intended to be imposed is not reasonable. 2) Principle of Equality. This principle can be defined as equality among equals and inequality among unequals, which implies that diverse situations cannot be treated in the same way. The bill under analysis imposes a contribution on several pensions from different systems without taking into consideration the differences existing between them. Special mention must be made at this point of the Judicial Branch pension system. The Fondo de Jubilaciones y Pensiones del Poder Judicial is a pension system in which retired persons continue contributing 11% of their earnings from retirement (and it can be increased up to 15%). Therefore, if the bill were approved, an excessive contribution would be applied in this system, placing Judicial Branch pensioners in a situation of true sacrifice and discrimination compared to pensioners of other systems, significantly affecting their situation, as the legal deductions must not be forgotten: 5% for Maternity and Sickness Insurance (Seguro de Maternidad y Enfermedad): between 10% and 15% Income Tax (Impuesto sobre la Renta) and a 9% contribution to the Poder Judicial Pension Fund. For this reason, if a 25% to 75% contribution is added to those deductions, one would be facing a clearly unreasonable and disproportionate deduction. The other systems have other particularities: the workers' contributions are lower than those made by Judicial Branch employees, and the contributions made by retirees are not equal either. Thus, it is reiterated, not everyone can be treated the same way. The specific case of the Poder Judicial Pension Fund has its particularities that deserve different treatment from the other systems. 3) Confiscatory Contribution and Double Tax Burden. According to the bill, the contribution must enter the single state treasury (caja única del Estado), and its objective is to strengthen the different systems. The formulation is not at all clear, as it does not specify how that strengthening will be carried out with regard to the Poder Judicial Fund or the other systems. With regard to the Judicial Branch, it contradicts the rules regulating the administration of the Poder Judicial Fund, because according to the latter, that administration corresponds to the Consejo Superior del Poder Judicial. Thus, the contribution is nothing less than one more tax on pensions, so that if these already must pay from 10% to 15% Income Tax (Impuesto sobre la Renta), the contribution becomes a double tax burden and a confiscatory act beyond all reason. 4) Non-Retroactivity. Article 34 of the Political Constitution reads: "No law shall be given retroactive effect to the detriment of a person, or their acquired patrimonial rights or consolidated legal situations." This bill proposes that the contribution also be applied to persons who currently enjoy the retirement right, which constitutes an injury to this principle, since unexpectedly, the beneficiaries would see the amount of their pension reduced in large proportions, which even reaches approximately 50% of their earnings. Therefore, the bill is not socially viable either because it directly affects a fundamental right and the interests of a vulnerable population such as older adults. Those who currently enjoy this right did so because they met the established requirements, served for a determined period, and made the required contributions. Moreover, they have a family budget that cannot be altered overnight. Consideration must be taken that, as age advances, some basic needs increase, such as medical care and caregiving, hence older adults cannot be affected in such a high proportion, leaving them only with 60%, 65%, or 70% of the amount they were accustomed to receiving. c). In view of this panorama, it is also important to point out that in the Full Court session number 47-2019 of November 11, 2019, article XVI, a report rendered by Judge Orlando Aguirre Gómez was deemed presented, which considered, regarding the creation of the special contribution, the following: "The Full Court has already had the opportunity to send to the Legislative Assembly the legal basis that was upheld at that time on a similar bill consulted. The report rendered and approved through article X of minute no. 028-2015 of July 20, 2015, concerning the discussion of the "Ley Marco de Contribución Especial de los Regímenes de Pensiones, Legislative File no. 19.254."- We consider that the basis from that time is very similar to the Bill under Consultation, so parts of the report will be cited as relevant. "... C.- ON THE RIGHT TO RETIREMENT, it was said: "The institution of retirement corresponds to a fundamental right of every working person, regulated in articles 33 and 73 of the Political Constitution and in international regulations: minimum standard No. 102 of the ILO on Social Security, ILO International Convention No. 118 on Equality of Treatment in Matters of Social Security, Article 22 of the Declaration of Human Rights, Article 31 of the International American Charter of Social Guarantees, Article XI of the American Declaration of the Rights and Duties of Man, Article 9 of the International Covenant on Economic, Social and Cultural Rights. The Political Constitution establishes in ordinal 50 that the State shall seek the greatest well-being for all the inhabitants of the country, and numeral 51 says that the elderly have the right to special protection from the State. Ley No. 7935 of October 25, 1999: 'Ley Integral para la Persona Adulta Mayor', whose objective is to guarantee older adults equality of opportunity and dignified life in all areas, in its article 3, subsection g), indicates that every person has the right to a pension granted in a timely manner, which helps them satisfy their fundamental needs, whether or not they have contributed to a pension system. From a doctrinal point of view, it has been pointed out that 'old-age retirement has a determined objective, which is to assure those workers who retire totally or partially from activity a compensation that allows them to maintain their standard of living as if they were still active. It is aid based on solidarity to which they are entitled for having contributed to it during their working life with part of the income product of their work.' D.- CRITERION. ANALYSIS OF THE BILL. The bill proposes to create and regulate a 'special contribution' on the amounts of pensions that exceed ten times the lowest base salary paid by the Public Administration. Said contribution is progressive from 25% to 75%, taking as a base salary ranges that increase according to the corresponding scale. As it involves a limitation of fundamental rights associated with every working person, an analysis must be conducted to verify compliance with the constitutional principles of reasonableness, namely necessity, suitability, and proportionality, as well as in relation to the also fundamental rights of equality and non-retroactivity, and of course, the impact that the modification may produce on the Judicial Branch, if approved. 1) Reasonableness Analysis. The Constitutional Chamber (Sala Constitucional) in ruling 2010-1625 stated: 'When it comes to restricting certain rights, this rule imposes the duty that such limitation must be justified by a sufficiently weighty reason to legitimize its contradiction with the general principle of equality. The foregoing, because a rights-limiting act is reasonable when it meets a triple condition: it must be necessary, suitable, and proportional.' A rights-limiting act is reasonable when it meets a triple condition: necessary, suitable, and proportional. The necessity of a measure makes direct reference to the existence of a factual basis that makes it precise to protect some good or set of goods of the community or of a determined group. The bill points out that the measure is necessary to solve the problem of financing the public pension funds that currently sustain high pensions; that is, it has a clear objective. However, in order to determine if the proposed measure is reasonable, it must also be clear that the impairment it will generate in the fundamental rights of retirees, who will receive a lower amount of pension, is the most suitable; that is, that there is no other that can achieve the same objectives without harming the administered. For this, it is imperative to have a study that allows determining not only the scope of the bill but also the parameters used by the legislator to conclude that the proposed option is the most suitable. Proportionality refers to a comparative judgment between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, so that the limitation is not markedly greater than the benefit intended to be obtained for the benefit of the community. As this is a quantitative assessment, its resolution is simple. The objective of the bill is to solve the financing problem of the funds that sustain pensions; however, the measure proposed for this is to remove from 25% to 75% of the amount of pensions that exceed 10 times the lowest salary of the Public Administration. This implies that in some cases, the person will receive, just for the concept of the contribution, up to 50% less of the amount they were earning, in addition to the other deductions that must be made according to the law. With this measure, far from solving the problem, an even more serious one would be generated, which would be the excessive impoverishment of only some of the retirees, in the terms that will be explained.

From that perspective, the proposed contribution amounts are disproportionate and the measure intended to be imposed is not reasonable. 2) Principle of equality. This principle can be defined as equality among equals and inequality among unequals, which implies that diverse situations cannot be treated in the same manner. The project under analysis imposes a contribution on several pensions from different regimes without considering the differences existing among them. Special mention must be made at this point of the pension regime of the Judicial Branch. The Judicial Branch Retirement and Pension Fund is a pension regime in which retired persons continue contributing 11% of what is earned from retirement (and it may be increased up to 15%). Therefore, if the project is approved, an excessive contribution would be applied to this regime, placing Judicial Branch pensioners in a situation of real sacrifice and discrimination in relation to pensioners of other regimes, significantly affecting their situation, since the legal deductions must not be forgotten: 5% for Maternity and Sickness Insurance; between 10% and 15% for Income Tax; and a 9% contribution to the Judicial Branch Pension Fund. For this reason, if a 25% to 75% contribution intended is added to those deductions, it would be a clearly unreasonable and disproportionate deduction... The other regimes have other particularities: the workers' contributions are lower than those made by Judicial Branch employees and the contributions made by retirees are also not the same. Thus, it is reiterated, everyone cannot be treated in the same way. The specific case of the Judicial Branch Pension Fund has its particularities that deserve different treatment from the other regimes. 3) Confiscatory contribution and double tax burden (...) the contribution is nothing less than one more tax on pensions, so that, if these already must pay 10% to 15% Income Tax, the contribution becomes a double tax burden and a confiscatory act beyond all reason. 4) Non-retroactivity. Article 34 of the Political Constitution provides: 'No law shall have retroactive effect to the detriment of a person, or of their acquired patrimonial rights or consolidated legal situations.' This project proposes that the contribution also be applied to persons who currently enjoy the retirement right, which constitutes an injury to this principle, since unexpectedly the beneficiaries would see the pension amount reduced in large proportions, which even reaches approximately 50% of what is earned. Therefore, the project is also not socially viable because it directly impacts a fundamental right and the interests of a vulnerable population such as the elderly. Those who currently enjoy this right did so because they met the established requirements, served for a determined period, and made the required contributions. Moreover, they have a family budget that cannot be altered overnight. It must be considered that, as age advances, some basic needs increase, such as medical care and personal care, so the elderly cannot be affected in such a high proportion, leaving them with only 60%, 65%, or 70% of the amount they were accustomed to receiving...." (The highlighting is not original). It can be verified that if at that time the methodology for calculating the special solidarity contribution was disproportionate and irrational, since it tends to impoverish retired or pensioned persons; now with the reform enacted in Law 9796, there is a stronger aggravation, due to the greater detriment that the final retirement or pension amount received by a retired or pensioned person or one about to acquire those rights will suffer, since the exemption range was shortened by the challenged law. It must be kept in mind that current retirements and pensions and those granted in the future are capped according to Article 225 of the Organic Law of the Judicial Branch, the deduction of a 13% monthly contribution is applied to them, a 5.50% Maternity and Sickness Insurance, and between 10% and 25% Income Tax, percentages that are taken from the total of eighty-two percent (82%) corresponding to the ordinary retirement, which would result in a deduction of nearly half of the retirement entitlement, and this is contrary to the conventional provisions that allow a reduction of said benefit. See that both the cited Conventions referred to in the previous transcription, and Recommendation No. 43 of the International Labor Organization are in agreement in establishing that the retirement or pension must satisfy the essential needs of persons in their old age stage, so the amount must be fixed taking into account the "cost of living and the social situation during the period of professional activity". That is, the standard of living that the working person had during their active professional life must be respected. That normative framework was not taken into account when the appealed law was enacted. The foregoing was considered in the report rendered by Magistrate Roxana Chacón Artavia, in the Full Court session number 47-19, held on November 11, 2019, article XVI, where the following was clearly stated: "III.- PENSIONED PERSONS OF THE JUDICIAL BRANCH ALSO CONTRIBUTE A PERCENTAGE OF 13% OF THEIR PENSION TO THE SUPPORT OF THE RETIREMENT AND PENSION FUND. Since 1996, a reform was introduced to the Organic Law of the Judicial Branch, Law No. 7605 of May 2, 1996, in its article 236 so that active employees and persons pensioned under this Regime mandatorily contributed to the Judicial Branch Pension and Retirement Fund. Thus, article 236 subsection 1) stated: '1.- Nine percent (9%) of all active salaries, as well as of the retirements and pensions covered by the Fund. This percentage is withheld monthly, and for reasons of need of the Fund and based on actuarial studies, the Court may increase this percentage up to 15%.' With the reform made to the Organic Law of the Judicial Branch (Law No. 9544 of April 24, 2018), article 236 was also reformed, which establishes the contributions received by the Judicial Branch Pension and Retirement Fund. A worker contribution of thirteen percent (13%) of the salaries earned by judicial employees, as well as of the retirements and pensions covered by the Fund, was then defined, a percentage that will be withheld from the corresponding periodic payment. It seems of special interest to us to make the Legislative Assembly see, that at this time at the end of article 236 the following was stated: 'Under no circumstances may the sum of the mandatory contribution and the special, solidarity, and redistributive contribution and, in general, the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted such that the sum equals fifty-five percent (55%) of the total gross amount of the pension.' (The bold text does not correspond to the original of the cited law text." Thus, the legislator, when reforming the Organic Law of the Judicial Branch, was clear that the pensions of judicial employees would not be taxed above 55% of the gross amount of the pension. Including here the mandatory contribution and the special, solidarity, and redistributive contribution already agreed upon by Law. However, the last two legislative initiatives presented in the processing of Bill No. 21.035 refer to obtaining a scale of percentages to be applied to Judicial Branch pensions, without considering that a double contribution already exists on the part of those obligated to the Judicial Branch Pension and Retirement Fund, on one hand the mandatory contribution of 13%, leaving only 42% of the pension available as a maximum to fix the special and redistributive solidarity contribution to be distributed from this percentage in the suggested scale. This in order not to violate the aforementioned provision, that it may not exceed 55% of the gross amount of the pension. This Magistrate precisely misses the fact that the Bill does not contain technical studies that take into consideration the contribution established in the Organic Law of the Judicial Branch, and the one proposed in the consulted Bill, called the special and redistributive solidarity contribution. These two items have not been analyzed to determine if the recent legislative initiatives would be exceeding the limit set by the Legislator when it reformed the Chapter relating to the Judicial Branch Retirement and Pension Fund and determined that they could not exceed 55% of the pension amount. IV.- PENSIONED PERSONS OF THE JUDICIAL BRANCH ALSO CONTRIBUTE FROM THEIR PENSIONS TO THE INCOME TAX. According to Law 7092, Income Tax Law, another obligation is established for Judicial Branch pensioners to contribute from their pensions to the Income Tax. And recently, in the month of December 2018, the Public Finance Strengthening Law, Law No. 9635, was enacted, which came to reform several of the articles of Law 7092. All these charges imposed on pensions have caused the amounts in recent years to have increased considerably, in response to the economic situation our country is experiencing. However, it is important to review the obligations already imposed by the Legislator on this Population Sector, the pensioners, so as not to overload them and impose double contributions, placing them at serious risk of not being able to meet their economic and subsistence obligations." Special care must be taken with the reductions imposed so that they are not confiscatory, since as indicated, in addition to this special solidarity contribution based on the six cited base salaries, it must not be lost sight of that as explained, an ordinary retirement set at eighty-two percent (82%), which bears the legal charges that could be up to fifteen percent (15%) and currently is thirteen percent (13%) contribution to the Fund, five point five percent (5.50%) to the CCSS Regime, and ten percent (10%) to twenty-five percent (25%) for income tax, already suffers practically a reduction of between forty-five percent (45%) and sixty percent (60%) of the salary the retired person received when they were actively working (this without considering that the calculation is not being made based on the current salary, but with a proration of the last twenty years of work). A situation that is also not foreign to those retirements or pensions already granted and enjoyed, since they currently bear levies from thirty-one percent (31%) to thirty-five percent (35%) of the total right, which added to the lowest percentage of the solidarity quota -twenty-five percent (25%)-, yields a total of sixty percent (60%), which becomes confiscatory and disproportionate, besides violating the principle of non-retroactivity of the law, contemplated in Article 34 of the Political Constitution. It is reiterated that said condition goes against the provisions of ILO Convention No. 102, which in its article 67 establishes that: "With respect to any periodic payment to which this article applies: (a) the amount of the benefit shall be determined in accordance with a prescribed scale or according to a rule fixed by the competent public authorities, in conformity with prescribed rules; (b) the amount of the benefit may not be reduced except to the extent that the other resources of the beneficiary's family exceed substantial sums prescribed or fixed by the competent authorities, in conformity with prescribed rules; (c) the total of the benefit and of the other family resources, after deduction of the substantial sums referred to in paragraph b) above, shall be sufficient to ensure healthy and proper living conditions for the family, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66". And Recommendation No. 43 of that organization is in agreement in establishing that the pension must satisfy the essential needs of persons in their old age stage, so the amount must be fixed taking into account the "cost of living and the social situation during the period of professional activity". That is, the standard of living that the judicial employee had during their active professional life must be respected. It expressly states: "(b) In schemes with contributions proportional to salaries, insured persons who have credited to their account the contributions corresponding to the average duration of active professional life should obtain a pension that corresponds to their social situation during the period of professional activity. To this end, the pension guaranteed to insured persons who have credited thirty effective years of contribution should not be less than half of the salary insured from entry into insurance or during a determined period immediately preceding the settlement of the pension". On the other hand, each judicial employee contributes, throughout their working life, a determined percentage that affects the totality of their income, so there is no explanation that justifies exempting fewer base salaries than in other regimes. The justification is even more necessary and indispensable when there are judicial employees who, having contributed double, triple, quadruple, or even more times than others, end up having a lower amount of base salaries imposed as an exception to the special contribution, in relation to other regimes. In this regard, it is noted that when the legislator fixed the exemption range, it did not indicate the reasons for choosing it, an explanation that should have been grounded in technical and especially actuarial criteria justifying the decision adopted and not only on the need to eliminate "the inequalities in the social benefits of pensions and retirements, as well as in the tax burdens". Furthermore, it should be taken into account that judicial employees at the time of taking their retirement continue contributing to the Judicial Branch Retirement and Pension Fund with a worker contribution of thirteen percent (13%) according to article 236 LOPJ, unlike other retirement and pension regimes, therefore the amount of their retirement is diminished and, in addition, other deductions must be added such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund, created according to article 239 of the cited regulation, which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial employees, as well as of the retirements and pensions covered by the fund, which could be seen as confiscatory (article 40 Constitutional), violative of the principle of non-retroactivity of the law (article 34 of our Magna Carta) since there are patrimonial rights acquired and consolidated by a prior law, and it infringes the principle of equality established in numeral 33 ibid. In support of the estimate, it is important to reiterate the report approved by the Full Court in session number 26-17, of August 7, 2017, article XXX, where it was stated in what is of interest the following: "It is reiterated, this Court has been respectful and will be so of the technical studies issued to procure the sustainability of the Fund, however, it cannot be overlooked that we are in the presence of fundamental rights and it is for this reason that the reform also merits a study adhering to actuarial technique but also with a human rights perspective. In this sense, it should be highlighted that ILO Recommendation No. 43 'Recommendation Concerning Invalidity, Old-Age and Survivors' Insurance', in point 13), subsections a) and b) states that: '(a) To guarantee workers an old age without privation, the pension should cover essential needs. It is advisable, therefore, that the pension guaranteed to any pensioner who has completed a determined qualifying period be fixed taking due account of the cost of living. (b) In schemes with contributions proportional to salaries, insured persons who have credited to their account the contributions corresponding to the average duration of active professional life should obtain a pension that corresponds to their social situation during the period of professional activity. To this end, the pension guaranteed to insured persons who have credited thirty effective years of contribution should not be less than half of the salary insured from entry into insurance or during a determined period immediately preceding the settlement of the pension.' It is clear then that both Convention No. 102 and Recommendation No. 43 of the International Labor Organization are in agreement in establishing that retirement and pension must satisfy the essential needs of persons in their old age stage, so the amount must be fixed taking into account the 'cost of living and the social situation during the period of professional activity'. That is, the standard of living that the working person had during their active professional life must be respected. The need to make reforms to the Retirement and Pension Fund is not unknown, with the aim of procuring sustainability, but these must respond and be clothed with suitability and reasonableness, as indicated by the Constitutional Chamber in vote No. 2010-1625 of 9:30 a.m. on January 27, 2010, when declaring unconstitutional the cap on pensions established in article 234 of the Organic Law of the Judicial Branch. The foregoing is in agreement with what was said by the Inter-American Commission on Human Rights when analyzing the admissibility of the case 'Admissibility and Merits Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras vs. Perú' [1], it outlined that the mentioned Article 26 is not exclusive of the possibility of a State imposing certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis has been made of the individual impact on the right (in this case retirement and pension) in relation to the collective implications of the measure." (The emphasis is supplied). d).- It must be indicated that article 236 of the Organic Law of the Judicial Branch, which defines the income of the Judicial Branch Retirement and Pension Fund, maintains the 13% contribution that active judicial employees must make to pensioned and retired persons, unlike other retirement regimes where once retired or pensioned the person does not have to continue contributing. This condition must be evaluated integrally with the rest of the articles mentioned in the previous points and where amounts are also established that reduce the percentage approved for retirement due to deductions for contribution, special, solidarity, and redistributive contribution, which were established in the challenged norm, in addition to income tax. On the other hand, it is noted that the Judicial Branch Retirement and Pension Fund has the same characteristics as a social security fund (articles 73 and 177 constitutional) and its nature has been analyzed by that Chamber in vote number 2014-20474, of fifteen forty-five hours on December eighteen, two thousand fourteen, as follows: III. On the nature of the Judicial Branch Retirement and Pension Fund.- For this Court, the retirement and pension system of the Judicial Branch consists of a "pay-as-you-go system", in which contributions concur from both workers and former employees, as well as public funds, given the contributions of the Judicial Branch as employer, and that of the State itself. Ergo, the nature of this welfare regime corresponds to the field, on one hand, of social security law, and, on the other, to public law by virtue of the statutory nature of the relationship of employees with the State. Thus, it is evident that the system in question has exactly the same characteristics as a social security fund, as deduced from reading numeral 73 of the Political Constitution: "Article 73. Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of compulsory contribution from the State, employers, and workers, in order to protect these against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law." In short, the Judicial Branch Retirement and Pension Fund is constituted for the benefit of judicial workers, which is financially sustained thanks to a tripartite compulsory contribution system of the State, Judicial Branch as employer, together with judicial employees and retirees, and whose purpose is to protect the latter from contingencies such as old age, disability, or death. The necessary elements are present to consider the Judicial Branch Retirement and Pension Fund as a pay-as-you-go social security system, which inevitably implies that it must be governed in accordance with what is established in the Political Constitution and the principles that inform social security regimes. (Judgment number 2011-10513, of fifteen hours one minute on August ten, two thousand eleven. In the same sense, judgment number 2012-004108, of fourteen hours thirty minutes on March twenty-seven, two thousand twelve)." e).- It is reiterated, retired and pensioned persons of the Judicial Branch continue contributing to the regime the same percentage as working persons, currently 13%, so any additional solidarity contribution must start from this already contributed percentage. It must also be considered that retirees and pensioners of the Judicial Branch regime, in addition to this mandatory contribution to the Retirement and Pension Fund of 13%, must contribute to the Sickness and Maternity Insurance of the CCSS, 5.50% and likewise pay income tax, whose ranges reach between 10% and 25%, according to the caps defined by the Ministry of Finance. It is highlighted that those belonging to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund do not continue contributing to the regime nor pay what corresponds to Sickness and Maternity Insurance, and this represents unequal treatment for former judicial employees. It is for this reason that this solidarity contribution cannot exceed 20%, considering the 13% already contributed, since, otherwise, the totality of the deductions would be confiscatory and would violate the international and constitutional regulations established in this matter. Likewise, in relation to the solidarity tax, it is estimated that being a tax burden, the constitutional principles that govern tax matters must be respected, such as the principle of legal reserve, proportionality, economic capacity, non-confiscation, among others. And that among all these principles it is of special interest to highlight the principle of non-confiscation in relation to the right to property and what was stated by the Constitutional Chamber in judgment 2657-2001 of fifteen hours fifteen minutes on April four, two thousand one, which indicated the following: \"IV. On the argument that the tax is confiscatory: The State may take a proportional part of the income generated by the individual, to cover its expenses, but provided that it does not annul property as such, as would be the case if the tax totally absorbs the income. If the Constitution protects the right to property to the integral patrimony, it cannot be recognized and admitted that other provisions destroy it. Thus, to be constitutional, taxes must not denature other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposal, and prohibits confiscation, so a taxation measure that goes beyond what is reasonable and proportionate cannot be permitted. [...]. If the Constitution in its article 45 establishes that property is inviolable, and in its article 40 that no one shall be subjected to a penalty of confiscation, it is undeniable that the tax cannot be such that it renders such guarantees illusory. But it can be established as a principle, that a levy is considered confiscatory that exceeds the economic or financial capacity of the taxpayer, or, if the tax absorbs a substantial part of the taxed operation, [...]. (Our emphasis).". For the foregoing, it is considered that the reductions imposed are confiscatory, since as indicated, in addition to this solidarity contribution, it should not be lost sight of that an ordinary retirement set at eighty-two percent (82%) that bears the legal charges of thirteen percent (13%) contribution to the Fund, five point five percent (5.50%) to the CCSS Regime, and ten percent (10%) to twenty-five percent (25%) for income tax; already suffers a reduction of forty-six percent (46%) to sixty-one percent (61%) -according to those calculations- that the retired person received when they were actively working, without also considering that the calculation was not made at that time based on the current salary, but with a proration of the last twenty years of work), which could clearly be confiscatory and disproportionate, consequently contrary to what is stipulated in conventional and unconstitutional matters. For all the foregoing, it can be concluded that: 1-The modification of the special solidarity contribution established in the challenged norm affects the life project of all judicial employees, because it means an arbitrary and unequal reduction of retirement and given the percentage of reduction of the amount paid as retirement recognition, it is determined to be confiscatory. The foregoing because it aggravates lower-range incomes and at the same time again aggravates higher-range pension or retirement incomes, taking as a starting point the gross income amounts without considering that on such incomes percentage taxes on income, contribution to the social security regime, and the referred solidarity contribution are already deducted, which implies that the new figure imposed is certainly a double taxation. In addition to this, the remedy sought causes a minuscule benefit compared to the enormous harm that would be caused only to some Costa Rican families. Also, it even reduces the amount on which the solidarity contribution begins, going from ten base salaries to six base salaries in the case of the Judicial Branch, which does not apply to the other basic regimes involved in said norm. This clearly indicates an impact on pensions that logically have lower purchasing power, while at the same time further harming persons with a higher pension income range that are already affected by the solidarity contribution figure. Lowering from the amount of 10 minimum salaries to 6 minimum salaries, maintaining the same deduction scale by percentages that always start at 35%, evidently violates the Principle of Reasonableness, besides the fact that other regimes, in some cases such as that of the Teaching Profession, only suffer the collection of the Solidarity Contribution and not the percentage contribution that equally affects the Judicial Branch Regime when judicial employees under their regime pension or retire. 2- It cannot be ignored that the creation and nature of the Judicial Branch Retirement and Pension Fund responds to criteria of stability, independence, preparation, and suitability, as established in article 192 of the Political Constitution, with the objective of promoting the permanence of personnel trained and qualified in the institution and the reduction of the retirement entitlement represents a disincentive for the entry of valuable professionals, who, considering the economic result of a future assessment, would prefer to pursue their professional career in another work environment. Thereby, the judicial, prosecutorial, Public Defense, and general staff career is affected, as they, having more charges on their salary—four times more than in other regimes—would receive a lesser benefit. 3- On the other hand, the renewal of personnel who manage to remain is affected. The Judicial Branch would have elderly officials, who remained working only because of the reduction their income would suffer in the event of retiring.

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

5- The regulation of the Fondo de Jubilaciones y Pensiones del Poder Judicial should not be evaluated solely from an economic perspective, as we are dealing with fundamental – inalienable – rights associated with every worker, who during their working years contributed, at a percentage higher than the general rate, to a regime with the expectation of having a pension that allows them to meet their needs and enjoy, together with their environment, their retirement years peacefully and with quality of life.

6- The imposition of this new tax burden affects vulnerable population groups – such as older adults – harming the weakest party, the one that precisely requires greater protection from the State. The foregoing also implies a retroactive application of the law, an aspect prohibited by Article 34 of the Constitución Política. The tax is imposed at a moment in the retired person's life when they are most vulnerable, near or already in their senior years. It cannot be overlooked that it is at this stage where people generally require greater medical attention, special care, among other things, given that during their working life, some to a greater or lesser extent, according to the income received, contributed to the regime with the expectation of having the resources planned to face this process, and if this Law Project is approved, said life plan would be truncated.

7- A significant social impact is caused, as people in retirement suddenly lose an important part of their income, but retain a status of pre-established expenses, which becomes a repercussion not only economically, but also on their health, being contrary to the intended objective for a pension system, which is to have sufficient income during life after work, a scenario in which it is important to remember that on many occasions, the retired person continues to have under their care and maintenance other older adults or minors (…).” 10.- Through briefs submitted to the Chamber on June 1, 2020, Luis Antonio Chang Pizarro and Silenne Castro Vindas, in their capacity as retirees of the Poder Judicial, request to be admitted as active coadjuvants in this process.

11.- Through a brief submitted to the Chamber on June 2, 2020, María del Pilar Vargas Acosta, in her capacity as a retiree of the Poder Judicial, requests to be admitted as an active coadjuvant.

12.- Through a brief submitted to the Chamber on June 2, 2020, Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas, and Alfredo Jones León, in their capacity as retirees of the Poder Judicial, request to be admitted as active coadjuvants in this constitutional process.

13.- Through a brief submitted to the Chamber on June 3, 2020, María del Pilar Garrido Gonzalo, in her capacity as Ministra de Planificación Nacional y Política Económica, answers the audience granted and expressly states the following: “(…) 1.- FORM ASPECTS: As a preliminary aspect, it is necessary to clarify that the Ministerio de Planificación Nacional y Política Económica (MIDEPLAN) did not participate in the drafting process of the Law Project. Likewise, to note that the subject of pensions, by its nature, is under the charge of other specialized public bodies and institutions; consequently, it does not correspond per se to the powers granted to this Ministry by the Ley de Planificación Nacional, No. 5525 of May 2, 1974, as the governing body of the Sistema Nacional de Planificación, nor to those granted to the head of this portfolio by Article 46 of the Ley de Salarios de la Administración Pública, No. 2166 of October 9, 1957, reformed and added by Article 3 of the Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 of December 3, 2018, as the governing body of public employment. By reason of the foregoing, this Ministerial Office can only render the requested Report based on the current text of the cited Law – which will come into effect until next June 21, 2020, that is, it has not yet produced legal effects, so that to date, none of the retired persons of the Régimen de Jubilaciones y Pensiones del Poder Judicial, nor of any other of the pension regimes within the scope of application of said Law, have been affected – as well as based on the public information available in the different institutions. Likewise, in the most respectful manner, this Honorable Chamber is urged to include the Ministerio de Trabajo y Seguridad Social, the governing body in pension matters, as an informant, so that the Magistrates may have greater inputs to resolve on the constitutionality of the Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, No. 9796 of December 5, 2019.

2.- ON THE MERITS: As a first element for the constitutionality analysis, it is appropriate to consider the aims pursued by the Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, which according to its Article 3, are not only directed at contributing to public finances, whose current difficult situation is of public knowledge, and with the redesign and redistribution of the special solidarity contribution established for the special pension regimes contained in Articles 3 of the Ley Marco de Contribución Especial de los Regímenes de Pensiones, No. 9383 of July 29, 2016; 236 bis of the Ley Orgánica del Poder Judicial, No. 8 of November 29, 1937, and in Article 71 of the Ley de Pensiones y Jubilaciones del Magisterio Nacional, No. 2248 of September 5, 1958 (comprehensively reformed by Law No. 7531 of July 10, 1995), seeks the sustainability of the systems and pensions, as well as to reduce the inequalities in the social benefits of the pensions, retirements, and in the tax burdens. In this sense, the criterion issued by the División de Fiscalización Operativa y Evaluativa of the Área de Fiscalización del Sistema de Administración Financiera de la República of the Contraloría General de la República (CGR) in Official Communication No. DFOE-SAF-0336 (9232) of July 1, 2019, must be taken into consideration, when the Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria was made known as a Law Project, in which it indicated the following: “The sustainability and fiscal impact of pension and retirement regimes have been a constant concern for many years, and have been communicated in multiple documents of the Contraloría General and other sources. In particular, regimes that operate with funds, such as that of the Poder Judicial and the Invalidez, Vejez y Muerte [Disability, Old Age, and Death] regime, have been addressed through different studies, with a view to their long-term sustainability, given that they may come to represent a contingent liability for the State. In the case of regimes financed through the National Budget, which are closed to new entrants, these already generate a deficit for the Government directly. This reality has originated, as the law project points out, some reforms for the establishment of measures that contribute to sustainability, or that reduce the effect of said regimes on public finances. There are also law initiatives, in addition to that of this project, with proposals in that direction, which it is suggested to consolidate or align with those of the present initiative.” Subsequently, regarding the solidarity contribution and the search to promote uniformity and reduce inequalities among retired and pensioned persons, it added: “The solidarity contribution by those higher benefits is one of the measures that have been put into execution, and this law project seeks a certain uniformity regarding this point, in such a way that progress is made in reducing the inequalities present in the contributions (…)” This Ministerial Office coincides with the criterion issued by the Controlling Body, and considers that the Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria does not violate any fundamental right, since the variation in the amount of the pension exempt from the special solidarity and redistributive contribution in the retirements and pensions of the Régimen del Poder Judicial, rather obeys the constitutional principles of reasonableness, proportionality, equity, and financial balance, within the framework of a Social State of Law such as ours, where there is the task of adopting the necessary measures to build a just political, economic, and social order, for which the State is responsible for guaranteeing the existence and sustainability of the social security regime and, in turn, of the pension and retirement regimes, not only the one that occupies us in this case, for which it is impossible to extract the legal plane from the factual one, in which the measures, norms, and resolutions adopted must take effect.

The appellants broadly outline the evolution of the retirement and pension regime of the Poder Judicial, as well as express their concern because they estimate that the modification of the amount of the maximum pension and of that exempt from the special solidarity contribution will affect the quality of life of the retired and pensioned persons of the Poder Judicial regime, who withdraw from active working life and support themselves from the lifetime annuities they receive by concept of pension or retirement. Now then, and despite the fact that the appellants, by reason of their position, must safeguard the interests of the persons affiliated with the Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L., it cannot be lost sight of that the Costa Rican State must not only attend to the needs of retired and pensioned judicial persons, but that by mandate of Article 50 of the Constitución Pública2 it must procure the greatest well-being of all the inhabitants of the country, for which it must, in addition to organizing and stimulating production, ensure the most adequate distribution of wealth and guarantee, preserve, and defend that right, and more specifically, Article 73 of the Constitution3 assigns it the task of ensuring that social insurance benefits working persons and protects persons with disabilities or permanent incapacity and older adults.

Now then, this does not mean that the needs of some persons should be neglected for the benefit of others, but rather that the State must advocate for the sustainability of all pension regimes, including the Fondo de Jubilaciones y Pensiones del Poder Judicial itself (despite the appellants' affirmation of its self-sustainability4 ), as well as constantly seek to reduce inequality, generate greater equity, unify the rules, and suppress disproportionate benefits that, in the long term, severely compromise the availability of limited resources to attend to the assigned and future retirements and pensions.

Regarding the alleged violations of constitutional norms and principles, it is appropriate to point out the following:

Regarding Article 7 of the Constitution 5 and the preeminence of international treaties and conventions over the Law and over the Constitución Política itself in matters of Human Rights, and in particular regarding the right to retirement, it must be clarified that starting from an erroneous premise will lead to an erroneous conclusion; thus, with the implementation of a lower amount that is exempt from the payment of the special solidarity and redistributive contribution, what is stipulated in Conventions 102 and 118 of the ILO is respected, as well as in other international conventions on human rights, regarding social benefits and for the benefit of the vulnerable population or older adults, since principles such as social justice and equity are being protected, given that the purpose of this legal reform is precisely the search for a balance between the income received from contributions and the expenses implied by the payment of retirement benefits, as well as the reduction of inequalities and the creation of equity.

Likewise, while it is true that there is a fundamental right to retirement or a pension widely consolidated in the jurisprudence of this Honorable Chamber, it has also been specified that there is no right to a benefit derived from that right being for a specific amount, since: “(…) the pension or retirement can be varied according to circumstances, either to recalibrate the benefit by increasing or decreasing it, when the contribution of the benefits is not sufficient to cover its share in the cost of the regime (...)” (Votos N°1925-91 of 12:00 hours on September 27, 1991, 2379-96 of 11:06 hours on May 17, 1996, and 3250-96 of 15:27 hours on July 2, 1996, 1625-2010 of 09:30 on January 27, 2010, 19485-2018 of November 21, 2018, and 236-2019 of 12:02 on January 9, 2019).

Particularly, regarding the invoked infraction of Convention 102 of the ILO, it must be emphatically rejected, given that its Articles 65, paragraph 3, and 67, subsection a), expressly establish that a maximum amount may be prescribed, that is, determined by national legislation or by virtue thereof, in accordance with Article 1.1., provided that such maximum respects the minimum established by the Convention itself, which, in the case of old-age benefits, is 40% of the total wage of the ordinary unskilled worker (pursuant to Articles 65, 66, 67), which constitutes a parameter of constitutionality of the amount of the retirement or pension.

Likewise, regarding the alleged lack of actuarial technical foundation of the Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, or at least a misinterpretation by the deputies, it is necessary to indicate that, in accordance with what is established by Convention 102 of the ILO, within the limits to the legislative power for the configuration of the different substitutive special regimes for retirements and pensions, there is the respect for the constitutional principles of reasonableness and proportionality, as well as the necessary adjustment to the principle of non-confiscation, being that the best way to avoid infractions of these constitutional principles is by grounding the intended reform in technical-actuarial studies that demonstrate the necessity, reasonableness, and proportionality of the initiative. In this case, the required studies were requested with a view to long-term sustainability, and having them, there is no unconstitutional ground for such a reason. Even on this point, the CGR pointed out in a report rendered on the matter that equity and the search for the reduction of inequalities in the conditions of the different regimes must prevail, in addition to the establishment of measures that contribute to their sustainability or that reduce the effect of said regimes on public finances. In this sense, the Sala Constitucional in Voto N°2379-96 of 11:06 hours on May 17, 1996, held that: “(…) the fact that the appellant is recognized as having an acquired right from their entry into the regime, the right to retirement, cannot imply a disappearance of the attributes and conditions that form an intrinsic part of it – including of course those that may be restrictive for the beneficiary – so that all these characteristics survive as an indeterminate set of presumed or implicit clauses, which are inserted within any regime or system for the realization of the right to retirement and which, for that very reason, are potentially applicable to the appellant at any time and while they belong to the regime. And they could not rely on Article 34 of the Constitución Política to oppose its application, given that it is not a new regulation but rather the effective exercise of an implicit power of variation existing from the moment of entry into the regime. Of course, this possibility of modification that the State has granted in its favor finds limits not only from the Constitución Política, but from International Law, among which those set out in Convention number 102 of the International Labour Organization relating to the minimum standard of social security stand out, which indicates, in what is of interest here, that the benefits granted in application of the cited Convention and the administration expenses are supported by technical studies and are not imposed or modified by a political, arbitrary, or whimsical decision of the Administration, benefits among which is the amount of contribution for the pension regime by the employee and the State as such and as employer, and which obliges that these variations be grounded in actuarial studies related to the solvency of the regime because they affect it.” (Emphasis supplied) From the foregoing, it follows that the ordinary legislator can validly regulate the conditions under which the special retirement and pension regimes must operate, complying with the minimum conditions established by both supranational and national regulations, in this case, that which emanates from the ILO and the constitutional limits that bind it to the existence of support in objective data derived from technical studies.

Regarding the alleged violation of the principle of equality, contained in Article 33 of our Constitución Política 7, and taking up what was stated by the Costa Rican jurist Rubén Hernández Valle, who classifies it as: “Derived directly from the principles of the French Revolution, equality before the law establishes the prohibition that, within the legal system, discriminations be established for reasons of sex, race, religion, and any others based on unreasonable grounds. Its ideological substratum is human dignity and the Christian principle of the equality of all men.” And to which, later in his work “El Derecho de la Constitución,” he places it within the Social State of Law, stating: “The Social State of Law means an increase in power for the benefit of equality, more than of property and freedom; its purpose is to distribute and utilize the community's resources to the maximum for the benefit of the most needy. Therefore, it is an intervention in economic life to favor certain persons, classes, or groups in order to raise the standard of living of the most needy in the enjoyment of property, that is, to achieve a real equality of all citizens.”9 Thus, reiterating what was stated above regarding the tasks of the Costa Rican State as a Social State of Law, as a manifestation of the principle of equality, the retirement and pension regimes are created within a framework that must advocate for their sustainability over time and must observe the principles of solidarity and sufficiency established in the doctrine of social security. Likewise, said sustainability is coupled with economic and financial balance in safeguarding public finances, given that these must maintain a balance, procuring satisfaction and effective remuneration for retired and pensioned persons. For this reason, it is considered opportune to return to the necessary weighing between the principle of budget balance and the benefits chargeable to a Social State of Law, to which the Sala Constitucional referred in Considerando IV of Voto N°19511-2018 of 21:45 hours on November 23, 2018, and with which the optional consultations of constitutionality of Law Project No. 20,580 (today Ley de Fortalecimiento de las Finanzas Públicas, Law No. 9635 of December 3, 2018) were resolved, which, due to their relevance, are transcribed below: “…In this regard, faced with a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant benefits, the decision of the competent authorities to define and apply measures suitable to alleviate or solve the problem is not only reasonable, but, even more so, is unavoidable. (…) In this context, a harmonious interpretation of the principle of budget balance and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there must inexorably be a balance between benefit rights and state economic solvency, since the former depend on the material possibilities brought about by the latter, while the purpose of the latter is to strengthen the development of a solidary political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Stated another (sic) way, the 'ideal' Social State of Law is the 'possible' Social State of Law, against which one precisely acts when the principle of budget balance is broken, given that, in the medium term, this puts at serious risk or completely prevents obtaining the necessary resources to sustain a 'real' Social State of Law, one that the most vulnerable can truly and effectively enjoy. (…) Corollary of what has been expressed: the non-observance of the principle of budget balance has been one of the causes of the current deteriorated state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and to emphasize its real implementation for the sake of the principle of the Social State of Law (…)” There is no doubt that the weakened state of public finances has forced the country to have to take and apply unavoidable measures that contribute to achieving the balance referred to by the Sala Constitucional, for the sake of ensuring there is economic solvency to be able to attend to the benefits chargeable to the State and to give sustainability to the retirement and pension regimes. The constitutional precepts that support these healthy finances compel the State to always have the purpose of satisfying the needs of the inhabitants of the country, without leading to an irresponsible increase in spending, nor neglecting some for the benefit of others. Therefore, from the joint and coordinated application of Articles 33 and 50 of the Constitución Política, it can be concluded that the principle of equality does not intend to be absolute in nature, since it does not properly grant a right to be equated with any person without distinction of their particular circumstances or conditions, but, on the contrary, implies that no differences are made between two or more persons or groups thereof, who are in either identical conditions or in the same legal situation, so that equal treatment cannot be sought when the conditions or circumstances are unequal. On this subject, in resolution number 1372-1992 dated May 26, 1992, the Sala Constitucional supported the following: “III.- Constitutional jurisprudence, through several pronouncements, has been able to decant the content of the principle of equality established in Article 33 of the Constitution, pointing out that through it, it is prohibited to make differences between two or more persons who are in the same legal situation or in identical conditions, without being able to seek equal treatment when the conditions or circumstances are unequal; in principle, equal treatment is accorded to equal situations and different treatment is made possible for different situations and personal categories. That very simple formula was recognized many years ago by the Constitutional Court, formerly the Supreme Court of Justice, which had charge of hearing unconstitutionality appeals before the creation of this specialized Chamber. But the requirement of equality does not legitimize any inequality to authorize differentiated treatment; to determine if discrimination is really justified, one must analyze whether the reason that produces it is reasonable, that is, if, taking into account the particular circumstances of the case, diverse treatment is justified.” (In an analogous sense, see Votos N°580-1995, 633-1994, 5749-1993, and 2197-1992) And more recently, in Voto N°236-2019 of 12:02 on January 9, 2019, which in turn cites Votos N°2018-19030 and 2018-19485 that share the considerations, the operative part, and, where applicable, the dissenting votes, indicated: “IV. The right to retirement and the Social State of Law. Articles 50, 56, and 74 of the Constitución Política configure 'the model of the social and democratic State of Law' (Res. 9255 of 16:03 hours on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law 'entails an orientation of our political regime toward social solidarity, that is, toward equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations' (Res. 13205 of 15:13 hours on September 27, 2005). Consequently, and based on the Social State of Law, 'our Constitución Política contemplates a set of benefit rights related to the protection of … workers' (ibid), as is the case of the right to retirement. (…)”.

VII.- The right to retirement is not an absolute right. Like any other fundamental right, the right to retirement is not unrestricted, since it can be subjected to certain limitations, provided that these are established through formal law, are reasonable, and do not impede its exercise – the essential content is not affected. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement, when it can be proven that certain situations exist, such as inequalities or privileges, that put the sustainability of a regime at risk, and, consequently, threaten the nature of the system as such. On this matter, in Voto number 2379-96 of 11:06 on May 17, 1996, the following was established: II.- ON THE RIGHT TO RETIREMENT.- In repeated rulings, the pension or retirement has been recognized as a fundamental right in favor of the worker. See for all, the pronouncement of this Chamber number 1147-90 at sixteen hours on September twenty-first, nineteen ninety, in which it was established: \"First, this Chamber declares that there does exist a constitutional and fundamental right to retirement, in favor of every worker, in general; a right which, as such, belongs to and must be recognized for every human being under conditions of equality and without any discrimination whatsoever, in accordance with Articles 33 and 73 of the Constitución Política...\" However, in the same cited pronouncement, it was established that said right is not absolute and can be subject to conditions and limitations: \"In reality, it is not ignored that retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are also reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than an expression of a well-known principle of Human Rights Law, which may be called proportionality, and which is generally included as a sine qua non condition of the limitations and restrictions to such rights exceptionally authorized by the very texts that enshrine them.\". From what has been transcribed, it is clear that within the entire universe of limitations, conditions, and restrictions that the fundamental right to retirement may suffer, there will be a group of them that can be predicated as constitutionally valid as long as they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the exercise of the right itself in accordance with its nature and purpose.

It is also correct to conclude that—by imperative of the structural logic of our legal system—the first of the conditions just noted can be expanded to include limitations and conditions that arise from texts of higher rank or of the same rank, as occurs in this case with the limitations that may arise from the Political Constitution itself, understood not only as a grouping of norms, but as a set of integrated regulations and principles aspiring to harmony (…)”. (Emphasis supplied) This principle will be violated when the inequality lacks an objective and reasonable justification; therefore, there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. The principle of equality, together with the right to social security and other fundamental rights, seeks to be satisfied only with the participation of all, in order to satisfy the protected legal interest through a shared responsibility between the individual and society, which is exactly the factual framework of the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution (Ley para Rediseñar y Redistribuir los Recursos de la Contribución Especial Solidaria). In this case, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution seeks, through its article 4, to lower the exempt base from which the solidarity contribution will be collected in accordance with the salary regime to which the retired or pensioned person belongs, in the case of the Retirement and Pension Regime of the Judicial Branch (Régimen de Jubilaciones y Pensiones del Poder Judicial), moving to 6 base salaries of the lowest-paid position. In this way, it is attempting to achieve economic balance and the sustainability of the pension regimes, in order to maintain the same current and future benefits for all persons who opt for retirement. With the mandatory and staggered special solidarity contribution contemplated by the challenged Law, the pension exempt from the special solidarity contribution would be approximately ¢2,550,000 colones for the Retirement and Pension Regime of the Judicial Branch, an amount that allows an adequate standard of living and which is, in turn, far superior to the current pensions of the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) administered by the CCSS, which is the largest in the country. In addition to the foregoing, with regard to article 34 of the Political Constitution10, it must be pointed out that it is improper to rely on the principle of non-retroactivity to sustain the existence of an acquired right (derecho adquirido) or of a consolidated legal situation (situación jurídica consolidada) in favor of a person (or group of them) to indefinitely enjoy a given system, since that would be equivalent to admitting the immutability of the legal system, or what is the same, to freezing the norms that were issued at a historical moment and under certain demographic, social, and economic conditions, among others, which inevitably change over time and to which the State and the legal system must adapt and regulate. In this regard, with respect to the principle of non-retroactivity, acquired rights, and consolidated legal situations, this Honorable Chamber, in Voto N°2765-97 of 15:03 hours of May 20, 1997, stated: "The concepts of 'acquired right' and 'consolidated legal situation' appear closely related in constitutional doctrine. It can be affirmed that, in general terms, the former denotes that consummated circumstance in which a thing—material or immaterial, be it a previously unowned good or a previously non-existent right—has entered into (or had an impact on) the person’s patrimonial sphere, such that the person experiences an advantage or verifiable benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial plus, but a state of affairs fully defined in terms of its legal characteristics and its effects, even when these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still persist or not, but rather that—by virtue of a legal mandate or a judgment that has so declared—a clear and defined rule has already emerged into legal life, connecting a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person’s situation is given by a logical proposition of the type 'if..., then...'; that is to say: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that, necessarily, the conditioned effect must also occur. In both cases (acquired right or consolidated legal situation), the legal system protects—rendering it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing the good or the right already acquired from the person’s patrimony, or of causing that, if the factual presupposition had occurred prior to the legal reform, the (advantageous, it is understood) consequence that the interested party expected from the consolidated legal situation no longer arises. Now, specifically with regard to the latter, it has also been understood that no one has a 'right to the immutability of the legal system,' that is, to the rules never changing. Therefore, the constitutional precept does not consist in the rule that connects the fact with the effect not being able to be modified or even suppressed by a subsequent norm once it has come into legal life; what it means is that—as explained—if the conditioning presupposition has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the former norm from arising. This is so because, it was said, what is relevant is that the state of affairs the person enjoyed was already defined in terms of its elements and its effects, even though these are still being produced or, even, have not yet begun to be produced. Thus, what the person has a right to is the consequence, not the rule.” (Emphasis supplied) Thus, retroactivity is manifested when a legal norm invades the domain of application of the previous one, applying itself to facts that occurred before its entry into force. Therefore, to establish the retroactivity of a norm, it must be defined whether its application is to the future, or whether, on the contrary, it attempts to regulate facts or situations that have already occurred or are in progress. Thus, in light of the cited article 34 as well as the constitutional jurisprudence, the right to retirement or a pension of those who have already fulfilled the age, contributions, and years of service required by law is incontrovertible; however, this condition gives them the right to the consequence, that is, to receive an economic benefit for life, but not to the rule and even less to those that established a specific amount or left the maximum ceiling of the remuneration undefined. Likewise, if the effects have already occurred, the new norm cannot affect them, but it can affect future effects. In this case, the reform in no way determines the return of the retirement or pension amounts that have been paid, but rather its effects will occur in the future and insofar as modifying the amounts exempt from the special solidarity contribution and defining a reasonable ceiling on the future amounts that will be disbursed as a pension. The foregoing, provided that the presupposition established by the questioned norm is met, that is, that the amount received as retirement or pension exceeds more than six times the base salary of the lowest-paid position in the Judicial Branch. Nor can it be overlooked that maintaining the state of affairs sought by the appellants over time would put the continuity of the social security regimes, and not only the retirement and pension regimes, at severe risk, with the consequent detriment to persons who have already achieved the status of retired or pensioned, and to those who have a justified expectation, based on their contributions, of obtaining the right to retirement or a pension in the future. Closely related to the case before us, in Voto N°3250-96 of 15:27 hours of July 2, 1996, the Constitutional Chamber indicated that special contributions are not unconstitutional because they find their basis in the social nature of the right to retirement, a nature that falls within the principles that make up the Social State of Law (Estado Social de Derecho), embodied in article 50 of the Political Constitution; it also ratified the validity of a contribution very similar to the one challenged in this action. On that occasion, it stated the following: “(…) the contribution levied on pensioners of the National Teachers’ Pension Regime (Régimen de Pensiones del Magisterio Nacional) in article 12, and the exclusion of said contribution as an acquired right in Transitory Provision I, both of Law number 7268, do not violate article 34 of the Political Constitution, as they form part of the set of limitations that have validly formed part of the fundamental right to retirement that the plaintiff holds since its entry and from which it cannot withdraw because it acquired them along with it. (…)” Adding further on: “The manner in which article 12 of Law 7268 regulates the contribution levied on pensioners of the National Teachers’ Regime does not contravene article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only defect that was noted when the Legislative Consultation was answered in its day and which the Parliament undertook to amend), thereby leaving practically intact an amount sufficient in the Chamber’s judgment to guarantee the effective enjoyment of the right to retirement, and second, because the amounts charged for the different excesses that occur in specific cases have a clear protective and uniform purpose for the benefit of the group of persons for whom the regime was established; that is, they are directed at the social welfare of all or of the vast majority of the members for whom the regime was conceived. This may entail that in some retirement systems there are redistributive norms for those cases that may be called, if you will, extraneous to the rationale of the regime and that must therefore undergo a process of uniformity to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the regime’s beneficiaries, consequently having to make—if they wish to continue enjoying the system’s benefits—a greater contribution for receiving a greater consideration in relation to the persons who were taken into account when designing the system—in this case, the teachers—, who receive a substantially lower salary and, consequently, so is their retirement or pension. It is therefore fair—due to the solidarity-based nature of the regime—to set a sufficiently high maximum amount that allows including the higher salaries of the fund’s own beneficiaries and to subject those above it to a greater participatory requirement, as they always come from obligations not contemplated among those taken into consideration when establishing the system’s bases.” (Emphasis supplied) By reason of the foregoing, this Ministerial Office considers that the challenged norms do not infringe upon acquired rights, consolidated legal situations, the prohibition of retroactivity, or constitutional jurisprudence. With respect to the issue of legal certainty (seguridad jurídica), it must be considered that the State must provide a regulatory framework that defines with certainty what is prohibited, what is mandated, and what is permitted, as well as the legal consequences in the face of certain facts or acts, so that both institutions and administered persons know what to expect. This presupposes, on the one hand, a certain knowledge of the valid, effective, and current norms and, on the other, a certain stability of the norms and of the situations defined therein. In this regard, the Office of the Attorney General of the Republic (Procuraduría General de la República), in Opinion N°C-058-2004 of February 18, 2004, stated: “From the principle of certainty, various corollaries derive. Among them, clarity and absence of normative confusion, the publicity of norms, and above all, their non-retroactivity. The Law must promote certainty, and this is affected when the norm is confusing, prevents the administered person from knowing what to expect, or if it is applied retroactively, affecting consolidated situations. The Constitutional Chamber has indicated in this regard: “Legal certainty… is the situation of the individual subject as an active and passive subject of social relations, who, knowing or being able to know what the current legal norms are, has fundamental expectations that they will be fulfilled. That legal value seeks to provide certainty against modifications of the Law, seeks to avoid the uncertainty of current Law, that is, arbitrary legal modifications made without prior study and consultation…” (Constitutional Chamber, resolution N° 8390-97 of 16:21 hrs. of December 9, 1997). Now, as has been previously maintained, in the case before us, the principle of non-retroactivity of norms, constitutionally guaranteed (article 34), has been respected, as well as compliance with the general rule; the norms of the challenged Law take effect in the future, six months after its publication, that is, on June 21, 2020, to apply to future income from retirement or pensions that exceed the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch. For this reason, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution reflects respect for the principle of legal certainty on the part of the legislator, by establishing objective criteria and clear rules for the redesign and redistribution of the resources of the special solidarity contribution in a more equitable manner. Regarding the principles of reasonableness (razonabilidad), proportionality (proporcionalidad), and non-confiscation (no confiscatoriedad), it must first be noted that the plaintiffs do not provide evidence or, at least, sufficient elements of judgment on which to base their claim, and the failure to meet these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to carry out the corresponding analysis without the existence of a coherent line of argument, separated from the exposition of subjective and highly abstract concepts. And with regard to the analysis of reasonableness, this Honorable Constitutional Chamber, in Voto N°5236-99 of 14:00 hours of July 7, 1999, indicated: “To undertake an examination of the reasonableness of a norm, the Constitutional Court requires the party to provide evidence or at least elements of judgment on which to base its argument; the same procedural burden corresponds to whoever rebuts the arguments of the action, and the failure to comply with these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to carry out an analysis of reasonableness without the existence of a coherent line of argument that is supported by evidence.” (Reiterated in Votos N°10153-2001 of 14:44 hours of October 10, 2001 and N°14392-2016 of 9:05 hours of October 5, 2016). However, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution cannot be characterized as irrational, disproportionate, or confiscatory, because from the reasons that have been put forward throughout this Report, it follows that the norm was issued by the competent authority, complying with all substantive procedures and indispensable requirements, besides the fact that the purpose, the content, and the motive are licit, possible, clear, and precise and align with the vision of a Social State of Law, which seeks to correct the economic distortions of the Retirement and Pension Regimes, with the aim of ensuring sufficient resources to cover the remunerations for retirements and pensions and guaranteeing their financial stability and sustainability. Furthermore, it must be indicated that the contribution set by the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution is not disproportionate or unreasonable, nor abusive or arbitrary, nor can it be considered that it worsens the socioeconomic conditions of judicial retirees and pensioners, especially considering that article 712 defines that in the case of retirees and pensioners of the Judicial Branch, the special contribution applies only after the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch is exceeded, which, as previously indicated, would currently be remunerations greater than approximately ¢2,550,000 colones, which exceed not only the income of many retired and pensioned persons from other retirement and pension regimes (and by far that of the CCSS) but also that of many salaried persons or independent workers, who currently form part of the economically active population. It must also be considered that the contribution is gradual and progressive. Similarly, it is rejected that the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution is confiscatory and consequently unconstitutional, since in accordance with its article 513, the sum of the solidarity contribution plus the totality of deductions cannot exceed the ceiling of 55% of the gross amount of the pension. In this sense, it is worth emphasizing, as indicated above, that this ceiling is even higher than the minimum established by Convention 102 of the ILO. IV.- PETITION 1.- That the action of unconstitutionality filed against the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution, N°9796 of December 5, 2019, be rejected. 2.- That the appellants be ordered to pay costs (…)”.

14.- By means of a brief filed with the Chamber on June 3, 2020, Alejandra Hernández Sánchez, in her capacity as Vice Minister of Expenditures of the Ministry of Finance (Ministerio de Hacienda), answers the hearing granted and expressly states the following: “(…) On the merits i. On Law Number 9796 “Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution” The object of this law is to contribute to the country’s public finances by applying a redesign of the maximum pension ceilings and the pension exempt from the special solidarity contribution established on special pension regimes. Likewise, the law seeks to grant continuity and applicability to the solidarity contribution as a contribution to achieve the sustainability of pensions, contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in the tax burdens, and give sustainability to the pension systems through the new contributions. Regarding the cited law, when it was known as a Bill by the Office of the Comptroller General of the Republic (Contraloría General de la República), the latter indicated the following: “The sustainability and fiscal impact of pension and retirement regimes has been a constant concern for many years, and has been communicated in multiple documents from the Office of the Comptroller General and other sources. In particular, funded regimes, such as that of the Judicial Branch and the Disability, Old Age, and Death Regime, have been addressed through various studies, with a view to their long-term sustainability, given that they may come to represent a contingent obligation for the State. In the case of regimes financed from the National Budget, which are closed to new entrants, these already generate a deficit for the Government directly. This reality has given rise, as the bill points out, to some reforms for the establishment of measures that contribute to sustainability, or that reduce the effect of said regimes on public finances.” In line with what was noted, this Office considers that the variation in the amount of the pension exempt from the special solidarity and redistributive contribution in the pensions of the Pension Regimes indicated in its numeral 2, among these, the one established in Law N° 8 called “Organic Law of the Judicial Branch” (Ley Orgánica del Poder Judicial), specifically, the reform of subsection a) of article 236 bis of said normative body, does not violate any fundamental right, but rather responds to the constitutional principles of reasonableness, proportionality, equity, and financial balance. The appellants allege that the cited Law number 9796 violates the constitutional principles of equality, legal reasonableness, non-retroactivity of the law, consolidated legal situations, legal certainty and intangibility of one’s own acts, and non-confiscation, which will be analyzed separately. ii. On the violation of the principle of equality and alleged discriminatory categorization of pensions: The appellant indicates that the Judicial Branch personnel contribute 13.5% of their salary for their pension, while the rest of the population contributes 3.8%. Furthermore, retired judicial persons continue with a similar contribution, equally disparate in relation to the rest of the pension regimes. It affirms that the pension regime of the Judicial Branch is self-sufficient and does not need help for its sustainability. It accuses that the reform specifically affects one group over any other pension regime, that is, judicial retired persons, for whom, due to the amount of the deductions, special contributions, CCSS, and taxes; it makes their patrimony tend ineluctably to diminish progressively and acceleratedly. Likewise, it alleges that this contribution is not rational and creates inequalities for those who are pensioned, generating a deterioration in their economic condition, by setting confiscatory deduction levels, which are not supported by technical and/or specialized studies that involve all the socioeconomic, actuarial, and quality-of-life factors of those who contribute to the regime, generating an economic deterioration of great proportions. It adds that Law N° 9796 injures the principle of reasonableness, posing as an essential problem the discernment of a normative decision and how it would allow an unequal treatment to be reasonable. It indicates that this is the unresolved question of the law it challenges, by virtue of the fact that its foundation is inconsistent or even disproportionally burdensome for the sector of retired judicial persons, without there being any gradualness that allows applying the regulation in a manner respectful of the stages of permanence in the regime. Rights that must and have to be above the “pro-regime” principle so much talked about these days, which dehumanizes the reality and the very purpose of the pension. On this point, it is important to indicate that the pension regimes are created within a framework of sustainability over time, in observance of the principles of solidarity and sufficiency established in the doctrine of social security. Likewise, said sustainability is paired with economic and financial balance in safeguarding public finances, given that these must maintain a balance, procuring the satisfaction and payment of the respective amounts to the pensioned persons. For this reason, it is considered opportune to reiterate the necessary weighing between the principle of budgetary balance and the benefits to be provided by a Social State of Law, to which the Constitutional Chamber referred in considerando IV of resolution N°19511-2018 of 21:45 hours of November 23, 2018, which resolved the optional consultations on the constitutionality of bill N.° 20.580 (now the Law for the Strengthening of Public Finances, Law N.° 9635 of December 3, 2018), which due to its relevance is transcribed below: “…On this point, faced with a critical condition in public finances (duly supported by technical studies), that puts the effective or adequate execution of constitutionally relevant benefits at risk, the decision of the competent authorities to define and apply suitable measures to palliate or solve the problem is not only reasonable but, even more, is unavoidable. (…) In this context, a harmonious interpretation of the principle of budgetary balance and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there must inexorably be a balance between benefit rights and state economic solvency, since the former depend on the material possibilities provided by the latter, while the purpose of the latter is to strengthen the development of a solidary political system, one in which the less favored strata of society find protection for their human dignity and their right to progress. Put another way, the ‘ideal’ Social State of Law is the ‘possible’ Social State of Law, against which one precisely acts when the principle of budgetary balance is breached, since, in the medium term, that seriously risks or completely prevents obtaining the necessary resources to sustain a ‘real’ Social State of Law, one that the most vulnerable can truly and effectively enjoy. (…) Corollary of what was expressed: the non-observance of the principle of budgetary balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and emphasize its real implementation for the sake of the principle of the Social State of Law. (…)” There is no doubt that the weakened state of public finances has forced the country to have to take and apply unavoidable measures that contribute to achieving the balance to which the Constitutional Chamber refers, in the interest of having economic solvency to attend to the benefits to be provided by the State and giving sustainability to the pension regimes. The constitutional precepts that support those healthy finances compel the State to always have as its purpose satisfying the needs of the country’s inhabitants, without entailing an irresponsible increase in spending, nor neglecting some needs for the benefit of others. In this regard, constitutional article 33 develops the theme of equality before the law as follows: “Article 33.- Every person is equal before the law and no discrimination contrary to human dignity may be practiced.” On the other hand, we have that constitutional Article 50 develops the theme that the State must ensure an adequate distribution and management of public resources, as follows: “The State shall seek the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth…” The principle of equality does not purport to be absolute in nature, since it does not properly grant a right to be equated with any individual without distinction of circumstances or conditions; on the contrary, it requires that no distinctions be made between two or more individuals or groups thereof, who are in either identical conditions or in the same legal situation, and therefore equal treatment cannot be expected when the conditions or circumstances are unequal. On this subject, in resolution number 1372-1992 dated May 26, 1992, the Constitutional Chamber held the following: “The constitutional principle of equality generates the administrative principle of equality before public charges, that is, giving the same treatment to those who are in analogous situations, excluding all arbitrary or unjust distinction against certain persons or categories of persons; consequently, persons or goods that are singularly determined should not be affected, for if that were possible, taxes would have a persecutory or discriminatory character. Generality is an essential condition of a tax; it is not admissible that one part of the subjects be taxed and another exempted.” (Resolution N° 4829-1998 and in a similar sense, 580-1995, 633-1994, 5749-1993 and 2197-1992) “III.- Constitutional jurisprudence, through several pronouncements, has managed to refine the content of the principle of equality established in article 33 of the Constitution, pointing out that through it, making differences between two or more persons who are in the same legal situation or in identical conditions is prohibited, without being able to expect equal treatment when the conditions or circumstances are unequal; it grants, in principle, equal treatment to equal situations and makes possible different treatment for different situations and personal categories.

That simple formula was recognized many years ago by the Constitutional Court, previously the Supreme Court of Justice, which had jurisdiction over unconstitutionality claims before the creation of this specialized Chamber. But the requirement of equality does not legitimize just any inequality to authorize differentiated treatment; to determine whether discrimination is truly justified, one must analyze whether the reason producing it is reasonable, that is, whether, considering the particular circumstances of the case, different treatment is justified." Such equality shall be violated when the inequality lacks an objective and reasonable justification; therefore, there must necessarily be a reasonable relationship of proportionality between the means employed and the purpose itself. The principle of equality, together with the right to social security and other fundamental rights, seeks to be satisfied only through the participation of all. The intent is for the protected legal interest to be satisfied through shared responsibility between the individual and society. Thus, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution seeks to safeguard this. In the present case, Law No. 9796, cited above, seeks, through its Article 4, to lower the exempt base so that, from that point onward, the solidarity contribution is charged in accordance with the salary regime to which the official belongs, among them the Pension Regime established in the Organic Law of the Judicial Branch, providing as follows: b) Up to six (6) base salaries of the lowest-paid position in the Judicial Branch for the case of pensions and retirement benefits provided for in Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937. In this way, economic balance and the sustainability of pension regimes are being sought, in order to maintain the same current and future benefits for all persons who opt for retirement. We must remember that, precisely in accordance with the principle of equality, differentiations must be established for unequal circumstances, thus fulfilling the principle of equality, so that unequals are treated unequally. Under these premises, it would be unconstitutional for pensions charged to the National Budget not to be regulated gradually in accordance with the amount to be received, based on the contributions made and the time worked, and establishing a maximum and fair ceiling according to those circumstances. Currently, a percentage of State income is allocated to the payment of this item, while the remaining percentage comes from taxes paid by all Costa Rican persons, a situation that violates the just distribution as a constitutional legal interest and rewards some retirees with a very high standard of living for their life as a pensioner, as if they were still in their productive life. With the special solidarity contribution, mandatory and staggered, provided for in Law 9796 in question, the minimum contribution base would be reduced to the base amount of 2 million 600 thousand colones, in the case of the Judicial Branch regime, an amount that allows an adequate standard of living and is far superior to the current pensions of retirees under the Disability, Old Age, and Death Regime administered by the Costa Rican Social Security Fund. On the other hand, regarding the alleged discriminatory categorization of pensions, it should be noted that pension regimes are created within a framework of sustainability over time, in observance of the principles of solidarity and sufficiency established in the doctrine of social security. iii. On the Principle of Non-Retroactivity of the Law: Regarding the alleged violation of the principles of non-retroactivity (irretroactividad) and patrimonial intangibility, in the present case, there is actually no controversy over the right to a pension (there is a right to the payment of an economic benefit, but not to a specific amount), given that it concerns, rather, the "future" application of a special, mandatory, and staggered solidarity contribution, whose minimum contribution base is reduced by virtue of the reform referred to in cited Law 9796. On this aspect, the plaintiff argues that the constitutional guarantee of non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired asset or right from a person's patrimony. He points out that what is relevant is that the state of affairs the person enjoyed was already defined as to its elements and its effects, even if these are still being produced or have not even begun to be produced. Thus, he considers that the person has a right to the consequence, not to the rule. Therefore, he indicates that acquired rights must be understood as rights that definitively enter the patrimony of their holder (they do not fall under the concept of mere expectations) and that consolidated legal situations are those that can never be modified. He claims that the reform established in Law No. 9796 affects the acquired rights of all persons who have already contributed and been granted pensions under the guidelines issued for the pension fund in the Organic Law of the Judicial Branch, and therefore those rights must continue as they were granted before the enactment of the challenged Law; otherwise, legally granted rights would be violated, affecting the economic, family, security, and quality-of-life situation of the majority of older adults, who depend on this right for their maintenance. He indicates that the deputies, in their discussions, referred to an actuarial study which points out that pensions should not be granted in amounts exceeding 2,600,000 colones, but that recommendation is for the future; the study at no point indicates that the fixing is retroactive. He adds that, from the moment a worker enters the retirement regime, they are protected not only by the legal and regulatory rules and criteria of the regime itself, but also by the constitutional norms and principles that enshrine their right to retirement or surround it with the special guarantees of the Fundamental Law, among these the one that prohibits giving the former retroactive effect to the detriment of any person, or of their acquired rights or consolidated legal situations, as well as the doctrine of "own acts" (actos propios), according to which public authorities cannot go against their own declaratory acts of rights, except for strictly regulated exceptions. Likewise, he considers that the Law challenged here is contrary to the provisions of Article 73 of the Political Constitution, which endows pensions and retirement benefits with the character of a constitutional right. In the first instance, we must indicate that in our context, various special pension regimes have been created by legislative means, substituting the general disability, old age, and death regime administered by the Costa Rican Social Security Fund. The existence of these special regimes has been repeatedly endorsed by the Constitutional Chamber, for example, in its judgment number 846-92 of 1:30 p.m. on March 27, 1992, in which it held that the existence of special retirement or pension regimes is not contrary to the Constitution, provided that the State's contribution as such is equal for all regimes. Based on the foregoing, it is important to point out that the Legislative Assembly has not only the possibility, but the duty, to adopt the necessary measures to guarantee the sustainability of the various special pension regimes, through the approval of the laws necessary to achieve that objective. On the other hand, it must be remembered that this principle has constitutional value, as established in Article 34 of our Political Constitution, let us see: "Article 34: No law shall be given retroactive effect to the detriment of a person, or of their acquired patrimonial rights or consolidated legal situations." Likewise, the Principle of Non-Retroactivity is defined in doctrine as follows: "Retroactivity is understood as the projection of the temporal scope of norms to facts or conduct prior to their enactment"... "Those past situations, to which present legal consequences are connected, may have been entirely completed in the past (true retroactivity), or may have begun in the past and extended into the present (improper retroactivity)." A. PEREZ LUÑO: Legal Certainty, Editorial Ariel S.A., Barcelona, 1991, p. 91. That is, if the effects have already been realized, the new norm cannot affect them, but it can affect effects in the course of execution where effects have not yet been generated. Conversely, improper non-retroactivity must be resolved by taking into account the occurrence of the fact to which the norm connects a legal effect. On this matter, the author Juan Alfonso Santamaría Pastor defines non-retroactivity in the following terms: "That is, to the extent that the extension of the effects of norms to facts and conduct occurring prior to their effectiveness is limited by acquired patrimonial rights and legal situations consolidated under other norms, these other norms, which are no longer formally in force, continue to regulate those rights and those legal situations (see, SANTAMARÍA PASTOR, Juan Alfonso, Foundations of Administrative Law, 1991, p. 384.)." Likewise, the Constitutional Chamber has ruled on the Principle of Non-Retroactivity in the following terms: "The concepts of 'acquired right' and 'consolidated legal situation' appear closely related in constitutionalist doctrine. It is possible to affirm that, in general terms, the former denotes that consummated circumstance in which a thing - material or immaterial, be it a previously alien good or a previously nonexistent right - has entered into (or had an impact on) the patrimonial sphere of the person, such that the person experiences a verifiable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial plus, but a state of affairs fully defined as to its legal characteristics and its effects, even when these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not that those effects still persist or not, but that - by virtue of a legal mandate or a judgment that has so declared - a clear and defined rule has already emerged into legal life, connecting a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then'; that is to say: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that the conditioned effect must necessarily also occur. In both cases (acquired right or consolidated legal situation), the legal system protects - rendering it intangible - the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired asset or right from the person's patrimony, or of causing that, if the factual presupposition had occurred prior to the legal reform, the (beneficial, it is understood) consequence that the interested party expected from the consolidated legal situation no longer arises. Now then, specifically with regard to the latter, it has also been understood that no one has a 'right to the immutability of the legal system,' that is, that the rules never change. Therefore, the constitutional precept does not consist in the idea that, once it has emerged into legal life, the rule connecting the fact with the effect cannot be modified or even suppressed by a subsequent norm; what it means is that - as explained - if the conditioning presupposition has occurred, a legal reform that changes or eliminates the rule cannot have the power to prevent the conditioned effect that was expected under the previous norm from arising. This is so because, it was said, what is relevant is that the state of affairs the person enjoyed was already defined as to its elements and its effects, even though these are still being produced or, even, have not begun to be produced. Thus, what the person has a right to is the consequence, not the rule..." Resolution No. 2765-97 of 3:03 p.m. on May 20, 1997. From the foregoing, it is understood that an element for stipulating whether a legal norm operates retroactively and for establishing the application of laws over time is the existence of legal situations. Now then, the consolidated legal situation is a subjective situation, because it is the consequence of an individualization of the normatively established rule, and which grants or recognizes a right or removes a legal quality or status from them. Likewise, in judgment number 2765-97, of three hours and three minutes in the afternoon on May twentieth, nineteen ninety-seven, the Constitutional Court stated the following regarding the scope of the Principle of Non-Retroactivity: "In this case, the constitutional guarantee of non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired asset or right from the person's patrimony, or of causing that, if the factual presupposition had occurred prior to the legal reform, the (beneficial, it is understood) consequence that the interested party expected from the consolidated legal situation no longer arises. Now then, specifically with regard to the latter, it has also been understood that no one has a 'right to the immutability of the legal system,' that is, that the rules never change. Therefore, the constitutional precept does not consist in the idea that, once it has emerged into legal life, the rule connecting the fact with the effect cannot be modified or even suppressed by a subsequent norm; what it means is that - as explained - if the conditioning presupposition has occurred, a legal reform that changes or eliminates the rule cannot have the power to prevent the conditioned effect that was expected under the previous norm from arising. This is so because, it was said, what is relevant is that the state of affairs the person enjoys was already defined as to its elements and its effects, even though these are still being produced or, even, have not begun to be produced. Thus, what the person has a right to is the consequence, not the rule." In the case under analysis, the new precept is not suppressing the granted benefit. All it does is regulate a future situation, in the sense that it expands the grounds for restitution by virtue of eventual future acts, in which the beneficiary might incur. From this perspective, the norm has no effect of a retroactive nature affecting an acquired right or its consequences or effects, since it is situated in the future. Moreover, it is sufficient for the administered party to resolve not to incur in one of the new grounds, to avoid the future application of the new law." Thus, retroactivity manifests itself when a new legal norm intends to invade the domain of application of the previous one, applying itself to facts that occurred before its entry into force. If one wishes to establish whether a norm is retroactive, it must be defined whether its application is for the future, or, on the contrary, whether it attempts to disrupt facts or situations already completed or in the course of execution. In light of the provisions of cited Article 34, it must be understood that the referred contribution must be applied to pensions that are in progress and those granted in the future, that is, there is no violation of the principle of non-retroactivity since the premise contained in said article is not met. The foregoing, provided that the presupposition established by the questioned norm is fulfilled, that is, that the amount received as a pension exceeds more than six times the lowest base salary paid in the Judicial Branch for the case of pensions and retirement benefits in Law No. 8, Organic Law of the Judicial Branch, dated November 29, 1937. Furthermore, as we have already indicated, the intention of applying said contribution to pensions is not to require pensioned persons to return the amounts paid to them up to June 21, 2020 (acquired right) as a pension, since the application of the deduction for the cited contribution is being applied going forward. Said contribution payment, by way of contribution, responds to the objectivity required to maintain both the economic equilibrium of the resources and the security for current and future pensioned persons, and thereby provide stability to the regime, which can only be achieved by applying the repeatedly cited Law number 9796, and therefore, in no way implies a violation of the Principle of Non-Retroactivity as the plaintiff contends. It is reiterated that the stability or sustainability of pension regimes must not suffer financial imbalance; on the contrary, what is sought is that with the application of the norm, and therefore the referred contributions, permanence is provided to the retiree and their pension is not compromised, so that other solutions that could compromise the existence of the budget allocated for that purpose need not be sought. In the case under study, there is no injury to the prohibition of retroactivity, since the questioned norm has provided for the mandatory application ex nunc (from now on) and not ex tunc (from then on), of a certain special, mandatory, and staggered solidarity contribution; whose minimum contribution base is reduced, by virtue of the referred reform, to apply the charge to a base amount of 2 million 600 thousand colones, both to future pensions and to pensions and retirement benefits in the course of payment. From the effective date of cited Law number 9796 and into the future, the rules regarding the establishment of that minimum application threshold for pensions are different, thereby seeking to compensate for past imbalances and guarantee the survival of the system; thus, acquired rights are also not affected, since what has been recognized is a fundamental right to a pension, but not to a specific amount. According to the dynamic meaning of acquired rights, the emergence of the right must be differentiated from its effects; the right arises from the exhaustion of the hypotheses provided for in the regulations; that is, they respond to exhausted situations, while the effects are projected into the future and may be varied by virtue of new norms. Thus, the distinction between rights and their effects allows the application of new laws to the successive effects of a right, without this implying that such laws have retroactive effects. It is concluded that these dynamic theses suggest that acquired rights may have two components: an intangible core represented by the right itself, and some dynamic elements, which may vary over time and which relate mainly to the conditions under which the right can be exercised or to the periodic benefits arising from it. Thus, based on that conceptual premise, it can be affirmed that the Constitution protects acquired rights against normative retroactivity; that is, situations already formed and not the conditions of exercise of the right, which means that whoever is enjoying a right whose effects are consolidated in a staggered manner or in successive stages - such as a pension, for example - has their right protected by the Constitution, but the effects that have not yet been consolidated are modifiable by virtue of constitutional purposes and subject to the limits that the Constitution itself imposes. Likewise, it should be indicated that, although there is a fundamental right to a pension widely consolidated in the jurisprudence of the Constitutional Chamber, that Court has also specified that there is no right for the benefit derived from that right to be for a specific amount, since "...the pension or retirement benefit may vary according to the circumstances, whether to recalify the benefit by increasing or decreasing it, when the contribution of the benefits is not sufficient to cover its share in the cost of the regime..." (Judgments 1925-91 of 12:00 noon on September 27, 1991, 2379-96 of 11:06 a.m. on May 17, 1996, and 3250-96 of 3:27 p.m. on July 2, 1996). Thus, in judgment 1925-91 of 12:00 noon on September 27, 1991, that Court ruled on a consultation on constitutionality filed by several deputies, regarding the validity of a comprehensive reform to the Law on Pensions and Retirement Benefits of the National Teaching Profession. Among the topics consulted was the validity of the then-Article 6 of the bill, since it was considered that it might violate the principle of constitutional reasonableness by providing that any person enjoying a pension would be excluded from the possibility of holding positions in the Public Administration. This Chamber, in the aforementioned judgment, held that the norm did not violate the Constitution, but, on the contrary, was consistent with the principle contained in Articles 50, 56, and 74 of the Political Constitution, according to which, the State must promote the most adequate distribution of wealth, organizing production and fostering that everyone has honest and useful employment; since resources and means of subsistence are limited, it is not unreasonable to restrict the simultaneous receipt of a pension and a salary from the State: "The Political Constitution, in the Chapter on Social Rights and Guarantees, declares its adherence to the Christian principle of social justice, which is the cornerstone of all solutions that the legislator must issue regarding the social question. Thus, there are values and principles constitutionally assumed such as solidarity, equality, and the effective participation of all in the economic life of the country, which are an expression of that essential cause of the social. Indeed, Article 50 establishes that the State must procure the greatest well-being for all the inhabitants of the country, having to organize and stimulate production and the most adequate distribution of wealth; Article 56 indicates that the State must procure that everyone have honest and useful employment; and Article 74 declares that the legislation enacted to organize the factors that concur in the production process (social and labor legislation) must, essentially, be based on the indicated principle. Consequently, starting from the premise that the means of production and subsistence are not unlimited, that a sector of the population, as is public and notorious, lacks justly remunerated occupation, and that social rights and guarantees are based on these essential principles and values, the provision intended to be approved is not irrational. If one of the goals of the State is the better distribution of wealth to achieve, among other things, the incorporation of all into productive life, it cannot be contrary to reason to prevent the accumulation of resources in some to the detriment of the needs of others, which would implicitly entail the accumulation of privileges that are not based on a situation of need, to the detriment of those who, legitimately aspiring, find access to the right to work, to honest subsistence, and to their self-realization closed, for causes beyond their own will. The Chamber does not share the terms of the Consultation, to the effect that the bill excludes retired or pensioned persons, in a general manner, from holding positions in the Public Administration. What the norm proposes is to reiterate a concept of longstanding identity, which is to avoid the simultaneity of holding a public function and enjoying a retirement benefit." Now then, in the specific case of special contributions, this Chamber, in its judgment No. 3250-96 of 3:27 p.m. on July 2, 1996, indicated that such contributions are not unconstitutional because they find their basis in the social nature of the right to retirement, a nature that falls within the principles that make up the Social State of Law, as set out in Article 50 of the Political Constitution. In the mentioned resolution, the Constitutional Chamber ratified the validity of a contribution very similar to the one challenged in this action. On that occasion, it stated the following: "... the contribution charged to pensioners of the Pension Regime of the National Teaching Profession in Article 12, and the exclusion from said contribution made as an acquired right in Transitory Provision I, both of Law number 7268, do not violate Article 34 of the Political Constitution, as they form part of the list of limitations that have validly formed part of the fundamental right to retirement that the plaintiff has held since his entry and from which he cannot withdraw because he acquired them along with it. (…) The manner in which Article 12 of Law 7268 regulates the contribution charged to pensioners of the National Teaching Profession Regime does not contravene Article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only fault noted when the Legislative Consultation was evacuated at the time and which the Parliament undertook to amend), thereby leaving practically untouched an amount sufficient in the Chamber's judgment to guarantee the effective enjoyment of the right to retirement; and second, because the amounts collected for the various excesses that occur in specific cases have a clear protective and uniforming purpose for the benefit of the group of persons for whom the regime was established; that is, they are directed at the social well-being of all or at least the great majority of the members for whom the regime was conceived. This may entail that in some retirement systems there exist redistributive norms for those cases that can be called, if you will, extraneous to the rationale of the regime and that must therefore undergo a process of uniformization to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the regime's beneficiaries, consequently having to make – if they wish to continue enjoying the system's benefits – a greater contribution for receiving a greater compensation in relation to the persons who were taken into consideration when designing the system – in this case, the teachers – who receive a substantially lower salary and, consequently, so is their retirement or pension. It is just therefore – due to the solidarity-based nature of the regime – to set a sufficiently high maximum amount that allows for the inclusion of the higher salaries of the beneficiaries belonging to the fund and to subject those above it to a greater participatory requirement, as they always stem from obligations not contemplated among those taken into consideration when setting the bases of the system." (Emphasis is not in the original). In this regard, it must be taken into consideration that the guarantees that the Constitution provides in favor of pensioned persons cannot be interpreted as curtailing the legislator's exercise of the function that the Constitution itself has entrusted to them, because that would be to petrify the dynamic exercise of legislating on specific groups of individuals, to the frank detriment of the generality. It is for this reason that this Office considers that the questioned norms do not infringe upon acquired rights, consolidated legal situations, the prohibition of retroactivity, nor the doctrine of the survival of the abolished law. iv. On acquired rights and consolidated legal situations Our Political Constitution establishes the rules governing the effectiveness and efficacy of legal norms; it is thus that this Fundamental Charter indicates that a legal norm maintains its effectiveness and the possibility of producing legal effects until it is repealed by a subsequent one2 or declared unconstitutional by the Constitutional Chamber. This means that legally, the law is mandatory and applicable as long as the act of the corresponding authority aimed at putting an end to that mandatory nature has not been produced. The foregoing in no way means that the Administration can or should disregard the rights acquired in good faith or the consolidated legal situations upon the disappearance of a norm, because such an action would go against the provisions of Articles 34 of the Constitution4 and 193 of the Law of Constitutional Jurisdiction.

Indeed, Article 193 of the Constitutional Jurisdiction Law establishes that the provision contained in Article 91 of that body of law shall not be applied with respect to those legal relationships or situations that have been consolidated by prescription or lapse, by virtue of a final judgment having the authority of material res judicata, or by consummation in fact, when these are materially or technically irreversible, or when their reversal seriously affects rights acquired in good faith; all of the foregoing, without prejudice to the powers of the Constitutional Chamber, in accordance with said article.

Now then, since an adequate understanding of the legal scope of the concepts "rights acquired in good faith" and "consolidated legal situations" is relevant, we will set forth below what legal doctrine and administrative and judicial case law have said on the matter. For Costa Rican doctrine, a right is acquired or a legal situation is consolidated when the de facto situation provided for by the norm occurs, so that the effects regulated by that same provision are produced. For his part, Diego Baudrit Carrillo, a Costa Rican jurist, makes an accurate distinction between acquired rights and mere expectations of a right, pointing out that the former are those that have definitively entered the holder's patrimony and that, therefore, a third party cannot dispossess them of them, while an expectation can indeed disappear by a private will alien to its holder. In this sense, German Cascante Carrillo tells us that an acquired right is one that, by reason of the law itself, is irrevocably and definitively incorporated into a person's patrimony, for which reason, he adds, when new legislation clashes with, suppresses, or modifies the preceding legal situation, in principle and by effect of the non-retroactivity of laws, unless expressly indicated otherwise, acquired rights are respected by the new law.

For the delimitation of the concept of acquired right, the jurist García Trevijano sets forth three criteria. The first of them emphasizes the mode of acquiring rights, considering as such only those recognized in private titles, but not those derived from a law. For the author, this position is not convincing, since there "is no doubt that acquired rights can derive from a singular law like any other legal act (…)". The second criterion proposes the differentiation between subjective right and reflexive right, and also between the right in itself and the expectation of the right. In this way, only those cited in the first place in each of the two alternatives could be considered as acquired rights. This thesis, of clear German inspiration, understands that the central core of acquired rights would be constituted by patrimonial rights and fundamentally by property. The combination of the previous thesis with the one proposed below provides a method for defining the concept under analysis. This third criterion proposes investigating, in each specific case, whether the right has been exercised or, at least, whether it has been possible to exercise it. Only in the event that the previous questions could be answered affirmatively could one speak with certainty of the existence of an acquired right.

By reason of the foregoing, it is observed that for an acquired right to exist, the fulfillment by the right holder of the requirements established by the legal system is necessary. This is so that it is irrevocably incorporated into their patrimony, becoming a certain and unmodifiable right of which the holder can no longer be dispossessed, not even by virtue of the promulgation of new legislation. This is because an acquired right exists when all the normative assumptions provided for in the law in force have been realized as the generating cause of such a right.

Now then, the consolidated legal situation is the position in which the holder of the acquired right finds themselves, whether this is a product of law or of contract. For example, the creditor is in a consolidated legal situation because they are the holder of an acquired credit right. While the acquired right is the credit, their position as creditor constitutes a consolidated situation.

On this particular matter, the Constitutional Chamber has repeatedly ruled on the concepts of "rights acquired in good faith" and "consolidated legal situations," pointing out that these figures are logical consequences of the constitutional guarantee of the non-retroactivity of the law, enshrined in Article 34 of our Political Constitution. Furthermore, that constitutional Court has pointed out that the word "law" must be understood in its generic sense, as referring to legal norms in general. From its beginnings, the Constitutional Chamber has been pointing out that the principle of non-retroactivity, like the others relating to fundamental rights or freedoms, is not merely formal but also material. In this way, it is affected not only when a new norm or the amendment of a previous one illegitimately alters acquired rights or situations consolidated under the protection of the previous norm, but also when the effects, interpretation, or application of the latter produces an unreasonable or disproportionate harm to the holder of the right or situation that it itself enshrines.

For the Constitutional Chamber, a legal situation can be consolidated with a judicial ruling that declares or recognizes a disputed right, and also under the protection of a legal norm that establishes or guarantees certain consequences that a subsequent law cannot disregard without incurring a defect of unconstitutionality, due to infringement of Article 34 of the Political Constitution. The concepts of "acquired right" and "consolidated legal situation" appear closely related in constitutionalist doctrine. The acquired right denotes that consummated circumstance in which a thing –material or immaterial, whether a previously alien good or a previously non-existent right– has entered into (or had an impact on) the patrimonial sphere of the person, such that the person experiences an ascertainable advantage or benefit. Also, the Constitutional Chamber has pointed out that the acquired right is that which has been definitively obtained, due to the validity of the norm, even when the norm has formally expired, provided that it gave foundation to the enjoyment of the right, to the extent that there is no need to resort again to the annulled text, for if this were the case, evidently it is no longer possible to grant any benefit, for the reason that it was annulled.

For its part, the consolidated legal situation represents not so much a patrimonial gain, but a state of affairs fully defined as to its legal characteristics and its effects, even when these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still endure or not, but that –by virtue of a legal mandate or a ruling that has so declared– a clear and defined rule has already emerged in legal life that connects a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the "if..., then..." type; that is to say: if the conditioning fact has occurred, then the "consolidated legal situation" necessarily implies that the conditioned effect must also occur. In both cases (acquired right or consolidated legal situation), the legal system protects –rendering it intangible– the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing the good or right already acquired from the person's patrimony, or of causing that, if the factual premise had occurred prior to the legal reform, the consequence (beneficial, it is understood) that the interested persons expected from the consolidated legal situation no longer arises.

Now then, specifically in relation to the latter, it has also been understood that no one has a "right to the immutability of the legal system," i.e., that the rules never change. Therefore, the constitutional precept does not consist of, once born into legal life, the rule that connects the fact with the effect cannot be modified or even suppressed by a subsequent norm; what it means is that –as explained– if the conditioning premise has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the previous norm from arising. This is because, as stated, what is relevant is that the state of affairs the person enjoyed was already defined as to its elements and its effects, even though these are still being produced or even have not begun to be produced. In this way, what the person has a right to is the consequence, not the rule.

Now then, in the case sub examine, it is feasible to exemplify the previous concepts based on the elements of the specific case. In this way, the contribution shall be paid on the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch, so we can say that: a) The protection of the acquired rights of pensioned persons means, in this case, that notwithstanding the entry into force of the mentioned Law Number 9796, all the patrimonial rights of said pensioned persons must be deemed irrepeatable, i.e., the pensioned person does not have to pay any money to the Administration for the amount they contributed by way of contribution to the respective regime before the entry into force of the questioned law. To the extent that they had definitively entered the patrimony of these persons prior to the entry into force of the new law, it would be absurd –and unconstitutional– to attempt to have them returned, or anything similar. b) The protection of consolidated legal situations implies that, although the interested persons could not claim that the norms in question (and, with them, the rule they created) could never again be subject to reform, they did have the right to expect that with respect to themselves and all the other persons subject to the same state of affairs, the consequence they anticipated would occur. That state of affairs was characterized by the rule that causally connected their factual situation with the effect provided for in the norm. The fact that the rule has been reformed cannot have the virtue of producing that, for them, the consequence to which they already had a right no longer arises. This could only occur, ex nunc, for those who, on the date of the legal reform or the declaration of unconstitutionality, had not acquired that title.

This means that all the payments that pensioned persons would have enjoyed before the legal reform that modifies the amount exempt from the special, solidarity, and contributory Contribution can be classified as acquired rights in the terms set forth above. After said reform, only those consolidated legal situations would be protected, i.e., those situations whose effects have already been produced under the protection of the norm that was reformed. On this last aspect, it is important to insist, for the sake of clarity, that the fact that a pensioner had been enjoying, for "x" number of years, a pension without the application of any additional contribution, by way of contribution to the regime, does not mean they have an acquired right or a consolidated legal situation regarding this benefit, because as of when the norm was reformed, there is no longer a legal basis that covers said payment. Let us remember that the enjoyment of a specific amount by way of future pension cannot be qualified as an acquired right or a consolidated legal situation, but as an expectation of a right.

In addition to the foregoing, it is necessary to indicate that the legislator can modify the conditions of pension regimes without this implying the violation of any acquired right. What is more, this Honorable Chamber has stated that the implementation of limitations on pension regimes does not represent any problem of constitutionality, as long as said limitations adhere to the principles of reasonableness and proportionality. Hence, the amount of future pensions may vary as long as they are not completely suppressed, since if they are suppressed, that would imply that the right to the pension has been revoked in disregard of the protection of acquired rights. In short, the guarantees that the Constitution contemplates in favor of pensioned persons cannot be interpreted in the sense of curtailing from the legislator the exercise of the function that the Constitution itself has entrusted to them, because that would be to petrify the dynamic exercise of legislating on specific groups of individuals, to the frank detriment of generality.

v. On the constitutional principle of rationality and proportionality.

As part of the foundation set forth by the plaintiff in their pleadings, they indicate that the percentages established in the questioned law are applied to gross amounts, which generates a double levy on the monies received, since that deduction is applied on top of mandatory deductions that each pensioned person must pay, such as income tax and the percentage of 13% mandatory contribution to the regime, becoming a double tax rate on the same benefit, which they consider improper and evidences the tax voracity sought to be imposed on pensions. For the foregoing, they also consider that the challenged regulations are contrary to Article 40 of the Political Constitution.

Now then, to carry out an examination of this aspect, it is necessary for the plaintiff to provide evidence or, at least, elements of judgment on which to support their argumentation, given that failure to comply with those requirements makes the claims of unconstitutionality unacceptable. The foregoing is due to the fact that it is not possible to perform an analysis of "reasonableness" without the existence of a coherent line of argument that is evidentially supported. From the study of the action, it is observed that it not only does not clearly and concisely indicate the reasons that lead them to conclude that the questioned norm is unreasonable, but it also does not provide any evidence that would allow that conclusion to be reached, transforming the debate into an exposition of subjective and highly abstract concepts. On the other hand, this case does not present the characteristics of an evident and manifest "unreasonableness" that is also easily perceptible; rather, it could be justified that the norm conforms to the purpose of the legislative reform, which is to correct the economic distortions of the pension system charged to the National Budget, with the aim of ensuring pension payments and guaranteeing the financial stability of the system.

vi. On the violation of the principle of protection of elderly persons.

In addition to the foregoing, with respect to this claim, the plaintiff indicates that the right to a retirement forms part of the list of rights to be protected by the constitutional judge, rights that, although they may be limited, these limitations must be imposed in accordance with international agreements with supra-constitutional weight that increase the spectrum of protection of workers' rights: for example, ILO Convention No. 102. Based on the foregoing, they claim that the Judicial Branch pension fund cannot be modified through the law they challenge in this venue, first, because it threatens the higher value of international norms; second, and more importantly, because it must be interpreted in accordance with the pro homine principle in favor of retired persons, i.e., the non-affectation of their fundamental human rights and those of vulnerable groups: even less so to regulate aspects that are not proper to the pension regime itself, but to be diverted to sustain public finances or other pension regimes that have been neglected and inefficient in their management. For the foregoing, they consider that the challenged regulations are contrary to Article 7 of the Political Constitution and have irreversible consequences for the retired elderly population.

In this regard, we must indicate that although a fundamental right to a pension exists, widely consolidated in the jurisprudence of the Constitutional Chamber, it has also been specified that there is no right for the benefit derived from that right to be for a specific amount, because "…the pension or retirement can be varied according to circumstances, whether to recalibrate the benefit by increasing or decreasing it, when the contribution of benefits is not sufficient to cover its quota in the cost of the regime...". (Rulings 1925-91 of 12:00 hours on September 27, 1991, 2379-96 of 11:06 hours on May 17, 1996 and 3250-96 of 15:27 hours on July 2, 1996, 1625-2010 of 09:30 on January 27, 2010, 19485-2018 of November 21, 2018 and 236-2019 of 12:02 on January 9, 2019). Recapitulating, nothing within the constitutional framework opposes the legislator introducing reforms to the Social Security system and regulating or modifying, for the future, the normative elements that legal operators must take into account to recognize the amount of the pension in the special contributory systems charged to the National Budget, which they do in exercise of the powers that the Political Constitution itself has entrusted to them and which entail a certain margin of discretion, allowing them to validly introduce the reforms that, in accordance with economic needs and social conveniences, as well as the evolution of the times, they deem necessary for the effectiveness and guarantee of the right to the pension, whereby at no time is the elderly person left unprotected, since it is always done under the principles of reasonableness and proportionality.

Now then, regarding the alleged absence of fair studies in accordance with the provisions of ILO Convention 102 (OIT), it is important to mention that among the limits to the legislative power of configuration of the various special substitute pension regimes is the respect that must prevail for the constitutional principles of reasonableness and proportionality, as well as the necessary adjustment of the law to the prohibition of confiscatory effect, given that the best way to avoid infringements of these constitutional principles is by grounding the reform intended to be carried out in technical-actuarial studies that demonstrate the necessity, reasonableness, and proportionality of the initiative. It is worth mentioning that the required studies were requested with a view to long-term sustainability, and since the referred reports are available, there would be no unconstitutionality in that sense. On this point, the Comptroller General of the Republic pointed out in report number DFOE-SAF-0336 of July 01, 2019, that equity and similarity in the conditions of the different regimes must prevail.

On the subject, the Constitutional Chamber has indicated that " …that possibility of modification that the State has agreed in its favor finds limits not only from the Political Constitution, but also from International Law, among which those set in Convention number 102 of the International Labor Organization relative to the minimum social security norm stand out, which points out, in what is of interest here, that the benefits granted in application of the cited Convention and the administration expenses must be backed by technical studies and not be implemented or modified by a political, arbitrary, or whimsical decision of the Administration, benefits among which is the amount of contribution for the pension regime by the employee and the State as such and as employer, and which obliges grounding these variations in actuarial studies related to the solvency of the regime for affecting it." (Ruling No. 2379-96 of 11:06 hours on May 17, 1996). Evidently, the legislator has a certain margin of discretion to regulate the conditions under which the special pension regimes must operate, but that margin of discretion is not absolute, but must find support in objective data emanating from technical studies.

Regarding the possible infringement of ILO Convention 102, we must indicate that Articles 65.3 and 67.a of that instrument expressly establish that a maximum for its amount may be prescribed (meaning determined by or by virtue of national legislation, in accordance with Art. 1.1 Ibid.), according to the rule set by the competent authorities, subject to the reservation that this maximum respects the minimum established by the Convention itself, which in the case of old-age benefits is 40% of the total salary of the unskilled ordinary worker (Arts. 65, 66, 67 Ibid.); which constitutes a parameter of constitutionality (conventionality) of the pension amount. In this regard, the plaintiff points out that upon retiring, the attention to family obligations does not end. However, setting a cap on the calculation of the pension right is constitutionally valid, which is why this Ministry considers that the challenged norms do not infringe at any time the right to a dignified remuneration contained in Article 3 of the Universal Declaration of Human Rights, nor do they harm what is established in the Inter-American Convention on the Human Rights of Older Persons (approved by Costa Rica through Law No. 9394 of September 8, 2016), or the Comprehensive Law for the Elderly Person, because the reform introduced in Law No. 9796 obeys the constitutional principles of reasonableness, proportionality, equity, and financial equilibrium, and with it, it rather seeks to give future sustainability and stability to pension systems. Furthermore, in accordance with the ruling of February 28, 2003, of the case of Five Pensioners v. Peru, the Inter-American Court of Human Rights admitted that by means of a law in the strict sense and for public or social purposes (reasonable financial criteria –fiscal savings–, which, with a legitimate aim, tend to preserve the general welfare, justified in the financial stability of the State in general, and in particular, of the public sector pension system), the patrimonial effect of Social Security pensions can be limited or reduced "for the future," and especially their amount; giving to understand that the restrictions can validly comprise existing pensions (in course of payment) and not only future ones accruing as of the entry into force of said law.

vii. On the intangibility of one's own acts and legal certainty.

On the subject of legal certainty, the plaintiff states that the reform to the Judicial Branch pension regime flagrantly contravenes the principle of legal certainty, understood as the citizenry's confidence in valid and in-force legal systems, such that breaches to this system that dilute their rights cannot occur. They argue that this parameter of constitutionality in pension regimes forms part of our legal system and in this way means protection and confidence for those who maintain periods of stay in pension regimes. In the case of the reform to the Judicial Branch pension fund, this variable is aggravated because it is a mandatory fund to which workers in the sector must submit regardless of their will. Within this framework of ideas, the variations imposed by the bill shatter that confidence and security of judicial personnel in light of the overwhelming difference proposed in the reforms, introducing a contribution by way of solidarity for the sustainability of the other pension regimes.

They point out that, in the case of retired persons, the situation is extremely burdensome, since they have elaborated a life project, acquiring long or medium-term economic commitments, and suddenly, counting on that legal certainty, they abruptly see their conditions modified with severe effects on their patrimonial sphere, which in the case of retired persons is increased by anguish, frustration, and helplessness at being able to do something about it, at the time of their life when they should be calm and secure with their retirement, after a lifetime of dedication and work for the institution. Furthermore, they consider that these reductions are confiscatory, since, as they explain in the law they challenge, deduction percentages of 35% are set for those retirements exceeding 6 base salaries of the lowest position in the Judicial Branch, approximately the base is 2,530,000 colones, and on the excess 35% is charged, 45% on the excess over 3,200,000 colones, and 55% on that over 4,200,000 colones (approximate data), percentages set without any technical study, which is why they are arbitrary and confiscatory, appropriating money that by acquired rights belongs to retired persons.

Finally, the plaintiff claims that through Law 9796, the legal certainty provided by international treaties, the Constitution, the laws of the Republic, and the Rulings of the Constitutional Chamber is ignored. This is not true, since the application of the challenged norm reflects respect for the principle of legal certainty on the part of the legislator, by only acting in accordance with the legal provisions in force for the application of the cap on pensions, redesigning and redistributing the resources of the special solidarity contribution in a more equitable manner.

In the same vein, it is appropriate to highlight that with the implementation of this Contribution, the safeguarding of a series of principles has been sought, such as the Pro Fund Principle. The Pro Fund Principle has been developed by the Second Chamber of the Supreme Court of Justice, in rulings numbers 1995-0390 of the sixteenth hour on November fifteen, 1995, 2006-0213 of nine hours ten minutes on April seven, 2006, and 2010-0075 of fourteen hours on June three, 2010, which point out that: “In accordance with the jurisprudence that, as doctrine, helps to interpret, delimit, and integrate the scope of legal norms, the solution given to the dispute by the ruling under review is also not correct; given that, when pensions and retirements are discussed, the 'protective principle' in its derivation of the 'in dubio pro operario rule' is not applicable, since when it comes to the matter of social welfare, any doubt must be resolved in favor of the debtor, because the sustainment and viability of the Pension Fund must prevail in the interest of potential beneficiaries; this criterion, which is in tune with precept 17 of the Labor Code, which mandates interpreting the legal system not only in accordance with the worker's interest, but also in harmony with social convenience;(…)” “With respect to the first argument, the appellant is not correct, because the pro fund principle is not limited to a doctrinal thesis from many years ago, but is of broad application at the jurisprudential level, in the search to give the different pension funds, whether administered by the Costa Rican Social Security Fund or by some authorized entity, the greatest stability and duration, to achieve that the principle of solidarity that also governs in matters of social security is developed and executed. On the application of the pro fund principle, this Chamber has stated the following: “IV.- Neither has the Tribunal incurred an improper application of the in dubio pro operario rule, nor of the most beneficial condition. With respect to the first, in a reiterated manner, this Chamber has indicated that in matters of social security, this principle yields in favor of a pro fund interpretation, which nourishes the benefits of the universality of current and potential beneficiaries.” For the reasons set forth, it must be considered that although it is true that pension or retirement is a right granted to pensioned or retired persons, this cannot be "considered as" unrestricted or that its enjoyment cannot be limited, especially when speaking of public funds. In this sense, the Constitutional Chamber in its ruling number 20100001625 of January twenty-seventh, two thousand ten, making reference to another of its rulings, points out the following: “… within the entire universe of limitations, conditions, and restrictions that the fundamental right to retirement may suffer, there will be a group of them of which it can be predicated that they are constitutionally valid as long as they meet two conditions, namely: a) they come from the texts that recognize said rights and guarantees, and b) they are necessary for the exercise of the right itself in accordance with its nature and purpose.

…what must be kept in mind is that the study and ruling on each particular case will have to take into account that every limitation and restriction must comply with the requirements established by this venue, of being reasonable and proportionate to the nature and purpose of the pension right and also deriving from the norms that recognize and guarantee them, as has been explained.” From the foregoing, it follows that not every restriction on the fundamental right to a pension is unconstitutional in itself, but only that which is not reasonable and proportionate (…) that ceiling, in order not to be unreasonable, disproportionate, or arbitrary, must maintain some relationship with the income received by the active employee, precisely because it is based on that income that the contribution to the regime is calculated (…) IV. The right to a pension and the Social State of Law. Articles 50, 56, and 74 of the Political Constitution shape “the model of the social and democratic State of Law” (Res. 9255 of 16:03 hours on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law “entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discrimination” (Res. 13205 of 15:13 hours on September 27, 2005). Consequently, and based on the Social State of Law, “our Political Constitution contemplates a set of benefit rights related to the protection of… workers” (ibid), as is the case of the right to a pension. Precisely, as a consequence of the above, that same model fulfills the proper functions of every fundamental principle, by becoming a parameter of normative validity, a hermeneutic criterion, and a functional integrating instrument: “In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of the Law. Properly concerning constitutionality control, the Principle of the Social State of Law is useful as a parameter of normative validity, a hermeneutic criterion, and a functional integrating instrument of the legal system” (Res. 13205 of 15:13 hours on September 27, 2005). V.- Regarding the ceiling on the pension amount. The first thing that must be noted is that the existence of a ceiling on the pension amount is not in itself unconstitutional, given that in matters of social security, solidarity in sustaining the fund that backs the disbursements of those who benefit from it is vital so that all those who contribute to the pension regime can continue to benefit from that right, given that resources are not unlimited. When setting the ceiling, the legislator may choose one or several parameters with different values or weightings, which must seek the objective for which that limit on the benefit is imposed. Consequently, the parameter used may refer to elements endogenous or exogenous to the regime itself. However, it is indeed indispensable that the procedure followed for choosing these parameters responds to the constitutional principles of reasonableness and proportionality. (…) This Tribunal has previously indicated that the principle of reasonableness arises from the so-called “substantive due process,” that is, that public acts must contain a substrate of intrinsic justice. When it comes to the restriction of certain rights, this rule imposes the duty that said limitation be justified by a sufficiently weighty reason to legitimize its contradiction with the general principle of equality. The foregoing, because an act limiting rights is reasonable when it meets a triple condition: it must be necessary, suitable, and proportionate. The necessity of a measure directly refers to the existence of a factual basis that makes it necessary to protect some good or set of goods of the community—or of a determined group—through the adoption of a differentiating measure. That is, if said action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid. Suitability, for its part, entails a judgment regarding whether the type of restriction to be adopted fulfills the purpose of satisfying the detected need. The suitability of the measure would indicate that other mechanisms may exist that better solve the existing need, some of which could fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction that is imposed or intended to be imposed, such that the limitation is not of a markedly greater magnitude than the benefit intended to be obtained for the benefit of the community. Of the latter two elements, it could be said that the first is based on a qualitative judgment, while the second is based on a quantitative comparison of the two objects analyzed. In the present case, the legislator chose to establish a ceiling as a social security measure, which can be considered as valid and necessary, according to what has already been stated, to guarantee the funds of the pension system sustained by the principle of social solidarity…”. Following this line of thought, the right to a pension or retirement, while it is true safeguards a constitutional character, it is also true that it cannot be unrestricted, as has been repeatedly pointed out, since at a given moment, it may vary in the face of different circumstances that arise in society. Indeed, we find in Comparative Law doctrine that supports this legal position, which is why we consider it important to cite the ruling of the Spanish Constitutional Court, which in its judgment number 134/1987 stated the following: “…the Court declares the non-existence of a subjective right to a pension of a determined amount born from the fact of having made a determined contribution, denies that the imposition of maximum ceilings affects the concept of sufficiency. Defines the concept of adequate pension attending to the system in its entirety, without forgetting that it involves administering limited economic resources and understands that the non-admission of maximum ceilings implies the denial of the principle of solidarity. Furthermore, it implicitly considers that non-regressivity must be predicated of the system as a whole (a global reduction of the level of protection) and not partially. It also adopts a broad conception of budget laws as a ‘vehicle for the direction and orientation of economic policy, which corresponds to the Government’. (GARCÍA VALVERDE, María D., Comentario Sistemático a la Legislación Reguladora de las Pensiones, Granada, Spain, Editorial COMARES, 2004, p. 808). Likewise, with this contribution, other principles of constitutional rank are being protected, in addition to the Pro Fondo Principle, such as solidarity, social justice, and equity, since the purpose or necessity of applying this legal figure is precisely to protect the pension regimes in the face of the existing social and economic reality in the country. The foregoing, because in matters of social security, the fundamental pillar of the support of the fund that backs the disbursements of those who benefit from the regime is solidarity, in order that all persons who contribute to the regime may benefit from that fundamental right. In such a way, it is essential to establish a financial balance that guarantees the soundness of the fund, and to this end, a series of limits must be imposed to guarantee its soundness. Likewise, consider that the State, in fulfilling its obligations, must consider the needs both of those already pensioned and of those who will be in the future, also ensuring their protection. Thus, in accordance with the factual and legal grounds presented, it is evidenced that with what is established in cited Law number 9796, this Office, within its competencies, has acted in conformity, since no legal or constitutional norm is being violated. In light of the foregoing, it is important to mention that numerals 9 and 11 of the Political Constitution establish that the Public Administration must exclusively and exclusionary exercise only those competencies granted to it by law, in such a way that it is impossible for it to carry out any action not covered by law. Coupled with this, regarding the specific issue of accountability, cited article 11 of the Political Constitution indicates: “The Public Administration, in a broad sense, will be subject to a procedure of results evaluation and accountability, with the consequent personal responsibility for officials in the fulfillment of their duties. The law shall indicate the means by which this control of results and accountability operates as a system covering all public institutions.” (The underlining is not from the original) viii. Non-confiscatory nature. Finally, it is pointed out in this action that article 3 of the challenged law speaks of creating a contribution, this contribution, being a tax burden on the pension amount, has a fiscal nature and, due to its structure, has a confiscatory content on the assets of retired judicial employees and those who will retire. This Office wishes to express that the decision of the Executive Branch to establish a lower exempt amount for the payment of the special solidarity and redistributive contribution for the different pension regimes covered by Law No. 9697, particularly for the Judicial Branch Pension Regime, is not actually curtailing the rights of pensioned persons, nor has their standard of living been violated or limited; since the formulation and approval of the Law to Redesign and Redistribute the Resources of the Solidarity Contribution responds to the promotion of the common good in the Democratic State of Law, as part of the constitutional mandate enshrined in article 50 of the fundamental text, given that it seeks to address the attention of extreme poverty and contribute to the eradication of inequality in the social benefits of pensions. (See the website: https://www.elpais.cr/2020/04/30/presidente-alvarado-defiende-fijacion-de-tope-a-pensiones-de-lujo/) Furthermore, the implementation of a lower amount exempt from the payment of the special solidarity and redistributive contribution respects the stipulations of Conventions 102 and 128 of the International Labour Organization (ILO), by protecting principles such as social justice and equity; given that the purpose of employing this legal figure is precisely the search for a balance between the income received from contributions and the expenses involved in the payment of retirement benefits, as well as the sustainability of the Regime. By virtue of the foregoing, while it is true that the Political Constitution establishes the necessary imposition of an accountability system, this is applicable to the Public Administration in a broad sense, in addition to the fact that said system must be developed by law, while, in a specific sense, public officials will be subject to responsibility regarding the fulfillment of their duties. Coupled with the above, it must be considered that the Administration, in strict adherence to the principle of legality, enshrined in article 11 of both the Political Constitution and the General Law of Public Administration, is obliged to apply what is established in Law 9796, so it is not possible to grant merit to the allegations raised by the plaintiff, given that the Administration acts in strict adherence to the constitutional and legal norms that regulate the matter. Petition Under cover of the legal elements presented, it is respectfully requested: a) To declare without merit the unconstitutionality action filed by Messrs. Johnny Mejías Ávila, in his capacity as Chairman of the Administrative Council, and Eric Enrique Loría Campos, in his capacity as General Manager with powers of general attorney without limit of sum of Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), against articles 1, 2, subsection d); 3; 4, subsection b); 5, and 7; all of Law number 9796 dated December 5, 2019, called “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, through which subsection a) of article 236 bis of the Ley Orgánica del Poder Judicial is reformed. b) To exempt this Office from the payment of any amount for personal and/or procedural costs, as well as damages and losses (…)”.

15.- By brief submitted to the Chamber on June 4, 2020, Linda Casas Zamora, in her capacity as a retiree of the Judicial Branch, requests to be considered an active coadjuvant in this proceeding.

16.- By brief submitted to the Chamber on June 5, 2020, Laura María León Orozco and Denis Alberto Villalta Canales, in their capacity as retirees of the Judicial Branch, request to be considered active coadjuvants.

17.- By brief submitted to the Chamber on June 7, 2020, Jorge Luis Morales García, in his capacity as Secretary General of the Sindicato de la Judicatura, requests to be considered an active coadjuvant in the present proceeding.

18.- By briefs submitted to the Chamber on June 7 and 8, 2020, José Gustavo Zelaya and Marco Antonio Cordero Costo, in their capacity as retirees of the Judicial Branch, request to be considered active coadjuvants in the present proceeding.

19.- By brief submitted to the Chamber on June 8, 2020, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, requests to be considered an active coadjuvant in this proceeding.

20.- By brief added to the record on June 8, 2020, Damaris Molina González, in her capacity as President of the Asociación de Jubilados y Pensionados del Poder Judicial, requests to be considered an active coadjuvant in this constitutionality proceeding. This document was signed by Lic. Dennis Rubie Castro.

21.- By resolution at 16:28 hrs. on June 11, 2020, the Presidency of the Chamber ordered the following: “(…) Before ruling on the requests for coadjuvancy, the petitioner MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, is warned that she must provide the current legal status of the ASOCIACIÓN COSTARRICENSE DE JUEZAS. Furthermore, the petitioner DAMARIS MOLINA GONZÁLEZ, identity card 2-0269-0487, in her capacity as President of the ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, is warned to clarify the following: 1) whether the signing attorney DENNIS RUBIE CASTRO appears in his capacity as authenticator of the coadjuvancy proceeding or, in turn, as a coadjuvant in this action, and if so, he must indicate what is his standing to appear as a coadjuvant. 2) whether the persons included in the list of Anexo 1 are members of the Asociación de Jubilados y Pensionados del Poder Judicial. The foregoing, they must fulfill within a period of THREE DAYS, counted from the day following the notification of this resolution and under warning of denying the processing of their petitions, in case of non-compliance (articles 80 and 83 of the Ley de la Jurisdicción Constitucional). Notify (…)”.

22.- By brief added to the record on June 12, 2020, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, provides the certification of current legal status of her represented entity.

23.- By means of a memorial submitted to the Chamber on June 16, 2020, Damaris Molina González, in her capacity as President of the Asociación de Pensionados y Jubilados del Poder Judicial, and Dennis Rubie Castro, in his capacity as authenticator of Molina González and petitioner of the coadjuvancy, respond to the warning issued by resolution at 16:28 hrs. on June 11, 2020. Molina González clarifies that Mr. Rubie Castro appears as authenticator, regarding her intervention as President of the association. She also indicates, in relation to the query whether the persons on the list in Anexo 1 are members of the Asociación de Jubilados y Pensionados del Poder Judicial, that many of them are “(…) but there are other members of the Association who are not on this list, but who enjoy the representation of our association, even though they do not appear in the coadjuvancy brief (…)”. For his part, Rubie Castro confirms that his signature on the coadjuvancy brief is in a dual capacity, that is, as authenticator of Mrs. Molina González, President of the Asociación de Pensionados y Jubilados del Poder Judicial, and in his capacity, in turn, as the petitioning attorney for the coadjuvancy of each and every one of the persons indicated in the list of Anexo 1. He maintains that all those persons are retirees of the Judicial Branch and, therefore, have a legitimate interest in the proceeding.

24.- By resolution at 09:18 hrs. on June 23, 2020, the Presidency of the Chamber ordered the following: “(…) Having reviewed the briefs submitted to the Secretariat of this Chamber at 14:59 hours on May 15, 2020, by HÉCTOR LUIS RUÍZ SALAS, identity card 0502230397; at 11:20 hours on June 1, 2020, by LUIS ANTONIO CHANG PIZARRO, identity card 0601540414; at 11:23 hours on June 1, 2020, by SILENNE CASTRO VINDAS, identity card 0104770967; at 12:19 hours on June 2, 2020, by MARIA DEL PILAR VARGAS ACOSTA, identity card 0203170792; at 15:43 hours on June 2, 2020, by RODRIGO MONTENEGRO TREJOS, identity card 4-0075-0723, ANABELLE LEÓN FEOLI, identity card 1-0466-0883, ANA VIRGINIA CALZADA MIRANDA, identity card 1-0434-0791, LUIS FERNANDO SOLANO CARRERA, identity card 1-0455-0325, EVA MARÍA CAMACHO VARGAS, identity card 4-0113-0745, ROLANDO VEGA ROBERT, identity card 1-0503-0990, ADRIÁN VARGAS BENAVIDES, identity card 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, identity card 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, identity card 6-0106-0565, LUPITA CHAVES CERVANTES, identity card 1-0596-0893, MILENA CONEJO AGUILAR, identity card 1-0624-0446, FRANCISCO SEGURA MONTERO, identity card 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, identity card 1-0288-0592, RAFAEL SANABRIA ROJAS, identity card 3-0249-0099, and ALFREDO JONES LEÓN, identity card 1-0467-05; at 17:49 hours on June 7, 2020, by JORGE LUIS MORALES GARCÍA, identity card 2-399-222, in his capacity as Secretary General of the SINDICATO DE LA JUDICATURA, legal status 3-011-729381; at 15:26 hours on June 8, 2020, by MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, in her capacity as president of the ASOCIACIÓN COSTARRICENSE DE JUEZAS; at 11:50 hours on June 4, 2020, by LINDA MARIA CASAS ZAMORA, identity card 0900640769; at 11:37 hours on June 5, 2020, by LAURA MARÍA LEÓN OROZCO, identity card 106100476, and DENIS ALBERTO VILLALTA CANALES, identity card 601000361; at 09:49 hours on June 7, 2020, by JOSÉ GUSTAVO ZELAYA MUÑOZ, identity card 0203140196; and at 09:36 hours on June 8, 2020, by MARCO ANTONIO CORDERO COTO, identity card 0302250494. Before ruling on the requests for coadjuvancy formulated in this action, the aforementioned petitioners are warned that they must cancel and add the Colegio de Abogados stamp for the sum of two hundred seventy-five colones—for each of the signatories—corresponding to the authentication of the brief for the filing of the coadjuvancy. In the case of signatories who are not attorneys and whose brief lacks authentication, they must also provide the corresponding authentication. The foregoing, within the THIRD DAY counted from the day following the notification of this resolution and under warning of denying the processing of the action in case of non-compliance, in accordance with article 4 of Law No. 3245 of December 3, 1963, and 80 of the Ley de la Jurisdicción Constitucional. Notify (…)”.

25.- By resolution at 09:41 hrs. on June 23, 2020, the President of the Chamber ordered the following: “(…) Before ruling on what is appropriate in the ACCIÓN DE INCONSTITUCIONALIDAD being processed in file number 20-007715-0007-CO, request the Oficial Mayor Electoral to send to this Chamber a death certificate for OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, a document that must be remitted to this Chamber within a period of THREE DAYS counted from the receipt of this order, under warning of incurring responsibility for disobedience to authority if not done. Issue the requested official letter (…)”.

26.- By briefs submitted to the Chamber on June 23, 2020, Jorge Luis Morales García, in his capacity as Secretary General of the Sindicato de la Judicatura, and Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, indicate that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica, in accordance with the warning issued by resolution at 09:18 hrs. on June 23, 2020.

27.- By briefs submitted to the Chamber on June 24, 2020, Luis Antonio Chang Pizarro and Silenne Castro Vindas indicate that they provided the stamp of the Colegio de Abogadas y Abogados de Costa Rica since June 1 of that same year.

28.- By means of briefs submitted to the Chamber on June 24, 2020, Denis Villalta Corrales and María del Pilar Vargas Acosta indicate that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

29.- By means of briefs submitted to the Chamber on June 25, 2020, Linda Casas Zamora, José Gustavo Zelaya Muñoz, and Marco Antonio Cordero Coto indicate that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

30.- On June 25, 2020, the death certificate of Mr. Oscar Luis Fonseca Montoya is added to the record.

31.- By brief submitted to the Chamber on June 26, 2020, Milena Conejo Aguilar (in her dual capacity as coadjuvant and authenticator of the signatures of the other coadjuvants submitted on June 2, 2020, namely: Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas, and Alfredo Jones León —the latter not an attorney—), indicates that she ratifies that the statement “are authentic” and her signature corresponds to the authentication of the signatures of the coadjuvants. She clarifies that on page 23 of the submitted brief, the payment of the stamp duty corresponding to the stamp of the Colegio de Abogados de Costa Rica for the authentication of the signatures of the coadjuvants appears. She mentions that she is providing a new stamp duty payment for each of the sixteen coadjuvants.

32.- By means of briefs submitted to the Chamber on June 29, 2020, Laura María León Orozco and Dennis Villalta Canales indicate that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

33.- On June 29, 2020, Magistrate Garro Vargas files a request for recusal from hearing the present constitutionality proceeding. The foregoing, in view that her maternal aunt is a pensioner of the Judicial Branch retirement regime and is affected by the regulations under analysis.

34.- By means of a brief submitted to the Chamber on June 30, 2020, Héctor Luis Ruiz Salas indicates that he is providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

35.- By resolution at 14:08 hrs. on June 30, 2020, the Presidency of the Chamber ordered the following: “(…) Having reviewed the briefs submitted to the Secretariat of this Chamber at 14:59 hours on May 15, 2020, by HÉCTOR LUIS RUÍZ SALAS, identity card 0502230397; at 13:30 hours on May 18, 2020, by JOSÉ MARCELINO SILVA SILVA, identity card 0502160858; at 12:07 hours on May 25, 2020, by GUSTAVO ADOLFO DE LA TRINIDAD RAMÍREZ REDONDO, identity card 0106700103; at 11:20 hours on June 1, 2020, by LUIS ANTONIO CHANG PIZARRO, identity card 0601540414; at 11:23 hours on June 1, 2020, by SILENNE CASTRO VINDAS, identity card 0104770967; at 12:19 hours on June 2, 2020, by MARIA DEL PILAR VARGAS ACOSTA, identity card 0203170792; at 15:43 hours on June 2, 2020, by RODRIGO MONTENEGRO TREJOS, identity card 4-0075-0723, ANABELLE LEÓN FEOLI, identity card 1-0466-0883, ANA VIRGINIA CALZADA MIRANDA, identity card 1-0434-0791, LUIS FERNANDO SOLANO CARRERA, identity card 1-0455-0325, EVA MARÍA CAMACHO VARGAS, identity card 4-0113-0745, ROLANDO VEGA ROBERT, identity card 1-0503-0990, ADRIÁN VARGAS BENAVIDES, identity card 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, identity card 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, identity card 6-0106-0565, LUPITA CHAVES CERVANTES, identity card 1-0596-0893, MILENA CONEJO AGUILAR identity card 1-0624-0446, FRANCISCO SEGURA MONTERO, identity card 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, identity card 1-0288-0592, OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, RAFAEL SANABRIA ROJAS, identity card 3-0249-0099, and ALFREDO JONES LEÓN, identity card 1-0467-055; at 17:49 hours on June 7, 2020, by JORGE LUIS MORALES GARCÍA, identity card 2-399-222, in his capacity as Secretary General of the SINDICATO DE LA JUDICATURA, legal status 3-011-729381; at 15:26 hours on June 8, 2020, by MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, in her capacity as president of the ASOCIACIÓN COSTARRICENSE DE JUEZAS, legal status No. 3-002-130811; at 11:50 hours on June 4, 2020, by LINDA MARIA CASAS ZAMORA, identity card 0900640769; at 12:10 hours on June 4, 2020, by DAMARIS MOLINA GONZÁLEZ, identity card 2-0269-0487, in her capacity as President of the ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, legal status 3-002-071245; at 11:37 hours on June 5, 2020, by LAURA MARÍA LEÓN OROZCO, identity card 106100476, and DENIS ALBERTO VILLALTA CANALES, identity card 601000361; at 09:49 hours on June 7, 2020, by JOSÉ GUSTAVO ZELAYA MUÑOZ, identity card 0203140196; and at 09:36 hours on June 8, 2020, by MARCO ANTONIO CORDERO COTO, identity card 0302250494; who request to be considered active coadjuvants in this action. It is resolved: Article 83 of the Ley de Jurisdicción Constitucional indicates that within fifteen days following the first publication of the notice referred to in the second paragraph of article 81, the parties appearing in matters pending at the date of the filing of the action, or those with a legitimate interest, may appear within it, in order to coadjuvate in the allegations that could justify its appropriateness or inappropriateness, or to expand, where appropriate, the grounds for unconstitutionality in relation to the matter that concerns them. In the specific case, all the petitioners mentioned above appeared between May 15 and June 8, 2020, and requested to be considered active coadjuvants for believing they hold a legitimate interest in this matter. Consequently, and given that the first publication of the notice in the Boletín Judicial occurred on May 18, 2020, the appropriate course is to consider them as active coadjuvants within this matter. This, with the exception of OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, given that, according to the certification from the Civil Registry added to the record, he passed away on June 12, 2020, therefore in his case the procedural action is considered terminated. It must be clarified that regarding the coadjuvancy proceeding of Damaris Molina González, it is admitted in her capacity as president and judicial representative of the Asociación de Pensionados y Jubilados del Poder Judicial and, therefore, in representation of the members of said association, but not the coadjuvancy of Dennis Rubie Castro, authenticating attorney and who stated he appeared before this Chamber in the capacity of “petitioning attorney for the coadjuvancy of each and every one of the persons who are indicated with their respective names and identities in the list of Anexo I” (brief received at 14:09 hours on June 16, 2020), given that he did not provide a judicial power of attorney that legitimizes him to coadjuvate on behalf of the listed persons.

Interested parties are warned that—regarding the effects of joinder (coadyuvancia)—since the joined party (coadyuvante) is not a principal party to the proceeding, they will not be directly harmed or benefited by the judgment; that is, the judgment’s efficacy does not reach the joined party directly and immediately, nor does res judicata (cosa juzgada) affect them, nor do the immediate effects of the judgment’s execution reach them, because through joinder, the jurisdictional authority cannot be compelled to issue a ruling in their favor, as they were not a principal party in the proceeding. What can affect them, but not by virtue of their status as a joined party but rather as anyone else, is the erga omnes effect of the ruling. A judgment in constitutional matters does not particularly benefit anyone, not even the plaintiff; it is in the prior trial where this can be recognized. The hearings granted to the Procurador General de la República, the Minister of Finance (ministro de Hacienda), the Minister of Planning and Economic Policy (ministra de Planificación y Política Económica), and the President of the Supreme Court of Justice (Presidente de la Corte Suprema de Justicia) are deemed answered, in the resolution issued at 11:37 a.m. on May 12, 2020. Regarding the request for the precautionary measure of suspension: the requesting joined parties must abide by what this Chamber resolved in the resolution issued at 11:37 a.m. on May 12, 2020, concerning the effects of this action: “(…) in cases of direct action (as occurs in the present action), the suspensive effect of the filing does not operate (see rulings (votos) No. 537-91, 2019-11633, as well as resolutions issued in case files (expedientes) numbers 2019-11022, 19-006416, and 19-015543 of the Constitutional Court (Tribunal Constitucional)).” The case being ready (Listos los autos), this acción de inconstitucionalidad is assigned to Magistrate Jorge Araya García, who by turn is responsible for its substantive study (…)”.

36.- By resolution issued at 2:47 p.m. on September 23, 2020, the President of the Chamber ordered the acceptance of the recusal (inhibitoria) request filed by Magistrate Garro Vargas.

37.- On September 25, 2020, Alternate Magistrate (Magistrado Suplente) Ronald Salazar Murillo filed a recusal request concerning the adjudication of this constitutional proceeding. The foregoing, because he is a retiree of the Judicial Branch (Poder Judicial).

38.- By resolution issued at 8:49 a.m. on September 30, 2020, the President of the Chamber ordered the acceptance of the recusal request filed by Magistrate Salazar Murillo.

39.- On October 1, 2020, drawing (sorteo) No. 8371 was conducted in the Office of the Presidency of the Court, and Alternate Magistrate Hubert Fernández Arguello was selected to replace Magistrate Garro Vargas for the adjudication of this matter.

40.- By brief submitted to the Chamber on October 18, 2020, José H. González Fernández, a pensioner of the National Teachers’ Union (Magisterio Nacional), requests to be recognized as an active joined party (coadyuvante activo) in this proceeding. He requests that Articles 70 and 71 of the Ley de Pensiones y Jubilaciones del Magisterio Nacional and Law No. 9796 be declared unconstitutional.

41.- On October 20, 2020, Magistrate Fernando Cruz Castro filed a recusal request concerning the adjudication of this constitutional proceeding. The foregoing, because he had submitted a report on this matter in his capacity as President of the Supreme Court of Justice.

42.- By resolution issued at 12:33 p.m. on October 22, 2020, the President of the Chamber ordered the acceptance of the recusal request filed by Magistrate Cruz Castro and deemed him removed from the adjudication of this matter.

43.- By brief added to the court record on October 26, 2020, drawing No. 8454 conducted in the Office of the Presidency of the Court is recorded, through which Alternate Magistrate Marta Esquivel Rodríguez was selected to replace Magistrate Cruz Castro for the adjudication of this matter.

44.- By brief submitted to the Chamber on October 30, 2020, Danilo Eduardo Ugalde Vargas, who claims to appear as special judicial attorney-in-fact (apoderado especial judicial) for Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, and others (who requested in June 2020 to be recognized as active joined parties in this proceeding), attaches a series of evidence for a better resolution (pruebas para mejor resolver).

45.- By brief added to the court record on February 22, 2021, an unsigned copy of the filing brief for the acción de inconstitucionalidad filed on February 18 of that same year by Víctor Rodríguez Rescia on behalf of several interested parties and against the provisions of Law No. 9796 and Law No. 9635 is attached, which, in turn, is being processed under case file No. 21-003071-000-CO.

46.- By brief submitted to the Chamber on June 7, 2021, Jorge Luis Morales García, in his capacity as Secretary General of the Sindicato de la Judicatura, requests that the oral hearing (comparecencia oral) be scheduled as soon as possible, pursuant to the provisions of Article 10 of the Ley de la Jurisdicción Constitucional. He considers that said hearing is mandatory and not optional.

47.- By brief submitted to the Chamber on October 1, 2021, Eloy José Araya Paz filed a request for expedited processing (gestión de pronto despacho).

48.- By memorial submitted to the Chamber on March 7, 2022, Antonio Ortega Vindas (who filed an amparo appeal (recurso de amparo) related to the regulations challenged in this proceeding) presents a request for expedited processing.

49.- By briefs submitted to the Chamber on June 17 and 23, 2022, Erick Castro Zamora and Jessica Espinoza Cerdas (who filed amparo appeal No. 20-010662-0007-CO related to the regulations challenged herein) formulate a request for expedited processing.

50.- By memorial submitted to the Chamber on November 3, 2022, José H. González Fernández, a pensioner of the National Teachers’ Union, issues other observations regarding this proceeding.

51.- By brief dated February 20, 2023 (added to the court record on February 22, 2023), Jorge Steve Rodríguez Fernández, in his capacity as Secretary General of the Sindicato de la Judicatura, requests that the oral hearing referred to in Article 10 of the Ley de la Jurisdicción Constitucional be scheduled. He considers that said hearing is mandatory and not optional.

52.- By brief added to the court record on July 12, 2023, drawing No. 11431 conducted in the Office of the Presidency of the Court is recorded, through which Alternate Magistrate Ana Cristina Fernández Acuña was selected to replace the previously appointed Magistrate Esquivel Rodríguez (since the latter, by then, was no longer serving as a magistrate because her constitutional term had concluded).

53.- By brief added to the court record on July 12, 2023, drawing No. 11436 conducted in the Office of the Presidency of the Court is recorded, through which Alternate Magistrate Jorge Isaac Solano Aguilar was selected to replace Magistrate Fernández Acuña (since the latter, by then, remained appointed to the Chamber). Regarding this designation, what is indicated in resultando No. 62 of this judgment must also be observed.

54.- By interlocutory resolution (resolución interlocutoria) No. 2023-17098 issued at 1:00 p.m. on July 12, 2023, the Chamber rejected the request raised by the Secretaries General of the Sindicato de la Judicatura on June 7, 2021, and February 20, 2023, for an oral hearing or final-hearing (audiencia de conclusiones) to be scheduled regarding the matters raised in this acción de inconstitucionalidad. Likewise, it was placed on record that Magistrates Salazar Alvarado, Araya García, Fernández Arguello, and Fernández Acuña are members of COOPEJUDICIAL, and it was clarified that this situation in no way affects the adjudication of the action.

55.- By brief dated August 7, 2023 (added to the court record on August 8, 2023), Jorge Steve Fernández Rodríguez, in his capacity as Secretary General of the Sindicato de la Judicatura, argues that they should be considered as plaintiffs (accionantes), requests that the Chamber schedule an oral hearing or final hearing, and raises a request for expedited processing.

56.- By interlocutory resolution No. 2023-23500 issued at 9:15 a.m. on September 20, 2023, this Court ruled on the request dated August 7, 2023, filed by Jorge Steve Fernández Rodríguez, in his capacity as Secretary General of the Sindicato de la Judicatura, and resolved the following: “(…) I.- Preliminarily. In Considerando I of resolution No. 2023017098 issued at 1:00 p.m. on July 12, 2023, magistrates Salazar Alvarado, Araya García, Fernández Argüello, and Garita Navarro, and magistrate Fernández Acuña state for the record that they are members of COOPEJUDICIAL; in this regard, the Chamber records that such condition in no way affects the adjudication of this action. Related to the foregoing, magistrate Rueda Leal states for the record that his wife is a member of this cooperative; in this regard, it is likewise deemed that such condition in no way affects the adjudication of this action. II.- Regarding the joinder request, the procedural actions, and the petitioner’s request to be held as a plaintiff. (…) Thus, it is improper to argue that, because an ‘Expansion of Grounds’ was raised in the joinder, they must be considered an active party, actor, or plaintiff, since, as was resolved in due course, the Union’s intervention was as an active joined party in this action, and, as repeatedly noted, such status as a joined party is insufficient for raising other types of requests, such as precisely requiring that the Union be considered a plaintiff or actor in this proceeding. III.- Regarding the request to hold a hearing or oral hearing. Determining that, in accordance with the provisions of Article 83 of the Ley de la Jurisdicción Constitucional, the actions that a joined party can perform within a proceeding are limited to presenting arguments for or against what the plaintiff has raised—even if they are expansions of arguments—it is concluded that they likewise lack the possibility of making a formal or express request for the holding of an oral hearing, hearing, or final hearing. In any case, it should be noted that the holding of an oral hearing or final hearing, by its very nature, is a procedural aspect that corresponds to the Full Chamber (Pleno de la Sala) to determine at the procedural moment when it deems it necessary, appropriate, or timely by the Court, in view of the processing and discussion of the constitutional question raised, and in accordance with the provisions of Article 9 of the Ley de la Jurisdicción Constitucional and its application in proceedings of this nature—see, among many others, judgments numbers 4528-99 and 2021-11957. IV.- Regarding the request for expedited processing. Finally, with respect to the request for expedited processing, it is important to note that the processing provided thus far to this action is due to objective reasons, such as the complexity of the proceeding—a characteristic inherent to an acción de inconstitucionalidad—and also given the number of requests filed, as well as the significance of the potential ruling by the Chamber, which necessitates a thorough analysis by this jurisdictional body of the elements raised in the court record. To the foregoing, it must be added that the caseload of the constitutional jurisdiction for this year already exceeds 21,000 new case files, which suggests that by year’s end the highest figure in the Court’s history will be reached. This situation generates a greater workload that directly impacts the Chamber’s resolution timelines, as the petitioner believes has occurred in this specific case. V.- Ultimately, in accordance with the foregoing considerandos, the appropriate course is to declare that the requests filed are without merit. Por tanto: The requests filed are without merit (…)”.

57.- By brief submitted to the Chamber on February 26, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended by this acción de inconstitucionalidad) formulates a request for expedited processing.

58.- By brief submitted to the Chamber on April 9, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended by this acción de inconstitucionalidad) reiterates his request for expedited processing.

59.- By memorial submitted to the Chamber on April 11, 2024, Silvia Elena Arce Meneses, in her capacity as Secretary General of the Sindicato de la Judicatura, presents a request for expedited processing.

60.- By brief submitted to the Chamber on April 11, 2024, José H. González Fernández, a pensioner of the National Teachers’ Union, issues other observations regarding this proceeding.

61.- By brief submitted to the Chamber on April 23, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended by this acción de inconstitucionalidad) reiterates his request for expedited processing.

62.- By resolution of the Presidency of the Chamber, issued at seven fifty a.m. on May 7, 2024, it is confirmed that magistrate Fernández Acuña is the designee to replace magistrate Cruz Castro in this action, by virtue of the recusal raised by the latter, as indicated in resultandos 41, 42, 43, and 52 of this judgment. In this resolution, the following was expressly indicated and explained regarding this designation: “(…) IV.- As recorded in the judicial case file, magistrate Fernández Acuña was selected to replace magistrate Cruz Castro (supra resultando 4). The fact that, to resolve an interlocutory matter (supra resultando 7), magistrate Solano Aguilar was designated (supra considerando 6) to replace magistrate Cruz Castro because magistrate Fernández Acuña was a member of the Tribunal—replacing magistrate Rueda Leal—(supra resultando 5), does not have the legal consequence of displacing magistrate Fernández Acuña, since the designation of magistrate Solano Aguilar was for an ad-hoc case. Subsequently, and as legally corresponds, magistrate Fernández Acuña was competent to resolve another interlocutory matter in this case file (supra resultando 8). Ergo, as no cause exists to displace magistrate Ana Cristina Fernández Acuña, it is appropriate that she adjudicate and resolve whatever is legally appropriate in this action (…)”.

63.- By memorial added to the case file on May 20, 2024, Magistrate Hess Herrera files a formal recusal to adjudicate this action.

64.- By resolution of the Presidency of this Chamber, issued at ten forty-six a.m. on May 20, 2024, the recusal filed by Magistrate Hess Herrera is accepted.

65.- By memorial added to the case file on May 21, 2024, drawing number 12342 conducted by the Presidency of the Supreme Court of Justice is substantiated, through which Alternate Magistrate Lara Gamboa is appointed to replace Magistrate Hess Herrera.

66.- By briefs added to the case file on May 31 and June 10, both of 2024, Mr. Humberto González Fernández requests the resolution of this action.

67.- By brief added to the case file on June 21, 2024, Mr. Humberto González Fernández refers to the content of various aspects related to the adjudication of this action.

68.- By briefs submitted to the Chamber on August 22, 23, and 30, as well as on September 1, 4, and 9, all of 2024, José Humberto González Fernández issues an additional series of observations related to this proceeding.

69.- By memorial added to the case file on September 10, 2024, alternate magistrate Lara Gamboa files a recusal to adjudicate this action.

70.- By resolution of the Presidency of this Chamber, issued at seven thirty-three a.m. on September 11, 2024, the recusal filed by alternate magistrate Lara Gamboa is accepted.

71.- By memorial added to the case file on September 16, 2024, drawing number 12,771 conducted by the Presidency of the Supreme Court of Justice is substantiated, through which alternate magistrate Pacheco Salazar is appointed to replace alternate magistrate Lara Gamboa.

72.- In the substantiation of the proceeding, the prescriptions of law have been observed.

Drafted by Magistrate Araya García; and,

Considerando:

I.- Preliminarily. Magistrates Rueda Leal, Salazar Alvarado, Araya García, and Fernández Argüello, as well as Magistrate Fernández Acuña, state for the record that they are members of COOPEJUDICIAL R.L. In this regard, the Chamber records—as indicated in interlocutory resolutions No. 2023-17098, issued at 1:00 p.m. on July 12, 2023, and No. 2023-23500, issued at 9:15 a.m. on September 20, 2023—that said condition in no way affects the adjudication of this action.

II.- Regarding the formal prerequisites for the admissibility of the acción de inconstitucionalidad. The acción de inconstitucionalidad is a proceeding with specific technical requirements that must be fulfilled so that the Chamber can validly adjudicate the merits of the challenge. Article 75 of the Ley de la Jurisdicción Constitucional stipulates the prerequisites for the admissibility of the acción de inconstitucionalidad; among these is required the existence of a base or prior matter pending resolution, whether in judicial proceedings or in the procedure for exhausting the administrative route, in which unconstitutionality has been invoked as a reasonable means to protect the right or interest considered infringed. Meanwhile, the second and third paragraphs of the same provision exceptionally regulate the prerequisites under which the prior matter is not required, that is, when by the nature of the matter there is no individual and direct injury, or it involves the protection of diffuse or collective interests, or when it is directly filed by the Contralor General de la República, the Procurador General de la República, the Fiscal General de la República, and the Defensor de los Habitantes. Regarding the requirement of a matter pending resolution, the Chamber, through judgment number 1995-4190, indicated that the action is “a proceeding of an incidental nature, and not a direct or popular action, meaning that the existence of a matter pending resolution—whether before the courts of justice or in the procedure for exhausting the administrative route—is required to access the constitutional route, but in such a way that the action constitutes a reasonable means to protect the right considered harmed in the principal matter, so that what the Constitutional Court resolves has a positive or negative impact on said proceeding pending resolution, since it rules on the constitutionality of the norms that must be applied in that matter; and only by exception does the legislation permit direct access to this route—as per the prerequisites of the second and third paragraphs of Article 75 of the Ley de la Jurisdicción Constitucional.” For this reason, the requirement of a prior matter pending resolution does not constitute a mere formal requirement, since the mere existence of a base matter, nor the invocation of unconstitutionality, is not sufficient; rather, it is essential that the action constitutes a reasonable means to protect the right or interest considered violated, which means that the challenged norms must be applicable in the base matter—see, in a similar vein, Judgments Nos. 1990-1668, 1993-408, 1994-798, 1994-3615, 1995-409, 1995-851, 1995-4190, and 1996-791. On the other hand, it is appropriate to indicate that there are other technical requirements that must be met, such as, for example, the explicit determination of the challenged norms with duly stated grounds, with a specific reference to the constitutional mandates and principles considered infringed, the authentication through legal counsel (patrocinio letrado) of the filing brief of the action, the substantiation of the conditions of standing (legitimación)—powers of attorney and certifications—as well as the literal certification of the challenge brief, which, if not provided by the plaintiffs, may be ordered by the Presidency of the Chamber for compliance.

III.- STANDING (LEGITIMACIÓN) AND ADMISSIBILITY OF THIS ACCIÓN DE INCONSTITUCIONALIDAD. In accordance with the foregoing considerando, one of the exceptions for filing an acción de inconstitucionalidad without the existence of a prior matter where the intended unconstitutionality has been alleged and which serves as the basis for filing the action is precisely the defense of collective interests, understood as those that concern a specific community and, therefore, also identified as corporate or union interests.

Regarding the collective interests whose defense grants standing to file an acción de inconstitucionalidad, in Judgment No. 2006-13323 issued at 5:26 p.m. on September 6, 2006, this Court stated:

“This Court considers that the action is admissible under the terms provided in the first (sic) paragraph of Article 75 of the Ley de la Jurisdicción Constitucional, given that the plaintiffs allege the defense of corporate interests, relating to the interests of the members of the associations they represent, these being the Asociación Cámara Nacional de Transportes, the Asociación Cámara Nacional de Transportistas de Servicios Especiales, and the Asociación Nacional de Transportistas de Turismo. Indeed, as this Court has previously recognized (in judgments numbers 6433-98, 7615-98, 0467-99, 1313-99, 1830-99, 2289-99, 2745-99, 6644-99, 7975-99, 0877-2000, 2856-2000, 5565-2000, 6973-2000, 7160-2000, and 2001-9677), corporate interests are those characterized ‘[...] by the representation and defense of a core of interests belonging to the members of a specific community or common activity, and, insofar as it represents and defends them, the Chamber acts on behalf of its associates, the community of merchants. Thus, we are facing an interest of that Chamber and, at the same time, of each one of its members, in a non-individualized but individualizable manner, which constitutes a corporate interest or one that concerns that legally organized community, which is why this action is admissible under the terms of the second paragraph of Article 75 of the Ley de la Jurisdicción Constitucional.-’ (Judgment number 1631-91, of three fifteen p.m. on August twenty-first, nineteen ninety-one).

Thus, in these cases, the existence of a pending matter (in the administrative or jurisdictional route) as required by the first paragraph of the aforementioned Article 75 to substantiate the plaintiff’s standing is not necessary, since by the very essence of the matter, it concerns the defense of corporate interests. The Chamber considers that it is not legitimate to disregard this type of interest, given that doing so would imply disregarding an important function of corporate entities, which have been created according to the guidelines of the law, and in the case of Chambers, professional associations (colegios profesionales), associations, or unions, it would imply denaturing their mediating function regarding the defense of the interests of their members, a function that has been recognized as essential to these entities by the very jurisprudence of this Court (…)”.

Meanwhile, in Judgment No. 2020-20839 issued at 9:20 a.m. on October 28, 2020, the Chamber stated:

“Regarding collective interests, which are briefly mentioned in the brief, it is appropriate to note that the Chamber has specified that through the expression ‘interests that concern the community as a whole,’ the legislator intended to refer to the standing held by a corporate entity when it acts through its representatives in defense of the rights and interests of the persons who make up its associative base, and provided that it involves the questioning of norms or provisions that impact that core of rights or interests that constitutes the reason for being and the unifying factor of the group. Starting from judgment 2006-9170 of four thirty-six p.m. on June twenty-eighth, two thousand six, this Tribunal returned to an earlier criterion, according to which corporate entities are authorized to directly request the declaration of unconstitutionality of a norm, when it directly affects the sphere of action of the entity and its members, without it being relevant whether the norm is likely to directly affect the rights of the association members (…)”.

Thus, when alleging the defense of collective interests, it must directly involve situations that affect the sphere of rights of those who make up the grouping, collective, union, or corporation, precisely because they are integral parts of it, or the rights that such collective or grouping may have itself as a corporate-based entity. That is, it is not about the possibility of alleging, through this route, the unconstitutionality of any norm or general act, but only those that impact said sphere of rights.

In the case under study, this action is filed by the President of the Board of Directors (Consejo de Administración) and by the General Manager (Gerente General), both of the Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), which is a corporate organization, alleging the defense of the rights of its members (active and retired) in that grouping, by virtue of the fact that, in their view, the regulations in question (Articles 1; 2, subsection d; 3; 4, subsection b; 5; and 7, all of Law No. 9796 of December 5, 2019, called “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria,” and the provisions of Article 236 bis, subsection a, of the Ley Orgánica del Poder Judicial No. 8) concern and directly affect them. In view of the foregoing, this Chamber considers that the plaintiffs possess sufficient standing to file this action (see, what the Chamber held in ruling (voto) No. 2021-11957, issued at 5:00 p.m. on May 25, 2021, at which time, while adjudicating a similar matter, an acción de inconstitucionalidad also filed by COOPEJUDICIAL R.L. was admitted).

IV.- Regarding the joinders (coadyuvancias). Article 83 of the Ley de la Jurisdicción Constitucional establishes that within the fifteen days following the first publication of the notice referred to in the second paragraph of Article 81, the parties who appear with matters pending as of the date of filing the action, or those who have a legitimate interest in the definition of the object in dispute, may appear to join (coadyuvar) either of the two positions under discussion; in the case of acciones de inconstitucionalidad, the joined party basically appears to defend the plaintiff’s annulment claim or to support the validity of the challenged act. In this case, by resolution of the Presidency of this Chamber, issued at 2:08 p.m. on June 30, 2020, matters relating to the active joinder requests filed within the period indicated in the aforementioned Article 83 of the Ley de la Jurisdicción Constitucional were resolved. On that occasion, the following were held to be active joined parties: Héctor Luis Ruiz Salaz, José Marcelino Silva Silva, Gustavo Adolfo de la Trinidad Ramírez Redondo, Luis Antonio Chang Pizarro, Silenne Castro Vindas, María del Pilar Vargas Acosta, Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magda Lorena Pereira Villalobos, Alejandro López Mc Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Álvaro Fernández Silva, Rafael Sanabria Rojas, Alfredo Jones León, Jorge Luis Morales García, in his capacity as Secretary General of the Sindicato de la Judicatura, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, Linda María Casas Zamora, Damaris Molina González, in her capacity as President of the Asociación de Jubilados y Pensionados del Poder Judicial, Laura María León Orozco, Denis Alberto Villalta Canales, José Gustavo Zelaya Muñoz, and Marco Antonio Cordero Coto, because all demonstrated a legitimate interest and appeared within the corresponding period.

Likewise, in this resolution, it was clarified that the joinder request raised by Mr. Oscar Luis Fonseca Montoya was not admissible, given that he passed away on June 12, 2020. Regarding the request raised by Damaris Molina González, it was indicated that it was admissible in her capacity as President and judicial representative of the Asociación de Pensionados y Jubilados del Poder Judicial and, therefore, on behalf of the members of said association.

Also, that resolution indicated that the proceeding filed by Dennis Rubie Castro was not proper, “(…) authenticating attorney who stated he appeared before this Chamber as ‘managing attorney for the joinder of each and every person listed with their respective names and identities in the Annex I list’ (filing received at 14:09 on June 16, 2020), given that he did not provide a power of attorney authorizing him to join on behalf of the listed persons (…)”.

It should be noted that, on October 18, 2020, Mr. José H. González Fernández, retired from the National Teachers’ Union (Magisterio Nacional), requested to be considered an active joining party in this proceeding. However, since that filing was submitted untimely, after the deadline clearly established in Article 83 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), it becomes improper and must be rejected.

V.- PURPOSE OF THE ACTION. The petitioners allege the unconstitutionality of the provisions in Articles 1; 2, subsection d); 3; 4, subsection b); 5; and 7; all of Law No. 9796 of December 5, 2019, titled “Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution” (Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria), and the provision in Article 236 bis, subsection a), of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial). These provisions expressly state the following:

From Law No. 9796:

“ARTICLE 1- Purpose of the law. The purpose of this law is to contribute to the country’s public finances by applying a redesign of the maximum pension caps and the pension exempt from the special solidarity contribution (contribución especial solidaria) established on the special pension regimes contained in Article 3 of Law No. 9383, Framework Law for the Special Contribution on Pension Regimes (Ley Marco de Contribución Especial de los Regímenes de Pensiones), of July 29, 2016; Article 236 bis of Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937; and Article 71 of Law No. 2248, Law of Pensions and Retirements of the National Teachers’ Union (Ley de Pensiones y Jubilaciones del Magisterio Nacional), of September 5, 1958, which govern the regimes of the Judicial Branch and the National Teachers’ Union, respectively.” “ARTICLE 2- Scope of application. This law shall apply to the pension regimes established in the following laws: (…)

• d)Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937. This law shall not apply to persons covered by the Disability, Old Age, and Death regime administered by the Costa Rican Social Security Fund (CCSS).” “ARTICLE 3- Purposes. This law shall have the following purposes:
• a)To provide continuity and applicability to the solidarity contribution (contribución solidaria) as a contribution to achieve the sustainability of pensions.
• b)To contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in tax burdens.
• c)To provide sustainability to the pension systems through the new contributions.” “ARTICLE 4- Universal maximum pension exempt from the special solidarity contribution. All those retirements, single pensions, or multiple pensions (multipensiones) derived from the contributory and non-contributory regimes included in Article 2 of this law, except for complementary ones regulated in Law No. 7983, Law on Worker Protection (Ley de Protección al Trabajador), of February 16, 2000, and any other complementary one existing in the Public Administration, granted to the same person for different legal causes, that exceed the amounts indicated below, according to the public salary regime to which they belong, shall be subject to the special solidarity contribution created through the laws indicated in Articles 1 and 2 of this law.

The amounts exempt from the special solidarity contribution are the following: (…)

• b)Up to six (6) base salaries of the lowest-paid position in the Judicial Branch for the case of the pensions and retirements contemplated in Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937.” “ARTICLE 5- Principle of progressive contribution. The deduction of the mandatory solidarity contribution shall be applied in compliance with the progressive contribution scale (escalerilla de contribución progresiva) established in each of the laws indicated in Article 2 of this law.

For the case of deductions to be applied to multiple pensions, only those paid within the same pension regime may be considered for the purposes of the special solidarity contribution, and the sum of pension amounts between different regimes cannot be applied. In no case may the sum of the solidarity contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions rightfully corresponding to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” “ARTICLE 7- Reform of subsection a) of Article 236 bis of Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937 Subsection a) of Article 236 bis of Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937, is reformed. The text is as follows:

Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.” For its part, Article 236 bis, subsection a), of the Organic Law of the Judicial Branch, states:

“Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees.

In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.” Essentially, the petitioners believe that the content of these provisions caused the contribution percentages to increase, such that they are obliged to pay up to 55%, thereby arbitrarily depriving Judicial Branch retirees of sufficient economic resources to meet their needs, mainly due to the condition of older adults that most of them hold.

For the foregoing reason, they allege that such provisions violate the rights to retirement and social security, the principle of non-confiscation (no confiscatoriedad), the principle of no double taxation in tax matters (no doble imposición en materia tributaria), the principle of non-retroactivity to the detriment (no retroactividad en perjuicio), the principle of legal certainty (seguridad jurídica), the principle of equality, the principles of reasonableness and proportionality, and the principle of solidarity. Likewise, they argue that no technical studies were conducted for the establishment of the regime's contribution percentages.

VI.- METHODOLOGY FOR THE ANALYSIS OF THIS UNCONSTITUTIONALITY ACTION. In order to facilitate the study of this action, the first step will be to conduct a general analysis of the reasons that gave rise to Law No. 9796, as well as of the right to retirement and the figure of the special solidarity contribution, to then focus the study on the contributions of up to 55% that judicial retirees are currently obliged to pay and what this Chamber has stated regarding that maximum cap. All of this serves as a means to subsequently examine, in detail, the grievances that the petitioners presented on this particular point.

VII.- REGARDING THE REASONS THAT GAVE RISE TO LAW NO. 9796 AND THE TEXT OF INTEREST FINALLY APPROVED. To begin the study of this constitutionality proceeding, it is appropriate first to know, in broad terms, the origins or reasons that led to the creation of the law challenged by the petitioners.

Thus, it should be noted that on April 24, 2018, Law No. 9544 was issued, called Reform to the Organic Law of the Judicial Branch (Reforma a la Ley Orgánica del Poder Judicial) (published in La Gaceta No. 89 of May 22, 2018). Through this latter legal body, the provisions of Title IX of the aforementioned Organic Law of the Judicial Branch were reformed, specifically, what is stated in Articles 224 to 233 (Chapter I referring to benefits), Article 234 (Chapter II regarding the transfer of contributions), Articles 235 to 238 (Chapter III titled The Fund), and Articles 239 to 242 (Chapter IV regarding the administration); likewise, several provisions were derogated and some transitory articles were inserted. The background and reasons that gave rise to this particular law were extensively explained by this Constitutional Chamber in Recital VII of Judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021, through which its constitutionality was precisely analyzed, as will be discussed and explained later.

Now, of particular interest and for the purposes of this constitutionality proceeding, it is worth noting what was stated at that time in Articles 236 and 236 bis of the cited Law No. 9544 (corresponding to Chapter III titled The Fund). The first of these articles provided that the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) would have a series of revenues, namely: 1) A worker contribution of thirteen percent (13%) of the salaries earned by judicial employees, as well as of the retirements and pensions payable from the Fund, a percentage that shall be withheld from the corresponding periodic payment. 2) An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the salaries and wages of its employees. 3) A State contribution that shall be a percentage of the salaries and wages equal to that established for the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund (CCSS); and 4) The yields and other benefits produced or that the Fund may come to generate or obtain. Furthermore, it was clarified that in no case could the sum of the mandatory contribution and the special, solidarity, and redistributive contribution, and in general, all deductions applied by law to all pensioners and retirees of the Fund, represent more than 55% of the total gross amount of the pension rightfully corresponding to the beneficiary. It was also stated that, for cases in which that sum exceeded that 55% of the total gross amount of the pension, the special contribution would be readjusted so that the sum equals 55% of the total gross amount of the pension. Finally, it was clarified in that article that the resources obtained from that established mandatory contribution would be deposited into that Judicial Branch Retirement Fund.

For its part, Article 236 bis established the matters concerning the special, solidarity, and redistributive contribution to which the pensioners of this institution would be obliged. It was then provided that, in addition to the common contributions established in the preceding article, pensioners whose benefits exceed the following amounts shall contribute in a special, solidarity, and redistributive manner: a) On the excess over the cap established in Article 225 (which, in turn, provided that no retirement could be greater than 10 times the base salary of the lowest-paid position, nor less than one-third of the base salary of the lowest-paid position paid in the Judicial Branch) and up to 25% of said cap, they shall contribute 35% of such excess. b) On the excess over the previous margin and up to an additional 25%, they shall contribute 40% of such excess. c) On the excess over the previous margin and up to an additional 25%, they shall contribute 45% of such excess. d) On the excess over the previous margin and up to an additional 25%, they shall contribute 50% of such excess; and e) On the excess over the previous margin, they shall contribute 55%. Likewise, it was clarified in this article that in no case could the sum of that special contribution and the totality of the deductions applied by law to all Judicial Branch pensioners represent more than 55% of the total gross amount of the pension. It was also stated that, for cases in which that sum exceeded that 55% of the total gross amount of the pension, the special contribution would be readjusted so that the sum equals 55% of the total gross amount of the pension. It was added that the resources obtained from the special contribution would be deposited into the Judicial Branch Retirement and Pension Fund.

A short time later, in October of that same year 2018, eleven Deputies of the Legislative Assembly introduced a new bill of law intrinsically related to the previous law, then called "Law to set equitable caps on luxury pensions, redesign and redistribute the resources of the special solidarity contribution, and create the figure of exceptional mandatory retirement" (Ley para fijar topes equitativos a las pensiones de lujo, rediseñar y redistribuir los recursos de la contribución especial solidaria y crear la figura de la jubilación obligatoria excepcional), which, in turn, was processed under legislative file No. 21,035.

A reading of the statement of motives for that bill of law allows one to infer that its main objective (at least as relevant for the purposes of studying this proceeding) was to make a new “cut” to the pensions received by retirees from different regimes, including the Judicial Branch, through a redesign specifically regarding the special solidarity contribution. The foregoing, in turn, intended to “give a little more uniformity” to the regimes in terms of benefits and burdens, reducing the exempt bases of the pension amounts “so that the progressive tables of the solidarity contribution can be applied to them,” thereby avoiding what was considered an “enormous inequality in the benefits of a pension or retirement.” In its original version, the bill sought that, above the 8 lowest salaries (outside the Judicial Branch, the Executive Branch, the Supreme Electoral Tribunal, etc.), those deduction percentages for the solidarity contribution would be applied.

According to that statement of motives, with the then-current legislation, this was the landscape regarding the bases exempt from the payment of the mandatory solidarity contribution:

Lowest salary paid in the Judicial Branch Lowest salary paid in the Public Administration Salary of a UCR full professor + 30 years of service annuities + full-time dedication Approximate amount: ₡ 463,000 Approximate amount : ₡ 274,800 ----------- X 10 X 10 ----------- Total exempt base:

₡ 4,630,000 Total exempt base:

₡ 2,740,800 Total exempt base:

₡ 3,917,961.65 And, with the bill of law, the aim was to try to standardize the situation of the various regimes as follows:

Judicial Branch Law 7333 MTSS Laws 7302 and 9383 National Teachers’ Union Law 2248 Approximate amount: ₡ 463,000 X8 Approximate amount : ₡ 274,800 X 8 Approximate amount : ₡ 274,800 X 8 Total exempt base: ₡ 3,704,000 Total exempt base: ₡ 2,198,400 Total exempt base: ₡ 2,198,400 Likewise, the bill maintained that the previous measures sought for the Executive Branch to have "new and constant" resources, broadening the taxpayer base by lowering the exempt cap of the pension and collecting revenues over a 10-year period to advance the payment of internal and external debt and thereby overcome the fiscal and unemployment crisis that, it was stated, threatened the country's economic stability and development. In line with the foregoing, it was clarified that these measures originally had a temporary nature in the treatment of the destination of the resources, "so that at the end of the term established in this legislative initiative, they would be returning to the destination established in the affected provisions, that is, for the sustainability of the pension funds and single fund (caja única), as applicable." The cited bill was published in Supplement No. 14 to La Gaceta No. 214 of December 18, 2018, and subsequently continued the corresponding legislative process. Finally, on December 5, 2019, the currently challenged Law No. 9796 was issued, under the name "Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution," which, in turn, was published in Supplement No. 286 to La Gaceta No. 243 of December 20, 2019, with the express indication that it would enter into force as of June 21, 2020.

It should be noted that, regarding the judicial pension regime and with respect to what is relevant for resolving this matter, the applicable legislation finally stipulated that the amount exempt from the special solidarity contribution would be up to 6 base salaries of the lowest-paid position in the Judicial Branch (Article 4, subsection b). For its part, Article 5 indicated that the deduction of the solidarity contribution would be applied in compliance with the progressive contribution scale, and it was clarified again that in no case could the sum of the solidarity contribution and the totality of deductions applied to all pensioners and retirees covered by the law represent more than 55% of the total gross amount of the pension, such that, otherwise, the respective adjustment would be carried out so that the sum equals that 55%. In accordance with the foregoing, through Article 7 of the law under study, it was provided to further reform the already cited Article 236 bis of the Organic Law of the Judicial Branch, specifically, its subsection a), so that this precise article was established as follows:

“In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.” In this way, at that time and before Judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021, was issued - which, as stated, ruled on the constitutionality of Law No. 9544 - Article 236 bis of the Organic Law of the Judicial Branch read as follows; that is, without any interpretation having been issued on its content:

“Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess over the previous margin, they shall contribute fifty-five percent (55%).

In no case may the sum of the special, solidarity, and redistributive contribution and the totality of the deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%) of the total gross amount of the pension rightfully corresponding to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the special, solidarity, and redistributive contribution, established in this law, shall be deposited into the Judicial Branch Retirement and Pension Fund.” In addition to the above, it should be emphasized that the approved Law No. 9796 discarded the article that originally contemplated transferring the obtained resources to the payment of the State debt. This situation can be verified by reading the final part of the provisions in the supra-cited Article 236 bis of the Organic Law of the Judicial Branch.

Thus, as can be seen with complete clarity, the substantial or most important change made by Law No. 9796, compared to the previous Law No. 9544, lies essentially in the shortening of the exemption range for the solidarity contribution, given that, from obligating the payment of the solidarity contribution to those exceeding the amount of ten base salaries of the lowest-paid position in the Judicial Branch, it shifted to obligating those exceeding the amount of six such salaries. This latter aspect, it is worth noting and warning from now, is of great importance for the purpose of resolving this constitutionality proceeding, especially based on the precedents that this Constitutional Chamber has already issued on this same matter.

Likewise, it is worth reiterating and making clear that Law No. 9796 not only made a modification to the Judicial Branch pension regime but also to other regimes, including, for example, that of the National Teachers’ Union, a situation on which this Chamber has also already issued a ruling, as will be indicated in the subsequent recitals.

VIII.- REGARDING THE RIGHT TO RETIREMENT AND THE CONSTITUTIONALITY OF SOLIDARITY CONTRIBUTIONS, ESPECIALLY CONCERNING THE JUDICIAL BRANCH RETIREMENT REGIME. On several occasions, this constitutional body has referred to the so-called solidarity contributions imposed on pensioners. Of special interest, for the purpose of resolving this unconstitutionality action, mention must be made of Judgment No. 2020-19274, of 4:30 p.m. on October 7, 2020, through which this jurisdiction ruled on the fundamental right to retirement, the limitations that may be applied to it, and, in particular, regarding this type of special contribution imposed, in that specific case, on pensioners of other regimes (other than the Judicial Branch regime) through Laws No. 9380 and 9383. Expressly, on that occasion, the following was stated:

“VI.- Regarding the right to social security and the right to retirement. This Chamber, on many occasions, has established in its jurisprudence the importance of social security, a right that in turn encompasses several rights; and, among them, the right to a pension or retirement. The right to social security is one of many other Economic, Social, and Cultural Rights, which encompasses other fundamental rights established in a series of provisions contained in human rights instruments and treaties. In this sense, they are part of Constitutional Law (values, principles, and rights), which allow it to be given specific content, as well as to sustain state actions that seek to materialize the political ends and state conduct inherent to them, with the objective of materializing those fundamental rights. In Costa Rica, they are rights that appear in the Political Constitution (as the great national social pact), but also, accepted as legal duties through the international obligations that the State freely and voluntarily acquires before the international community.

Thus, the right to social security, in the Political Constitution, finds its basis in Articles 50, 73, and 74, as well as the integration, in accordance with Articles 7 and 48 of the Constitution, with Articles 11 and 16 of the American Declaration of the Rights and Duties of Man; 22 and 25 of the Universal Declaration of Human Rights; 31 of the International American Charter of Social Guarantees; 25, 28, 29, and 30 of Convention No. 102 of the International Labour Organization, as well as Article 9 of the International Covenant on Economic, Social and Cultural Rights. In one of the most emblematic judgments of a then-new Constitutional Chamber, it was established, with complete clarity, the interrelation of these provisions to establish the fundamental right to retirement. Thus, through Judgment No. 1990-1147 of 4:00 p.m. on September 21, 1990, it was established that:

“III.- In the first place, the Chamber declares that there is indeed a constitutional and fundamental right to retirement, in favor of every worker in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, according to which:

\"Article 33.

Every man is equal before the law and no discrimination shall be made contrary to human dignity\" \"Article 73.

Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of forced contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law...\".

That conclusion is confirmed in a series of principles and international human rights norms, which have not only the rank superior to ordinary law conferred upon them by Article 7 of the Constitution, but also a direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself, in accordance with Article 48 thereof (reformed by Law No. 7128 of August 18, 1989); among those rights, specifically, those recognized in Articles 25, 28, 29, and 30—thus corrected from those invoked in the action—of Convention No. 102 on Social Security of the ILO, in which it is established:

\"Article 25.

Every Member for which this part of the Convention is in force shall guarantee to the protected persons the provision of old-age benefits, in accordance with the following Articles of this part\" \"Article 28.

The benefit shall consist of a periodic payment, calculated as follows... \" \"Article 29.

1. The benefit mentioned in Article 28 shall be guaranteed, in the contingency covered, at least:

• a)to protected persons who have completed, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence...\" \"2. Where the granting of the benefit mentioned in paragraph 1 is conditional upon the completion of a minimum period of contribution or employment, a reduced benefit shall be guaranteed at least:

\"a) To protected persons who have completed, before the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment... \" \"Article 30.

\"The benefits mentioned in Articles 28 and 29 shall be granted throughout the contingency\".

Other international texts also recognize, either specifically the right to retirement—due to age or old age—(e.g., Art. 16 American Declaration of the Rights and Duties of Man; 22 and 25 Universal Declaration of Human Rights; 31 International American Charter of Social Guarantees; 5th Convention on Equality of Treatment in Matters of Social Security, No. 118 ILO), or, in general, the Right to Social Security, within which retirement is universally understood to be included (p. ej.

art. 11 of the American Declaration of the Rights and Duties of Man; and 9 of the International Covenant on Economic, Social and Cultural Rights).

IV.- As can be seen, in both classes of the aforementioned norms, the fundamental right of every worker to their pension (jubilación) is recognized, and old age is clearly alluded to, in what is relevant, as the "contingency" determining the right to the benefit—pension (jubilación)—.

[…]

VII.- In any case, the Court considers that the right to a pension (jubilación), in general or in the special regimes alluded to, cannot normally be conditioned on the conduct of its holder, whether such conduct occurs before or after its consolidation as an acquired right. In reality, it is not ignored that the pension right (jubilación), like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are, furthermore, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than an expression of a well-known principle of Human Rights Law, which may be called proportionality, and which is generally included as a sine qua non condition of the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them; a principle that is listed, for example, in Articles 29.2 and 30 of the Universal Declaration of Human Rights, 29 and 30 of the American Convention on Human Rights, 5 of the International Covenant on Civil and Political Rights, and 4 and 5 of the International Covenant on Economic, Social and Cultural Rights" (...)".

The cited precedent demonstrates that, from very early in the jurisprudence of this Constitutional Chamber, the right to a pension (jubilación) was recognized as a constitutional right in favor of every working person, under conditions of equality and without any discrimination, and it is part of a general right to social security, as has been explained above.

In line with the discussion of the right to social security, as an Economic, Social, and Cultural Right, the Inter-American Court of Human Rights has also contributed to its protection by establishing the justiciability of such rights in the inter-American system, in light of Article 26 of the American Convention on Human Rights, by recognizing it "autonomously, as an integral part of economic, social, cultural, and environmental rights," and within the international and national corpus iuris such as the norms of the Charter of the Organization of American States (OAS), as well as norms of interpretation of the American Convention in Article 29. In this sense, as is well worth recognizing, both the Inter-American Court and the Constitutional Chamber use protective criteria of interpretation, especially when national norms grant greater rights than international norms, and vice versa, as this Chamber has done by enunciating the Law of the Constitution (principles, values, and rights), granting primacy to the constitutional norm over the rights contained in the international corpus iuris, especially when they guarantee more rights than the Political Constitution. Similarly, it is important to mention that the American Convention enunciates the principles of minimum guarantee and the pro-persona protective principle. The first as the recognition that every international treaty constitutes a floor or base that prevents the State itself from failing to recognize the rights to which it committed at the international level, in favor of the human person. Thus, it must always respect the minimum set in a specific treaty or another international agreement that surpasses it, but above all, without prejudice to improving those conditions through national regulations. As for the pro-persona principle, it must be noted that it privileges, prefers, and favors the application of the norms that offer the greatest protection to the rights of the human person, whether in a national norm or one of international law.

More specifically, the right to social security at the international level must be characterized by being composed of a minimum level of benefits that comprise at least basic health care, cash sickness benefits, unemployment benefits, old-age benefits, benefits in case of employment injury and occupational diseases, family benefits, maternity benefits, invalidity benefits, and survivors' benefits, all of this in accordance with Convention No. 102 of the International Labour Organization. The right to social security and social protection refers to the right that social security coverage shall not be denied arbitrarily or unreasonably, and the right to equality in the enjoyment of adequate protection in case of unemployment, sickness, old age, or lack of means of subsistence in circumstances beyond the person's control. By Judgment No. 2012-16628 of 4:30 p.m. on November 28, 2012, this Chamber established, in relation to the aforementioned Convention No. 102, the following:

"The truth is that international regulations establish what social security jargon calls, in some ILO documents, the social floor or social protection floor as a minimum of fundamental obligations that could indeed be justiciable; there are unfulfilled legal obligations that are demandable domestically, or, once that avenue is exhausted, at the international level. [...] What is important is that ILO Convention 102 contains nine branches of social security, where it establishes minimum standards for each of them, and enunciates principles for the sustainability and good governance of such systems. This convention includes a flexibility clause so that upon ratifying the Treaty, the State can choose at least three areas of protection." In this regard, it is clear that there is an obligation to recognize the floor or the normative base contained in the international instruments, so that when the State interferes with those minimums, these constitute a true limit, becoming a core of resistance that allows repelling unjustified transgressions or interferences by the State. Likewise, it must be protected from infringements by omission when these rights are disregarded. In this sense, such violations can be claimed judicially when fundamental rights are considered harmed. The foregoing allows understanding that there is a true hard core of the right to a pension. This must be composed, first, of the right to the minimum benefits defined by social security as a constitutional right and specified by international regulations. Thus, the base of the hard core of the right to a pension comprises the enjoyment of a series of national and international regulations that allow the insured person to have a dignified and adequate standard of living, without prejudice to affirming that there must be a reasonable and proportional relationship to the contribution to such right, because this is a compound right, as a social and economic effort of the different factors of production: State, Employer, and Workers. It must also include other international parameters freely accepted by the country, as international regulations that gather the concerns of the international community. As an economic, social, and cultural right, one must take into account some of its characteristics that could nourish the right to social security, as indeed specific international treaties on matters of older adults do. Others, for example, derived from the protection of the marital bond or de facto unions due to widowhood, as a right to receive survivors' benefits and other beneficiaries.

Secondly, due to the improvement in the benefit scheme of the rights achieved by society at a prior historical moment, which should only be diminished with justification (actuarial studies, national and international economic studies), so that there is a right to the maintenance of the protection that the insured person receives in accordance with national legislation, upon belonging to a regime and especially declared upon fulfilling the conditions and requirements necessary for the enjoyment of a right of peaceful enjoyment. As a result, a very important obligation is derived, that is, that there must be a very precise definition of the reasons that oblige the State to reduce conditions previously established through benefit policies, so that it must face stricter criteria according to its level of impact on the population (varying according to temporality and permanence). These policies, of course, must be concretized in legislation and secondary regulations approved under the respective legal framework (in accordance with regulatory authority), but without being as general as an economic or fiscal crisis, since evidently, the State's resources will always be scarce and limited, and whose function of distributing wealth will always lead it to weigh where to place more resources in certain economic and social benefits, based on the need to achieve political, economic, or social objectives (in a positive and programmatic sense), which can cause "urgencies" to other areas that push for more state resources. In other words, the financial crisis is neither in itself nor can it be a justification for regressive decision-making, but rather a trigger that must materialize in the public interest of the State to elevate concrete actions in its legislation. This, without forgetting that the Committee on Economic, Social, and Cultural Rights itself establishes a primacy of law and policy regarding these rights, where the lack of resources cannot serve as a pretext for their non-compliance.

Convention No. 102 of the International Labour Organization is not a rigid instrument, as it offers a framework that allows States to adapt their national realities to the protected schemes, but there are certain rules that must accompany national efforts to achieve the universalization of insurance, with coverage that is reasonable and balanced for the sectors involved. It should be noted, again, that when referring to the hard core of a right, reference is made to that part of fundamental rights in which the State would not be legitimized to interfere or transgress, because, in that case, it would be infringing the fundamental rights and freedoms contained in the Political Constitution as well as in international obligations acquired in international instruments of Economic and Social Rights. (...) the question of whether it is possible to establish taxes on the benefits received, derived from the right to a pension, is of importance. From the point of view of Constitutional Law, insofar as it integrates the principles, values, and rights contained in the Political Constitution, the close link with human rights in force in the Republic, the application of the challenged measures is the product of a democratic process, based on the public interest to contain and control public spending that has decimated the country's economic and response position. In this sense, this Chamber brings up Article 5 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, known as the Protocol of San Salvador, which states:

"The States Parties may only establish restrictions and limitations on the enjoyment and exercise of the rights established in this Protocol through laws promulgated for the purpose of preserving the general welfare within a democratic society, to the extent that they do not contradict the purpose and reason thereof." In this way, it must be affirmed that the right to a pension is not an absolute right, that although the conditions under which it was granted must be respected, this does not imply that the amount received month to month is exempt from restrictions and limitations. What the provision establishes is the recognition that economic and social rights entail benefit obligations of the State that commit its resources, so that there is recognition that a counterweight may operate to help delineate these restrictions and limitations, of course, provided they are reasonable and proportional. Thus, they cannot contradict the purpose and reason of the right in question. Implicit in this provision is the need for laws, approved through a democratic process and by a democratic body such as the Legislative Assembly, to be able to establish those restrictions and limitations that provide that balance, duly weighed.

In the case of the plaintiffs, it is clear that the amount that retirees (pensionados) and pensioners (jubilados) receive is adjusted to the amounts that active officials receive, in this case, Deputies of the Republic. On the other hand, the approval of taxes, through law, in accordance with Article 121, subsection 13), of the Political Constitution ensures compliance with constitutional requirements, as well as conventional ones, from Article 5 of the Pact of San Salvador. The special, solidarity, and redistributive contribution thus complies with another important aspect, such as the principle of tax legality, in which only through a formal and material law can the income of the citizens of the Republic be taxed, which is inherited from the Anglo-Saxon legal tradition of necessary representation in the approval of taxes: "no taxation without representation." Furthermore, as a tax, the special, solidarity, and redistributive contribution is framed within the doctrine of the Tax Rules and Procedures Code, in the sense that it defines the taxable event (benefit-pension) received as a state and benefit activity, and provides that the resources collected will be allocated to social security. In this sense, Article 4 of Law No. 9383 establishes this special contribution for social security quotas when it states that the resources collected return to the special pension regimes charged to the national budget, as well as the direct financing of the Non-Contributory Regime, administered by the Costa Rican Social Security Fund (CCSS). In the same sense, the sole article of Law No. 9380, insofar as it establishes the destination of the contributions for special pension regimes charged to the national budget. With all this, the provisions of Article 5 of the Pact of San Salvador are complied with. And, despite all the foregoing, the amount of the economic pension benefit continues to be maintained in a higher stratum of the national pension system, close to the income of those who provide services in a competitive labor sphere, which is why they maintain an economic level that still allows them to integrate and actively participate in the economic, social, cultural, and political spheres of the country. This is logical with the requirement of adequacy and dignity of retirees (pensionados) and pensioners (jubilados); of course, contribution and quota payment being necessary as contributory capacity increases, especially for those regimes that had not been previously intervened due to the excesses they contained, without unprotecting the amounts of other retirees (pensionados) and pensioners (jubilados) (...)” (The highlighting is not part of the original).

Now, with regard properly to the Judicial Branch, as was pointed out in recital VII of this judgment, a few years ago, this constitutional jurisdiction, on the occasion of the promulgation of the already also cited Law No. 9544—and mainly, by virtue of the provisions of Articles 236 and 236 bis of the Organic Law of the Judicial Branch—through judgment 2021-11957 of 5:00 p.m. on May 25, 2021, referred, in the first term and broadly, to the figure of the special solidarity contribution imposed specifically on the pensioners (jubilados) of this institution, and emphasized its constitutionality.

To arrive at this conclusion, the Chamber, on that occasion, first also alluded to the right to enjoy a pension (jubilación), as well as to the limitations and regulations that can be imposed on it. On the matter, on this occasion, the following was expressly indicated:

"XXIII.- Drafted by Judge Hernández López. On the right to enjoy a pension (jubilación). This Tribunal has clearly indicated that the model of the social State under the rule of law and the concept of social security adopted by our Political Constitution includes—as one of its elements—the right in favor of working persons to obtain a pension (jubilación) after fulfilling certain normatively established conditions. This is one of the forms of expression of the fundamental right to social security enshrined in our constitutional regulations, to which are added health insurance, the different types of contributory pensions, as well as non-contributory ones, among others. In this sense, judgment 2018-19030 of November 14, 2018, which served as the basis for resolving several claims in pension matters, clearly set forth the characteristics that this Chamber has defined specifically for this right:

IV.- On the right to a pension (jubilación). A pension (jubilación) constitutes the economic benefit obtained after working and contributing to a specific regime for a determined period, and whose purpose is to guarantee a dignified life for the person, after their stage as a worker ends. This Tribunal has held, on repeated occasions, that the right to a pension must be classified as a fundamental right, derived from numeral 73 of the Political Constitution, and is acquired from the moment the person meets all the requirements established by the corresponding legislation. Likewise, the existence of different regimes has been recognized, such as Collective Capitalization, in which the periodic contributions of the members create a common fund from which the payment of the participants' pensions will be met, or Individual Capitalization, in which the periodic contributions do not come from a group of people, but from an individual who, through their contributions to the fund, intends to guarantee the payment of their pension when they meet the requirements for obtaining it. Finally, there is the pension regime charged to the National Budget, in which the financing of pensions (jubilaciones y pensiones) is charged to the national budget. Now, regarding the general issue of the right to a pension, in judgments number 1147-90 of 4:00 p.m. on September 21, 1990, 487-94 of 4:06 p.m. on January 25, 1994, and 2010-1625 of 9:30 a.m. on January 27, 2010, the Tribunal expressed, in what is relevant, the following:

"III.- In the first place, the Chamber declares that there does exist a constitutional and fundamental right to a pension (jubilación), in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, according to which:

"Article 33 Every man is equal before the law and no discrimination contrary to human dignity may be made" " Article 73 Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of forced contribution by the State, employers, and workers, in order to protect them against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine..." This conclusion is confirmed in a series of international human rights principles and norms, which have not only the rank superior to ordinary law conferred upon them by Article 7 of the Constitution but also direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself, pursuant to Article 48 thereof (reformed by Law No. 7128 of August 18, 1989); among these rights, specifically, those recognized in Articles 25, 28, 29, and 30—thus corrected those invoked in the action—of Convention No. 102 concerning Social Security of the ILO, in which it is established:

" Article 25 Every Member for which this part of the Convention is in force shall guarantee to the persons protected the provision of old-age benefits, in accordance with the following articles of this part" " Article 28 The benefit shall consist of a periodic payment, calculated as follows... " " Article 29 1. The benefit mentioned in Article 28 shall be guaranteed, in the contingency covered, at least: a) to the persons protected who have fulfilled, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence...

"2. When the granting of the benefit mentioned in paragraph 1 is conditional upon the completion of a minimum period of contribution or employment, a reduced benefit shall be guaranteed at least: "a) To the persons protected who have fulfilled, before the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment... " " Article 30 "The benefits mentioned in Articles 28 and 29 shall be granted throughout the entire contingency" Other international texts also recognize, either specifically the right to a pension (jubilación)—by age or old age— (e.g., art. 16 of the American Declaration of the Rights and Duties of Man; 22 and 25 of the Universal Declaration of Human Rights; 31 of the International American Charter of Social Guarantees; 5 of the Convention concerning Equality of Treatment in Respect of Social Security, No. 118, ILO), or, in general, the Right to Social Security, within which a pension (jubilación) is universally held to be included (e.g., art. 11 of the American Declaration of the Rights and Duties of Man; and 9 of the International Covenant on Economic, Social and Cultural Rights).

IV.- As can be seen, in both classes of the aforementioned norms, the fundamental right of every worker to their pension (jubilación) is recognized, and old age is clearly alluded to, in what is relevant, as the "contingency" determining the right to the benefit—pension (jubilación)—. The objection of the Attorney General's Office is not understood by this, when it states that the provisions of ILO Convention No. 102 only protect "workers who suffer a contingency within their employment relationship, which is not the case of the appellant... (f. 62 fte.); thus giving, apparently, to the expression an incomprehensible sense of abnormality, certainly without any explanation." (…)

"II. This Chamber has already heard of the matter raised on other occasions (constitutional and fundamental right to a pension (jubilación y pensión) in favor of every worker), there being sufficient elements and jurisprudence that empowers its hearing in accordance with the second paragraph of Article 9 of the Law of Constitutional Jurisdiction.

III.By resolutions number 6124-93, at two thirty in the afternoon, and 6125-93, at two thirty-three in the afternoon, both of the twenty-third of November of this year, two actions of unconstitutionality were heard whose arguments were the same as those invoked by the plaintiffs in this one. In resolution number 1147-90, at four o'clock in the afternoon of the twenty-first of September of nineteen ninety, the Chamber considered that the pension (pensión) or pension (jubilación) constitutes a fundamental right with constitutional and international recognition that: 'belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution.'

Thus, it is recognized in Articles 25, 28, 29, and 30 of Convention No. 102 concerning Social Security of the I.L.O., 16 of the American Convention on the Rights and Duties of Man, 22 and 25 of the Universal Declaration of Human Rights, 31 of the International American Charter of Social Guarantees, 5 of the Convention concerning Equality of Treatment in Respect of Social Security, No. 118 of the I.L.O., 9 of the International Covenant on Economic, Social and Cultural Rights, an international sphere, which, in accordance with Article 7 of the Constitution, is integrated into our legal system.

IV.Membership in a given pension or retirement regime is acquired from the moment contributions begin to be made to said regime, but not the concrete right to a pension (jubilación), which is acquired when the interested party fulfills all the requirements established in the law, (...)"

(…).

" IV. The right to a pension (jubilación) and the Social State under the Rule of Law. Articles 50, 56, and 74 of the Political Constitution configure 'the model of the social and democratic State under the rule of law' (Res. 9255 of 4:03 p.m. on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State under the Rule of Law 'entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations' (Res. 13205 of 3:13 p.m. on September 27, 2005). Consequently and based on the Social State under the Rule of Law, 'our Political Constitution contemplates a set of benefit rights relating to the protection of... workers' (ibid), as is the case of the right to a pension (jubilación). (...)” (Judgment 2018-19030 of November 14, 2020) XXIV.- Drafted by Judge Hernández López. The limitations and regulation of the scope of the right to a pension (jubilación) recognized in favor of working persons. On the subject of the right to a pension (jubilación), this Tribunal has also emphasized the power of the State to regulate, order, and limit the scope of the cited right. In the same judgment 2018-19030, recently cited, it was stated:

"V.- The right to a pension is not an absolute right. Like any other fundamental right, the right to a pension is not unrestricted, as it can be subject to certain limitations, provided they are established by a formal law, are reasonable, and do not impede its exercise. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to a pension, when it can be proven that certain situations exist, such as inequalities or privileges, that put the sustainability of a regime at risk, and, therefore, threaten the nature of the system as such. On the matter, in vote number 2379-96 of 11:06 a.m. on May 17, 1996, the following was established:

II.- ON THE RIGHT TO A PENSION (JUBILACIÓN).- In repeated decisions, a fundamental right has been recognized in the pension (pensión) or pension (jubilación) in favor of the worker. See, for all, the pronouncement of this Chamber number 1147-90 of four o'clock in the afternoon of the twenty-first of September of nineteen ninety, in which it was established: 'In the first place, this Chamber declares that there does exist a constitutional and fundamental right to a pension (jubilación), in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Political Constitution...' However, in the same pronouncement cited, it was established that said right is not absolute and can be subject to conditions and limitations: 'In reality, it is not ignored that the pension right (jubilación), like any other right, is subject to conditions and limitations but both only insofar as they are provided for by the norms that recognize and guarantee them and are, furthermore, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than an expression of a well-known principle of Human Rights Law, which may be called proportionality and which is generally included as a sine qua non condition of the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them.'.

From the transcribed text, it is clear that within the entire universe of limitations, conditions, and restrictions that the fundamental right to a pension (jubilación) may suffer, there will be a group of them of which it can be predicated that they are constitutionally valid provided they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the very exercise of the right in accordance with its nature and purpose.

It is also correct to conclude that—by imperative of the structural logic of our legal system—the first of the conditions just mentioned may be broadened to include limitations and conditions stemming from higher-ranking texts or from texts of the same rank, as occurs in this case with the limitations that may arise from the Political Constitution itself, understood not only as a grouping of norms but as a set of integrated regulations and principles aspiring toward harmony.

Those concepts were endorsed by a majority of the Chamber when the legislative consultation was answered regarding the bill that ultimately became the law 9544 discussed here. In that ruling (sentencia 2018-005758), it was reaffirmed:

“(…) It is worth noting that the right to a pension (derecho a la jubilación) is not unrestricted, since it may be subjected to certain limitations, provided that these are established by a formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislature has the power to establish restrictions on the right to a pension, when it can be proven that certain situations exist that jeopardize the sustainability of a regime and, therefore, threaten the nature of the system as such.” And later, it concluded that:

“Now then, from the foregoing it clearly follows that the right to a pension may be subjected to limitations, just like any other fundamental right. The foregoing implies that a person does not have a right to retire under specific conditions, since these may be varied when necessary to guarantee the existence of a specific pension and retirement regime, because otherwise, conditions could be created that make the system financially unsustainable, which would ultimately lead to the right to a pension being severely affected, or its exercise not being entirely possible, given the lack of funds that would prevent the payment to the interested party of the amount of their pension. (…)” From what has been said, it is concluded that the thesis that the State, through its competent authorities, may adjust the specific conditions for exercising the right to a pension enjoyed by workers, not only through establishing requirements to be met for its effective enjoyment but also through the precise modification of the characteristics of that enjoyment, in order to balance the sustainability of said regime and respecting the requirement that the changes “be established by a formal law, be reasonable, and not affect its essential content,” is settled in the jurisprudence of this Chamber. (see sentencia 2018-5758 just cited) (…)” (The emphasis is not part of the original).

A few lines later, in this same sentencia 2021-11957, this Chamber referred to the special solidarity contribution (contribución especial solidaria)—created, as stated, through Law No. 9544, with the consequent reform to article 236 bis of the Ley Orgánica del Poder Judicial—explaining and likewise concluding the following:

“XLV. Drafted by Judge Hernández López. The constitutionality of the legal figure of the special, solidarity, and redistributive contribution in general. This Court has stated on previous occasions that the so-called special, solidarity, and redistributive contribution is not equivalent to a tax and does not constitute one under the terms provided by the Political Constitution in articles 18 and 121 subsection 13), given that it is conceived solely to benefit the regime of the obligated contributors, but under no circumstances may that money enter the State’s coffers, with the character of current income to satisfy expenses other than the burdens of the retirement and pension system (see, in that sense, judgment number 5236-99 of 2:00 p.m. on July 7, 1999). It has also been affirmed that this type of contribution is a legal obligation born from a system that contemplates the contribution of the affiliated employees, and that this act of setting the contribution must indeed be controlled, such that it is possible to analyze, in a jurisdictional venue, respect for the established legal procedure and the reasonableness in setting the contribution (see judgment number 5236-99 of 2:00 p.m. on July 7, 1999). Thus, the special, solidarity, and redistributive contribution established in that numeral 236 bis of the Ley Orgánica del Poder Judicial is not a novel mechanism used by the legislature to attempt to strengthen a retirement and pension regime; on the contrary, it has already been used in other systems, as was done in Law number 7268, which is the Reforma al Régimen de Pensiones del Magisterio Nacional, and this Court, in acción de inconstitucionalidad number 3683-M-93, had analyzed that contribution and considered the following:

“III. REGARDING THE CONTRIBUTION PROVIDED FOR IN ARTICLE 12. The contributions, both the general and the special, established to be paid by pensioners and retirees in article 12 of Law number 7268, have constitutional legitimacy, as they are, in the first place, measures founded on the social nature of the right to a pension, which are part of the principles forming the Social State of Law embodied in Article 50 of the Constitution, and in the second place because, due to that indisputable social nature, the right to a pension requires active and predominant participation by the State for its effective realization, so that although it could not be eliminated or entirely neglected, it can be limited, conditioned, and restricted to the extent that the State—society—is materially prevented from contributing to its effective realization beyond a certain level, and such limitations must be accepted insofar as their purpose is precisely to ensure the survival and effective exercise of the right to a pension for all workers and, specifically, the materialization of the right to a pension for all members of the Régimen de Pensiones del Magisterio Nacional. For further elaboration, one may cite resolution number 1925-91 of twelve o'clock on September 27, 1991, of this Chamber, in which it was stated:

“1) Nature of the contribution to the regime: The first aspect being consulted is to clarify whether or not the contributions established in this article of the bill constitute a tax. The retirement and pension regime that is the subject of this analysis corresponds to the so-called contributory model, in which a fund is constituted with the contributions of workers, employers or bosses, and the State to cover the cost of the benefits, once the worker retires. It is for the Law to define, according to the special characteristics of each pension or retirement system, the amount of the contributions corresponding to each of the three parties. As indicated in the consultation, the Corte Suprema de Justicia, in a resolution at three o'clock in the afternoon on August 12, 1987, declared unfounded the acción de inconstitucionalidad filed against the power of the Caja Costarricense de Seguro Social to determine the quotas and benefits of social insurance. This Chamber shares what was expressed therein and finds no reason to vary that criterion, which it adopts as its own, declaring that the contribution referred to in article 12 of the bill, by its nature and effects, is not a tax, as the most qualified constitutional jurisprudence and doctrine have indicated.” Also, in judgment number 1341-93 of ten-thirty in the morning on March 29, 1993, the question was revisited, and the criterion expressed on the matter was reiterated, stating the following:

“VII. CONTRIBUTION TO THE RETIREMENT AND PENSION FUND AND CONFISCATION. It is also alleged, in the various retirement regimes, that it is a violation of fundamental rights to require the beneficiaries thereof to contribute to the Fund, because it implies giving retroactive effect to Law 7268 or 7302, as the case may be, and ultimately that the measure is confiscatory. This Chamber, through Vote No. 1925-91 at 12:00 p.m. on September 27, 1991, expressed that the contributions collected under Article 12 of Law 7268 do not constitute a tax, because the regime is structured according to the so-called contributory model, in which a fund is constituted with the contributions of workers and beneficiaries, employers or bosses, and the State, to cover the cost of the benefits; and it is for the Law to define, according to the special characteristics of each pension or retirement system, the amount of the contributions that each must contribute. This criterion was expressed by the Chamber in the optional Legislative Consultation, during the approval process of Law 7268, and in which Article 12 was specifically consulted. The Chamber noted that the contribution is the payment of a legal obligation, an essential condition for the very existence of the regime, and whose foundation is the strengthening of the Fund, for the protection and benefit of the contributors themselves. The setting of the contribution, within the limits established by the Law itself, must obey technical, actuarial criteria, to define the real cost of the system, such that 'the only way the individuals holding a pension or retirement can fully enjoy it is by covering the proportional cost that corresponds to them of the total system' (Cf. cited ruling), and the rationale for the law is thus consistent with the Christian principle of social justice (Art. 74 of the Political Constitution) and proportionate to the duty to contribute to the extent of the benefit obtained. From that same viewpoint, it was concluded that the contribution is not confiscatory. The Chamber finds no reasons to modify the expressed criterion and, regarding this aspect of the amparo, proceeds to declare it unfounded, maintaining its jurisprudence (Article 9 of the Ley de la Jurisdicción Constitucional).” From the foregoing, the special, solidarity, and redistributive contribution challenged in this acción de inconstitucionalidad must be understood as a constitutionally valid limitation on the right to a pension, arising from the social character of that right, and therefore it is not unconstitutional in itself, nor in relation to the objectives pursued by its creation.

XLVI. Drafted by Judge Hernández López. On the creation of the special, solidarity, and redistributive contribution as a power of the Legislative Branch. The plaintiffs argue that, in accordance with the provisions of Article 121, subsection 13 of the Political Constitution, the Asamblea Legislativa lacks the authority to create special, solidarity, and redistributive contributions in favor of a specific fund, given that this subsection states “to establish national taxes and contributions,” recalling that the legislator's freedom of configuration is limited by the Law of the Constitution. Notwithstanding the foregoing, the Chamber considers that they are not correct in this claim because, as stated, the special, solidarity, and redistributive contribution is not configured as a tax but rather as a parafiscal charge, founded on the social nature of the right to a pension, which forms part of the principles constituting the Social State of Law embodied in Article 50 of the Constitution, and therefore it is constitutionally valid, and furthermore because, as stated, it is vested with an indisputable social nature protected by the State through the adoption of measures necessary for the effective realization of the social right to which it is directed, so its imposition is valid precisely to ensure the survival and effective exercise of the right to a pension for all employees of the Poder Judicial.

Likewise, it must be recalled that, for the Chamber, measures such as the special, solidarity, and redistributive contribution—as contributions to social security—are parafiscal contributions, imposed in the exercise of the State's sovereign power for the fulfillment of social or economic purposes, and can only be created through formal law.

On the subject of the parafiscal contribution, constitutional jurisprudence, following the doctrine, has considered that parafiscal contributions are figures belonging to general taxation. By way of example, see judgments 4785-93 and 6478-96. In this latter case, the following was established:

“II. On the merits: the plaintiff challenges the employer's pecuniary obligation established by Article 5 of the Ley Orgánica del Banco Popular y de Desarrollo Comunal, which is transcribed below, in relevant part:

‘Article 5. The Fondo de Trabajo Capitalizado shall be formed by: a) A monthly contribution of 1/2% on the remuneration, whether wages or salaries, that must be paid by private employers, the Branches of Government, and all public institutions; and (...)’, alleging a violation of the right to private property and freedom of commerce. Regarding the alleged violations, it must be recalled that the amount charged to employers to constitute part of the mandatory savings of their employees consists of a parafiscal contribution, under the terms and with the consequences defined by this Court:

“This special legal configuration necessarily implies that the contributions, both those of the producers and those of third parties, including the State, that make up the Fund (subsection a) of Article 2 idem), are true contributions with clear economic and social purposes, known in Tax Law doctrine as 'parafiscal contributions,' which are imposed by the State but do not appear in the general budget of revenues and expenditures, hence they receive the aforementioned name. The same Financial Law doctrine defines the figure as 'tributes established in favor of public or semi-public, economic or social entities, to ensure their autonomous financing.' This means, therefore, that the parafiscal contribution does not constitute a figure distinct from general taxation (...)” In all the cases of this type of contribution analyzed by constitutional jurisprudence, we find a common denominator, which is that we are dealing with a contribution coercively imposed by the State to achieve a specific economic or social purpose for a group of people who have common interests (farmers, professionals, cooperative members, workers, etc.).

(…)

It is invoked as a violation that the Asamblea Legislativa created a special tax, when, pursuant to numeral 121, subsection 13, of the Carta Fundamental, this constitutional body is only attributed the power to establish national taxes and approve municipal ones. This grievance must be rejected for several reasons. First, what is created in this case is a parafiscal contribution, that is, a tribute destined for an economic and social purpose, in this case to cover the administrative expenses of the Junta being created, which is constitutionally and doctrinally more than justified. Second, it is logical that if a group of workers has a special retirement and pension regime, forming a fund separate from the general regime—the disability, old-age, and death regime administered by the Caja Costarricense del Seguro Social—it is reasonable and proportional that active workers, retirees, and pensioners contribute to the maintenance of the body whose responsibility is its administration. Finally, if the Asamblea Legislativa has the power to create tributes of general scope, that does not prevent it from creating parafiscal contributions when objective and reasonable grounds for their creation exist (…)” (The emphasis is not part of the original).

Thus, it is observed how the Chamber has been of the opinion that the imposition, per se, of the payment of a special solidarity contribution cannot be classified as unconstitutional, nor does it represent a violation of fundamental rights, especially that of pensioners. This is particularly so if one considers its objectives or purposes, which lie in guaranteeing the right to a pension, in this case, the right of the employees of the Poder Judicial.

IX.ON THE CURRENT OBLIGATION OF CONTRIBUTION BY RETIREES OF THE PODER JUDICIAL, THE MAXIMUM CAP OF 55%, AND WHAT HAS BEEN PROVIDED IN THIS REGARD BY THIS CONSTITUTIONAL CHAMBER. By virtue of what is set forth in articles 4 and 7 of Law No. 9796, the latter of which, in turn, reformed article 236 bis, subsection a), of the Ley Orgánica del Poder Judicial, it follows that the retirees of the Poder Judicial who are currently obligated to contribute in a special, solidarity, and redistributive manner are those who receive a pension amount exceeding 6 base salaries of the lowest-paid position in the Poder Judicial. The foregoing, in turn, in accordance with the following table of amounts and percentages set forth in that same article 236 bis of the Ley Orgánica del Poder Judicial, that is, the following:

“a) On the excess over the amount of six (6) base salaries of the lowest-paid position in the Poder Judicial and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.

• b)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess over the previous margin, they shall contribute fifty-five percent (55%[1]).” According to the above, it is understood, then, that those who receive higher amounts of pension must contribute higher sums to the regime.

According to the review of the case file, for the second half of the year 2019—the year in which the challenged regulations were issued—the lowest salary of the lowest-ranked position in that institution (Auxiliar de Servicios Generales 1) corresponded to the amount of 425,800.00 colones. Thus, those who then received—in 2019—a gross pension amount exceeding ¢2,554,800.00 colones were required to carry out said contribution, as stated, in a staggered or progressive manner.

For the first half of 2023, according to data from the Dirección de Gestión Humana of the Poder Judicial, the lowest salary of the lowest-ranked position (corresponding to the position of Auxiliar de Servicios Generales 1) was set at the sum of 433,800.00 colones, so that pensions greater than ¢2,602,800.00 colones were those that had to contribute in solidarity.

Having said the above, it is worth noting that, coupled with said special contribution (contribución especial), a series of additional deductions are made from the pension amounts of the retirees of the Poder Judicial. Pursuant to the provisions in article 236, subsection 1), of the Ley Orgánica del Poder Judicial—which was amended through the aforementioned Law No. 9544—retirees must contribute 13% of their pension to the Fondo de Pensiones del Poder Judicial. In addition to that—as is evident from the report issued by the then-President of the Corte Suprema de Justicia—the retirees of the Poder Judicial also have deducted from their pension amount that related to administrative expenses of the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial (“five per thousand of the salaries earned by judicial employees, as well as of the retirements and pensions payable by the Fund,” according to article 239 of the Ley Orgánica del Poder Judicial), income tax (which ranges between 10% and 25%), a percentage for maternity and sickness insurance of the CCSS (of 5.50%), among other sums.

Concomitantly, it is worth reiterating what article 5 of Law No. 9796 under review provides in this regard, with the understanding that:

“In no case shall the sum of the solidarity contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” Based on the foregoing, it is thus feasible to point out that, pursuant to the provisions of currently effective Law No. 9796, a series of deductions—including that related to the solidarity contribution—may be applied to the pension amount received by the retirees of the Poder Judicial, all of which, added together, may reach a maximum percentage of 55%. A contrario sensu, this regulation permits, in these latter cases, that the retirees of this institution may only receive 45% of the original amount earned as a pension.

Now, at this point in this judgment, it is of utmost relevance to point out that although—as explained above—this Constitutional Chamber has held that the imposition of the payment of a solidarity contribution is not in itself unconstitutional, it has also said and considered, on other occasions, that the sum total of deductions made from the retiree’s pension amount (including the amount related to the solidarity contribution) may not exceed 50%, such that any percentage established beyond that does translate into a condition of unconstitutionality.

This criterion was first upheld by this constitutional body in the already-referenced Sentencia 2020-19274, of 4:30 p.m. on October 7, 2020—which corresponds to an acción de inconstitucionalidad filed against the provisions of Laws Nos. 9380, 9381, 9383, and 9388 and through which, precisely, the deductions made from the pension amounts of regimes other than the Poder Judicial for the special solidarity contribution were studied. On that occasion, on this particular point, the following was expressly stated:

“[T]he examination that must be made of the norms challenged in this action must include an analysis that allows resolving, from the outset, the legitimate claims of pensioned persons to have some stability in their rights and finances, and to make an appropriate weighing of the State’s needs to act within a framework of responsibility in managing the resources that serve to grant these pensions. (…)

Convention No. 102 of the International Labour Organization is not a rigid instrument, as it offers a framework that allows States to adapt their national realities to the protected schemes, but there are certain rules that must accompany national efforts to achieve the universalization of insurance, with coverage that is reasonable and balanced for the sectors involved. It should be noted, again, that when referring to the hard core of a right, reference is made to that part of fundamental rights in which the State would not be legitimately able to interfere or transgress, because in such a case, it would be infringing upon the fundamental rights and freedoms contained in the Political Constitution as well as in international obligations acquired in international instruments on Economic and Social Rights. In general, this Chamber must therefore ask itself, in this action, whether the legislation that the legislature approved through Laws No. 9380, No. 9381, No. 9383, and No. 9388, is respectful or not of the international regulations invoked by the parties in the actions, as well as the national and international corpus juris that forms part of this Court’s jurisprudential doctrine. This leads us to issues such as the obligations contained in Convention No. 102 of the International Labour Organization, regarding the rights of beneficiaries, and those of good governance for the maintenance and preservation of these mechanisms of intergenerational solidarity.

It is important to note that the Convention constitutes a mandatory frame of reference for States; that is, it contains provisions that are the basis for the regulations they may subsequently approve according to the different types of coverage to which they have committed. It goes without saying, as has been indicated on other occasions, that States may improve those standards. Adhering to that regulatory framework, Part XIII of the mentioned Convention provides for other “Common Provisions” for the coverages offered to the insured, including causes for suspension, the possibility of judicially litigating matters relating to the rights involved, as well as the rules generally governing administration. This means that they are rules that amalgamate and unite certain aspects of the coverages; and, consequently, some administrative aspects must be considered together.

In this way, it contains two guiding principles, the principle of financial solidarity (collective financing and financial solidarity in International Labour Organization documents) and the principle of State responsibility, where the first enunciates the obligation contained in subsection 1) of Article 71 of the indicated Convention No. 102, which states:

“The cost of the benefits granted in application of this Convention and the administrative expenses of those benefits shall be collectively financed by means of contributions or taxes, or by both means simultaneously, in a manner that avoids persons of modest economic resources having to bear a burden that is too onerous and that takes into account the economic situation of the Member and that of the categories of persons protected...”.

That is, this provision establishes an obligation on the part of the State not to place the entire weight of the benefit system on the beneficiaries, and with greater reason on the least fortunate. Hence, the possibility for the benefits covered by the States under the Treaty to be financed through contributions and taxes (without being mutually exclusive financial instruments), so that it is a collective responsibility of the beneficiaries and the society in which a regime is contextualized. This evidently obligates both present and future beneficiaries through contributions, and society as a whole, through tax schemes. And, principally, it can be affirmed that it includes a protection clause for the weakest beneficiary, namely persons of lesser resources, by establishing a safeguard that prevents burdening these beneficiaries.

On the other hand, the principle of State responsibility in providing the benefit obligations would be present in the same Article 71, but in subsection 3) of the mentioned Convention No. 102. Said provision establishes:

“The Member shall assume general responsibility in what concerns the service of benefits granted in application of this Convention and shall adopt, when appropriate, all necessary measures to achieve that end; it shall guarantee, when appropriate, that the necessary actuarial studies and calculations relating to the balance are established periodically and, in any case, prior to any modification of the benefits, the insurance contribution rate, or the taxes intended to cover the contingencies in question.” It is clear how the State is the guarantor of the country's pensions. This numeral establishes a series of guarantee obligations on the part of the State, especially that referring to leadership in what concerns the service of benefits granted, which includes the formalities it must observe when exercising the implicit obligation to monitor and materialize all measures involved in preserving pension funds, including corrective ones. In this sense, shortfalls in resources generated by problems in administration could not be attributed to and borne by the beneficiaries; on the contrary, the Convention establishes that the State must guarantee the granted benefits in all cases. As will be discussed further below, it would encompass all the benefits to which it committed, established by Convention No. 102 of the International Labour Organization, especially because they constitute the sole means of subsistence that protected persons may have upon the occurrence of the social security coverages.

Now then, in the case before us, it is of interest to elaborate, in its general outlines, on subsection 2) of Article 71 of Convention No. 102 of the International Labour Organization, insofar as it establishes the following:

“The total of insurance contributions payable by protected employees shall not exceed 50 percent of the total resources destined for the protection of employees and of the spouses and children of such employees.

To determine whether this condition is met, all benefits provided by the Member, in application of this Convention, may be considered together, with the exception of family benefits and, in the case of employment injuries and occupational diseases, if the latter depend on a special branch.” A first point that must be noted is that this subparagraph 2), of numeral 71, of the cited Convention, can be interpreted to mean that the costs for “wage earners (asalariados)” of all contributions for which they are liable may not exceed 50%, to cover all beneficiaries (wage earner, spouses, and children). Clearly, the rule refers to an international obligation and a restriction that States have freely accepted, which they must apply in good faith for the benefit of the beneficiaries, so that it includes a cap on the taxing power that the State may demand from wage earners, whether in contributions and taxes (paragraph 1). This Tribunal observes that the provisions refer to a total “of the resources allocated to protection,” which are precisely obtained from contributions or taxes, “or by both means simultaneously.” It is, then, a globally considered requirement regarding the quantum of the financing mechanisms that the State may use when exercising taxing power over “wage earners (asalariados).” This conclusion can be reached when it enunciates the following normative parameter: “To determine whether this condition is met, all benefits provided by the Member [...], may be considered together…,” except for family benefits and employment injury benefits, which could increase the contribution rate.

To better illustrate the international obligation, it is necessary to refer to the General Survey concerning the social security instruments, in light of the 2008 Declaration on Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), Report III (Part 1B), held at the International Labour Conference, 100th Session, 2011, which indicates the following:

“455. Whatever the sources and mechanisms of financing, the State ‘shall accept general responsibility for the due provision of the benefits provided in compliance with this Convention and shall take all measures required for this purpose’ (Article 71, paragraph 3, of Convention No. 102). The overall financial responsibility of the State is complemented and reinforced by its ‘general responsibility for the proper administration of the institutions and services concerned in the application of this Convention’ (Article 72, paragraph 2). From a financial perspective, the general responsibility of the State entails numerous related obligations, including the need to ensure that: (1) the rates of contributions or taxes feeding the system, while being sufficient to finance the cost of benefits, do not constitute an excessively heavy burden for persons of modest economic means, for specific classes of protected persons, or for the economy in general (Article 71, paragraph 1); (2) the cost of benefits is distributed equitably among wage earners, their employers, and the State, so that the total percentage of insurance contributions borne by wage earners for the financing of the system providing protection for them and their families does not exceed 50 percent, while the rest of the funds come from employers’ contributions and State subsidies (Article 71, paragraph 2); (3) adequate benefits are periodically paid from the system, which are not less than the minimum level established by the Convention (Articles 65, 66, and 67); (4) the income and costs of the system are maintained in a fairly stable financial equilibrium (Article 71, subparagraph 3); and (5) measures are foreseen to minimize the possibility that social security funds are misused, lost, or embezzled. The system of public institutions responsible for supervising social security schemes varies according to the country….” In turn, attention is drawn to the same criterion expressed by the Committee of Experts, but this time, regarding the principle of collective financing, when indicating that:

“443. An obvious precondition for a social security scheme to be effective is that it must have effective mechanisms enabling it to obtain resources. The certainty, security, and adequacy of benefits paid from social security funds depend on the regular and systematic inflow of financial resources and raises the basic question of how such resources should be collected. There are, broadly speaking, two main options for this purpose with a view to achieving a balance between the system's income and the expenditure incurred by benefits: raising the necessary resources collectively, that is, with the participation of all members of the community, or allowing each member to rely exclusively on the individual accumulation of capital, the investment of which will provide the future benefits. The instruments under consideration, like all the up-to-date ILO social security Conventions, are based on the principle of the collective financing of benefits, according to which the cost of benefits, as well as the administrative expenses incurred, shall be financed collectively by means of contributions or taxes, or by both means simultaneously, while being distributed equitably among the interested parties (Article 71, paragraph 1, of Convention No. 102). This question was clearly highlighted during the preparatory work for Convention No. 102: ‘The main problem concerning financial resources to be considered in international regulations therefore seems to be that of the appropriate distribution of financial responsibilities among insured persons, employers, and the State. [...] It is an essential part of the concept of social security that the risk under consideration must be addressed through the collective assumption of the financial burden represented by the payment of benefits. Various possible combinations of contributions or taxes exist to carry out this idea. The wording of the questionnaire does not attempt to contradict these concepts, except that it does not permit solutions that involve overburdening persons of scarce resources. The questionnaire also suggests the advisability of setting a maximum limit on the participation of wage earners, so that at least half of the resources of social security systems are obtained in a more equitable manner through state subsidies or employer contributions’ (citing ‘International Labour Organization, 1950, Report IV (1), pp. 134 to 136’).” In the same manner, the Committee of Experts ensures that it describes the breadth of options that countries may agree upon when complying with the financing obligations of social security schemes, and mentions that:

“444. The Committee observes that national practices regarding the financing of social security schemes show an important range of options, ranging from tripartite contributions from insured persons, employers, and the State, to schemes financed by contributions from each of these actors separately, as well as programs financed jointly by worker and employer contributions, with or without state subsidies. In view of such diversity of national policies on financing, Convention No. 102 did not attempt to ‘give its approval to any particular method of financing, to the exclusion of any other alternative procedure’, but rather sought to ‘determine certain very broad basic principles, to which different countries could adhere even when applying entirely distinct financial policies’ (citing ‘International Labour Organization, 1950, Report IV (1), p. 136’).” If the Convention establishes the need, reasonably, precisely, and with the objective of establishing a solidarity-based system, then the necessity of establishing the contribution and the dues from wage earners for the establishment and maintenance of a social security system cannot be questioned. This would be part of the intergenerational responsibility of this type of system. Subparagraph 2), of article 71, of Convention No. 102, of the International Labour Organization, is carefully designed to cap the State’s power to demand contributions, dues, rates, charges, rents, and taxes from the beneficiaries of the pension system; first of all, taking into account contributory capacity, which is clear when the rule under comment does not place the entire weight and burden on the “wage earner” or, in the aforementioned report, the “insured person.” Secondly, it cannot be understood as detached from the individual historical sacrifices of the beneficiary to achieve those formal and material requirements for access to the right to a pension. Thirdly, the provision is careful to distribute the responsibility for the scheme among the different social actors, including the State, primarily, in its dual role as employer and in its capacity as administrator and generator of good administration policies.

But the case before us compels us to specify the meaning of the word “wage earners (asalariados)” contained in subparagraph 2), of article 71, of the cited Convention, as it does not appear to refer only to active workers. It remains to be determined whether “wage earner” means only the worker before acquiring the right to a pension due to the advent of the formal and substantive conditions of the right, or whether it is possible to understand that wage earner also refers to another type of system beneficiary. In the opinion of this Chamber, a broader interpretation must be given that includes not only the active worker, to admit that, in effect, the retiree or pensioner would be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic point of view, in that the retiree or pensioner receives a deferred salary that they built up with their contributions throughout their working life. Even so, it cannot be overlooked that in the document of the Committee of Experts, the concept of wage earners evolves when it refers to “insured persons.” Thus, this concept must be assimilated to both obligated parties, as potential and current insured persons: the pensioner and the wage earner. See that the cited study emphasizes that there is no straitjacket on the States; on the contrary, the approach must respond to national contexts, and the evolution of systems cannot be ruled out to agree upon a solidarity-based financing system and good governance within the framework and evolution of human rights, as will be said below. If the provision seeks to achieve a balance, it is perfectly reasonable that it should include all those receiving a pecuniary sum as a result of the agreed-upon benefit, because in that sense, it distributes that burden among all participants, which is what the international norm really seeks to establish. This interpretation would replicate positively with the Committee of Experts, already cited. Consequently, it must be understood that “wage earner (asalariado)” or “insured person (asegurado)” has a broad meaning, and that it is not a term excluding retired or pensioned persons.

Having established the foregoing, that both contribute, then, the principle of collective financing for this type of benefit follows as a natural consequence, which, as indicated, would consist, on the one hand, of the contributions and/or dues from wage earners and employers; and, on the other, also includes the support of the entire community: that is, of society through the taxing power of the State. In accordance with this principle contained in the conventional norm, it is established that the cost of benefits must be distributed among the beneficiaries, the employers, and the State (in a broad sense). This has the consequence that beneficiaries should not face alone the burden of administration and maintenance of pension schemes, because for that purpose, by international obligation, the universe of other interested parties must be included, as an integrated system of more equitable relations within the population, which aims to prevent old age from implying impoverishment of the population, which, in itself, due to the natural aging process, results in making the person more socially and economically vulnerable as they advance in age.

In the cited article 71, there are two regulations relevant to the case before us, which allow us to affirm that there is double protection: one that seeks not to harm the most modest benefits of the system; and another, that of social and community solidarity, which leverages the system to prevent half the burden of the economic and administrative cost from being placed solely on the beneficiaries, but rather constitutes a true international obligation of the State, to procure, administer, and correctly direct benefits, providing income from contributions and taxes that allow for a more equitable distribution of the other half of its costs. In this sense, the crux of the constitutionality problem before us lies in establishing whether that percentage has been illegitimately exceeded, and what must be taken into consideration: whether all the dues and tax contributions to which the retiree or pensioner would be subjected, or only those whose purpose is the pension fund.

In this sense, as the first point to be examined is the provisions that contemplate the contribution for active workers and retirees and pensioners, established in Law No. 9380, as well as the special, solidarity, and redistributive contributions, and other taxes that apply to salaries and pensions exceeding a certain number of base salaries of the public administration, in which case all are applicable to the excess amounts. Under review is Law No. 9380, of July 29, 2016, called “CONTRIBUTION PERCENTAGE FOR PENSIONERS AND ACTIVE SERVERS FOR SPECIAL PENSION SCHEMES (PORCENTAJE DE COTIZACIÓN DE PENSIONADOS Y SERVIDORES ACTIVOS PARA LOS REGÍMENES ESPECIALES DE PENSIONES),” which indicates:

“SINGLE ARTICLE.- Article 11 of Law No. 7302, Creation of the General Pension Scheme Charged to the National Budget, of Other Special Schemes and Reform of Law No. 7092, of April 21, 1988, and its Reforms, Income Tax Law, of July 8, 1992, is reformed. The text is as follows:

"Article 11.- […] In no case may the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%) of the total amount of the pension that legally corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension."" It is also worth transcribing a similar rule in Law No. 9383, of July 29, 2016, called “FRAMEWORK LAW FOR THE SPECIAL CONTRIBUTION OF PENSION SCHEMES (LEY MARCO DE CONTRIBUCIÓN ESPECIAL DE LOS REGÍMENES DE PENSIONES),” in that it indicates:

“Article 3.- Special, solidarity, and redistributive contribution of pensioners […] In no case may the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension that legally corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” In the opinion of the Chamber, the regulations infringe the terms of paragraph 2°, of article 71, of Convention No. 102, of the International Labour Organization, by establishing a cap higher than 50% that implies a burden on certain “wage earners (asalariados)” receiving a higher economic benefit, and the failure of the State to formulate contributory or tax proposals that do not exceed this amount. Even though the legislator took care to establish a 55% limitation with respect to the total gross amount of the pension, it exceeds by at least 5%. In accordance with the doctrine indicated above, this implies a violation of the hard core of the right to retirement or a pension, to the extent that retirees and pensioners have seen their retirement or pension benefits reduced in proportions even greater than that defined in International Labour Law, bearing beyond the limits established in the conventional norm (…)” (The highlighting is not part of the original).

Consequently, the operative part of the cited judgment 2020-19274 – subsequently corrected by means of interlocutory resolution No. 2020-19632, at 13:33 hrs. on October 9, 2020 – stated, regarding the matter of interest, the following:

“Therefore (Por tanto): By majority, the accumulated actions of unconstitutionality are partially granted. Consequently, the contribution percentage and the special contribution established in Laws No. 9380 and No. 9383, both dated July 29, 2016, are annulled, insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with article 91, of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber graduates and dimensions the effect of this resolution, so that, from the month following the notification of this judgment, the Tax Administration shall make the corresponding adjustment in accordance with this judgment, in such a way that the tax burden borne by the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner (…)”.

The following year, specifically, by means of the already mentioned judgment 2021-11957, at 17:00 hrs. on May 25, 2021, this Chamber, precisely based on the provisions of the referred Judgment No. 2020-19274, analyzed the provisions of the previously cited articles 236 and 236 bis of Law No. 9544 (Reform to the Organic Law of the Judicial Branch), specifically, the indication contained therein that the sum of the special contribution and the rest of the deductions to be applied to the gross amount of the pension could not exceed 55%, and also upheld its unconstitutionality. The foregoing, according to the following terms:

“XLI. Drafted by Magistrate Araya García. A different answer must be given to the issue that some of the petitioners raise around this same topic, as they point to the constitutional invalidity of the norm contained in the final part of articles 236 and 236 bis of the Organic Law of the Judicial Branch reformed by the Law under discussion, since they – this time – claim that a maximum cap of 55 percent of deductions with respect to the gross retirement amount is regulated, which they consider excessive and harmful to the fundamental right to retirement. On this specific issue, this Chamber had the opportunity to define its position in the recent judgment number 2020-19274 at 16:30 hrs. on October 7, 2020, in which its operative part stated: (…) ‘By majority, the accumulated actions of unconstitutionality are partially granted. Consequently, the contribution percentage and the special contribution established in Laws No. 9380 and No. 9383, both dated July 29, 2016, are annulled, insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with article 91, of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber graduates and dimensions the effect of this resolution, so that, from the month following the notification of this judgment, the Tax Administration shall make the corresponding adjustment in accordance with this judgment, in such a way that the tax burden borne by the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner. (…)’ From the foregoing pronouncement, the majority of the Tribunal concludes that, for Costa Rican Constitutional Law, it is not acceptable that the reduction of gross retirement amounts exceeds a maximum of 50 percent established in said judgment. From the above, it is evident that articles 236 and 236 bis, of the Organic Law of the Judicial Branch, reformed by the challenged Law 9544, are unconstitutional, since both establish 55 percent as the maximum cap for legal deductions, which exceeds by 5 percentage points the maximum established by this Tribunal in the cited judgment (…). Consequently, the final part of articles 236 and 236 bis of the Organic Law of the Judicial Branch, reformed by the challenged Law, must be partially annulled, but only and exclusively regarding those 5 percentage points of excess over the 50 percent set by this Chamber regarding the maximum cap for legal deductions on gross retirement or pension amounts (…)” (The highlighting is not part of the original).

In its operative part, this last judgment stated, regarding what is relevant, the following:

“Therefore (Por Tanto): (…) Regarding the substantive grievances: The accumulated actions of unconstitutionality are partially granted, and consequently, it is ordered: First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez), the percentage of contributions and the special solidarity and redistributive contribution are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber graduates and dimensions the effects of this resolution, so that, from the month following the notification of the judgment, the competent authorities shall make the corresponding adjustment in accordance with this judgment, in such a way that the tax burdens borne by the amount of retirements and pensions do not exceed 50% of the gross amount received by the retiree or pensioner. Magistrate Castillo Víquez provides different reasons. Magistrate Garro Vargas, for her own reasons, grants this part of the action of unconstitutionality, ordering the partial annulment of the provisions in articles 236 and 236 bis of the Organic Law of the Judicial Branch; likewise, she warns that the unconstitutionality declared affects the excesses of the special solidarity contribution regarding that 5% and not the rest of the deductions applied by law to all pensioners and retirees of the Judicial Branch Pension and Retirement Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). Magistrate Hernández Gutiérrez provides additional reasons. Magistrate Rueda Leal and Magistrate Hernández López dissent and deny this part of the claim, just as they did in judgment No. 2020-19274 at 16:30 hrs. on October 7, 2020, inasmuch as, according to the express text of article 67 of ILO C102 of 1952 Convention concerning Social Security (minimum standard), the pension or retirement may be reduced as long as 40% of a reference wage is respected, which is not shown to be automatically and evidently transgressed by the content of the challenged norms (…)”.

Finally, it should be noted that, more recently, by means of judgment number 2024-6250, at 16:30 hrs. on March 6, 2024 – whose operative part was subsequently corrected by interlocutory resolution No. 2024-7056, at 13:37 hrs. on March 13, 2024 –, this Chamber carried out the study of constitutionality of the present Law No. 9796, but referring exclusively to the situation of the retired person of the National Teachers’ Scheme (Régimen del Magisterio Nacional). On this new occasion, also based on the provisions of the previous Judgment No. 2020-19274, this jurisdiction ordered to declare unconstitutional the cited article 5° of that same regulatory body, insofar as it corresponded solely to the pensioners of the National Teachers’ Scheme (Régimen del Magisterio Nacional) – given that this article provided for deductions from the pension of up to 55% –, according to the following terms:

“THEREFORE (POR TANTO): The accumulated actions of unconstitutionality are partially granted. Consequently, the contribution percentage and the special contribution established in article 5 of Law 9796 are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person of the National Teachers’ Scheme (Régimen del Magisterio Nacional). However, in accordance with article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber graduates and dimensions the effect of this resolution, so that, from the month following the notification of this judgment, the Tax Administration shall make the corresponding adjustment in accordance with this judgment, in such a way that the tax burden borne by the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner. Magistrate Castillo Víquez provides different reasons. Magistrate Cruz Castro provides additional reasons. Magistrate Garro Vargas records different reasons. In all other respects, the accumulated actions of unconstitutionality are denied. Magistrate Garro Vargas records a note. Magistrate Rueda Leal dissents and declares the actions inadmissible, because the amparo appeals that served as prior proceedings were filed when the challenged law had not yet been applied to the protected parties; that is, they do not constitute reasonable means for the purposes of these constitutionality control proceedings. Let this pronouncement be communicated to the Legislative and Executive Branches, as well as to the National Teachers’ Pension Board (Junta de Pensiones del Magisterio Nacional). Let this pronouncement be reviewed in the Official Gazette La Gaceta and published in full in the Judicial Bulletin (Boletín Judicial). Notify.” Magistrate Salazar Alvarado records a note (…)”.

In the present matter, as has already been stated, the petitioners challenge precisely that reduction of up to 55% also applied to the amount of pensions, but circumscribed to the situation of retirees of the Judicial Branch, which, as observed, is now established or permitted, based on the provisions, also, in the cited article 5 of Law No. 9796.

Thus, in the opinion of this Tribunal and, in line with what was indicated in the previous precedents, it is feasible to indicate, preliminarily, that the pecuniary obligation to which retirees of the Judicial Branch are subjected – pursuant to the provisions of the cited article 5 of the law under study –, is indeed unconstitutional, insofar as the amount to be deducted exceeds the cited 50%. Thus, what is unconstitutional is that extra 5% established in the norm under examination.

Under that understanding, the proper course, in the first instance, is to annul the contribution percentage and the special contribution established in article 5 of Law No. 9796 insofar as they exceed 50% of the gross amount of the pension corresponding to the person retired from the Judicial Branch scheme, in accordance with the arguments that, on this matter, this Chamber has already upheld in the precedents transcribed above.

X.- REGARDING THE SPECIFIC GRIEVANCES RAISED BY THE PETITIONERS. It is now appropriate, in light of the considerations set forth above and the precedents of this Constitutional Tribunal, to carry out a specific analysis of each of the grievances raised by the petitioners. The foregoing, according to the following order of considerations:

A. Regarding the violation of the rights to retirement and social security. The petitioners indicate that the regulations in question – through which the deduction of a sum as a special solidarity contribution is imposed on the amount of the pension – violate the right to retirement, as it is also a part of the right to social security.

The interested parties argue that, although such rights may be limited, those limitations must be imposed in accordance with the provisions of international instruments. They mention that Law No.

9796 violates the provisions of international instruments that protect the fundamental right to retirement, such as Article 25 of ILO Convention No. 102, numeral 5 of ILO Convention No. 118, Articles 22 and 25 of the Universal Declaration of Human Rights, and Article 16 of the American Declaration of the Rights and Duties of Man, which refer to the protection of benefits or insurance, primarily for old age. They also point out that the provisions of ILO Convention 102 are of special importance, as it seeks the protection of workers as contributors to social security schemes, such as pension funds; in particular, they refer to Article 29, point 1, subsection a), which indicates to whom the benefit established in Article 28 of that same normative body must be guaranteed. Consequently, they consider that the provisions of constitutional Article 7 have been breached, which establishes that public treaties, international conventions, and concordats (duly approved by the Legislative Assembly) have authority superior to laws.

For the purpose of resolving this first grievance raised, it is necessary to recall what was extensively explained by this Chamber in Considerando VIII of this judgment. Based on what is stated there, it is reiterated that the fundamental right to retirement effectively exists, as part of the fundamental right to social security; rights that, in turn, are not only enshrined and protected domestically but also in various international instruments. Likewise, this Chamber has already forcefully explained that this right to a pension and, in particular, the amount for that concept, is not absolute and, on the contrary, may be subject to reasonable limitations or restrictions through the issuance of a formal law. Thus, within that type of limitations is the figure of the special, solidarity-based, and redistributive contribution, which, as was also affirmed, can be validly imposed on the retired sector. This jurisdiction, according to the precedents cited above, has held, therefore, that the special, solidarity-based, and redistributive contribution must be understood as a constitutionally valid limitation on the right to retirement.

Now, the main argument of the plaintiffs is that the regulations in question are contrary to what the aforementioned international instruments provide, and that, from their perspective, an injury to the fundamental right to retirement is produced. However, it should be noted that from a reading of the content of the regulations challenged through this constitutional process, it is not possible to deduce, per se and at first glance, an arbitrary or evident contradiction with the norms contained in the international instruments to which the plaintiffs refer. Nor do the interested parties – it should be highlighted – clearly explain in what way, from their perspective, this alleged clash that would lead to the declaration of unconstitutionality of the norms under study is produced.

Note that Articles 22 and 25 of the Universal Declaration of Human Rights expressly state the following:

"Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." "Article 25. 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection." For its part, Article XVI of the American Declaration of the Rights and Duties of Man states that:

"Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living." Numerals 25 and 29, point 1, subsection a), of Convention 102 of the International Labour Organization – Social Security (Minimum Standards) Convention – (which was ratified by Costa Rica) provide:

"Article 25. Each Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part." "Article 29, point 1, subsection a): 1. The benefit specified in Article 28 shall, in the contingency covered, be secured at least: (a) to a person protected who has accomplished, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 30 years of contribution or employment, or 20 years of residence." Finally, numeral 5 of Convention 118 of the International Labour Organization – Equality of Treatment (Social Security) Convention – (which, it should be clarified, has not been ratified by our country), establishes the following:

"1. In addition to the provisions of Article 4, each Member which has accepted the obligations of this Convention in respect of one or more of the branches of social security referred to in this Article shall guarantee, to its own nationals and to the nationals of any other Member which has accepted the obligations of the Convention in respect of the corresponding branch, when they are resident abroad, the provision of invalidity benefits, old-age benefits, survivors' benefits and death grants, and the provision of pensions in respect of employment injuries and occupational diseases, subject to measures for this purpose being taken where necessary in accordance with Article 8.

2. Nevertheless, in case of residence abroad, the provision of invalidity, old-age and survivors' benefits of the type referred to in Article 2, paragraph 6(a), may be made subject to the participation of the Members concerned in schemes for the maintenance of rights as provided for in Article 7.

3. The provisions of this Article shall not apply to benefits provided under transitional schemes." As can be deduced with crystal clarity, the supra-transcribed norms enshrine the right to old-age benefits (pension or retirement), which does not seem to contradict what is provided regarding the right to retirement, starting from the fact that, as has already been said, the latter can be subject to valid limitations, such as the imposition of a special solidarity contribution. In that sense, it could be validly argued that the retirees of the Judicial Branch are not being left without their old-age benefit – which is precisely the right recognized in such international regulations – but rather, only a reduction to that amount is imposed on them through Law No. 9796, by virtue of the special solidarity contribution – and the consequent reduction of the exempt bases of the pension amounts so that the progressive tables of the solidarity contribution can be applied.

Notwithstanding the above, it is also important to remember that this Chamber, based specifically on the provisions of the cited judgment 2020-19274, of 4:30 p.m. on October 7, 2020, was clear in mentioning that, insofar as – by reason of the special solidarity contribution – deductions exceeding 50% are imposed on the pension amount of retirees, a violation and flagrant breach of the hard core of the right to retirement would indeed be incurred. A conclusion which, as observed, was reached especially based on the provisions of Article 71, paragraph 2, of the cited ILO Convention 102.

In the case under study, as explained in the previous considerando, it is held that Article 5 of Law No. 9796 establishes that deductions of up to 55% can be made from the pension amounts received by retirees of the Judicial Branch, thus contradicting the right to retirement, as part, in turn, of the right to social security, as well as the provisions of the aforementioned international instrument. This same position, regarding the violation of the right to retirement and the right to social security, it should be mentioned, was also held by this jurisdiction just a few months ago, when examining the constitutionality of Law No. 9796 (with respect to the retirees of the National Teachers' Union), through Judgment No. 2024-6250 of 4:30 p.m. on March 6, 2024. On this last occasion, it was held that, indeed, that remaining 5% deducted from the pension of the retirees of that specific regime was injurious to the fundamental rights to social security and retirement.

In addition to the above, it is worth noting that in the aforementioned judgment 2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber also ruled, in light of the provisions of international law, on those old-age benefits referred to by the plaintiffs, and concluded the following:

"XI.- Regarding the international protection of the elderly. In other points of the plaintiffs' briefs, the violation of various human rights instruments is alleged, to maintain that Articles 1, 2, 3, and 4 of Law No. 9383 and the sole article of Law No. 9380 undermine the social security network in favor of the elderly, and produce economic unprotectedness due to an abrupt decrease in income. (…)

But, in another facet of the discussion, it is true that there is an infringement of the Inter-American Convention on Protecting the Human Rights of Older Persons, according to the line that has been followed in this judgment.

"Article 1. Scope of application and object. The object of this Convention is to promote, protect and ensure the recognition and the full enjoyment and exercise, on an equal footing, of all human rights and fundamental freedoms of older persons, in order to contribute to their full inclusion, integration and participation in society. Nothing in this Convention shall be interpreted as a limitation on broader or additional rights or benefits that are recognized by international law or the domestic laws of the States Parties in favor of older persons. Where the exercise of the rights and freedoms referred to in this Convention is not already guaranteed by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights and freedoms. The States Parties may only establish restrictions and limitations on the enjoyment and exercise of the rights established in this Convention through laws enacted for the purpose of preserving the general welfare within a democratic society, to the extent that they do not contradict the purpose and reason for those rights. The provisions of this Convention shall apply to all parts of federal States without any limitations or exceptions." On the other hand, Article 4 of the Convention in question establishes the following:

"Article 4. States Parties undertake to safeguard the human rights and fundamental freedoms of older persons enunciated in this Convention, without discrimination of any kind, and to that end: a) … […] d) They shall adopt the necessary measures and, when they deem it appropriate within the framework of international cooperation, to the maximum extent of available resources and taking into account their degree of development, in order to achieve progressively, and in accordance with domestic legislation, the full effectiveness of economic, social and cultural rights; without prejudice to the obligations that are immediately applicable under international law. […]." Likewise, to link what was transcribed above, it is relevant to the foundation of this judgment that the Convention also establishes that:

"Article 17. Right to social security. Every older person has the right to social security to protect him or her to lead a dignified life. The States Parties shall progressively promote, within available resources, that the older person receive an income for a dignified life through social security systems and other flexible social protection mechanisms. […] Everything provided in this article shall be in accordance with national legislation." From these norms, it is clear that disrespect for ILO Convention No. 102, ratified by Law No. 4736 of March 29, 1971, results in the breach of the right to social security contained in the Inter-American Convention, when the plaintiffs precisely allege that Article 25 of the aforementioned Convention No. 102 establishes that "Each Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part"; to that extent, this Tribunal is recognizing that there is a cap in favor of "employed persons", as explained supra, and deserves the protection established by the Inter-American Convention on the Human Rights of Older Persons. Thus, if the full effectiveness of economic, social, and cultural rights, among which is social security, is guaranteed in this Convention, it could not be argued that the legislator legitimately permits the application of tax levies up to an excess of 5% of the applicable limit, since this is openly regressive for the human rights of the beneficiaries, inherently unconventional, for being contrary to the Inter-American Convention, as well as ILO Convention No. 102. In this sense, one must reach the conclusion that the provisions allowing deduction of more than 50% of the gross pension amount are unreasonable, disproportionate, and unconventional, and this must also be declared on this occasion (…)" (The emphasis is not part of the original).

By virtue of the arguments put forth, the appropriate course is to uphold this aspect of the present unconstitutionality action.

B. Regarding the confiscatory nature of the pension amount. The plaintiffs maintain that the total amount reduced from the pension of Judicial Branch retirees – nearly 70%, reduced to 55% due to the provisions of the challenged regulations – becomes confiscatory and, therefore, unconstitutional, for violating the provisions of constitutional Article 40. They argue that the contribution imposed on this sector is inconceivable and unsustainable. They point out that the principle of non-confiscation constitutes a limit on the exercise of tax power, linked to the principles of contributive capacity and progressivity; in addition to representing a mechanism for protecting the right to private property.

In this regard, it must be noted that this Constitutional Chamber has held that, to the extent that the amounts to be deducted from the pension (including that concerning the solidarity contribution) exceed the already cited 50%, one is indeed facing arbitrary confiscation. Note that in the already mentioned Judgment No. 2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber extensively explained the following:

"X.- Regarding the allegation of non-confiscation raised in the actions. The principle of non-confiscation is not expressly established in the Political Constitution, but must be implicitly derived from the relationship of Articles 18, 45, and 50 of the Magna Carta, as a limit to the State's tax power. The Chamber, in delimiting the principle of non-confiscation, has established its intrinsic relationship with some fundamental rights, but preferentially with the right to property, especially when dealing with material as well as immaterial rights. Thus, by Judgment No. 1993-05749 of 2:33 p.m. on November 9, 1993, this Chamber established:

"The state can take a proportional part of the income generated by the individual to defray its expenses, but provided that it does not go so far as to annul property as such, as would be the case if the tax totally absorbs the income. If the Constitution protects the right of property to the integral patrimony, other provisions cannot be recognized and admitted that destroy it. Thus, to be constitutional, taxes must not denature other fundamental rights. The Constitution ensures the inviolability of private property, as well as its free use and disposition, and prohibits confiscation, so a tax measure that goes beyond what is reasonable and proportionate cannot be permitted. Tax is a means of economic policy, which must be harmonized with public spending and the economic situation, and its limit is the individual's tax capacity. The ordering of taxes must be based on the principles of generality and equitable distribution of public burdens. The application of the principle of equality refers to the proportionality of taxes, requiring unequal quotas to produce equal sacrifices, so that there is relative equality regarding the capacity to pay, that is, the economic capacity of the subject who must pay must be considered. If the Constitution in its Article 45 establishes that property is inviolable, and in its Article 40 that no one shall be subjected to the penalty of confiscation, it is undeniable that the tax cannot be such as to make these guarantees illusory. What we must understand by 'substantial part of the property or income' is something that cannot be established in an absolute manner; the component of discretion or reasonableness must be assessed in each specific case, circumstantially, according to the factual needs, the demands of time and place, and the economic-social purpose of each tax. But it can be established as a principle, that a levy is considered confiscatory if it exceeds the economic or financial capacity of the taxpayer, or if the tax absorbs a substantial part of the taxed operation, and it will be up to the Judge, in each case, to analyze these circumstances, which will, logically, be variable, and the correct approach is to analyze these situations concretely." Similarly, this doctrine is repeated in other judgments of this Chamber, in which it has defined the principle of confiscation; for example, in Judgment No. 1995-554, of 4:45 p.m. on January 31, 1995 – reiterated by the cited Judgment No. 2003-5276, of 2:54 p.m. on June 18, 2003 – among others. From the foregoing, the premise that taxes should not denature other fundamental rights is clear, especially when the Political Constitution establishes the inviolability of private property, as well as its free use and disposition, and the prohibition of confiscation. This last interdiction must be understood as the impossibility of stripping a person, by means of a penalty or disproportionate exaction, of all or an important part of their assets, for violation of a legal duty or through taxes, to transfer them to State property without any compensation. It must be affirmed that it is up to this Chamber to determine, regarding this principle, whether the challenged regulations have confiscatory effects, understanding the foregoing, based on the fact that the tax power is exceeded by levying a portion of the property (or a right) of the taxpayer that would be protected as a fundamental right.

It should be noted that the issue involves an exercise of balancing public powers and fundamental rights, the intensity of the exercise of the tax power over property, as it would have the principle of non-confiscation as a limit. In this sense, progressivity in taxes finds its basis in the need to address the principles of contributive capacity and non-confiscation. What might be confiscatory for some, for another would not be, clearly according to their contributive capacity. Tax justice must have a close link with the principle of reasonableness and proportionality, especially in the matter at hand, where the maxim that we must all contribute to public expenses, but in accordance with the possibilities of each taxpayer, must be fulfilled. While it must rightly be affirmed that the tax obligation should not exhaust the capacity to generate income and property, it is imperative also to reaffirm that taxes cannot absorb a portion of social security benefits, especially when these are covered by international law, even when, as an economic benefit from the State, they have not entered (or should have entered) the individual's patrimony. In this sense, it must be recognized that the payment received by the pensioner is susceptible to being taxed, but there is a limit – as indicated supra – on the amount. Thus, as the plaintiffs affirm based on the principle of non-confiscation, it cannot be allowed that taxes absorb, what they argue is the property of persons, and which the Chamber understands as the economic benefit that was received derived from the right to a pension, and which allows concluding that the money that has effectively entered the individual sphere of the beneficiary would be private property that could not be retroactively reached by the challenged regulations. However, the problem lies in the deduction that, in excess (of at least up to 5%), has been made on the economic benefit that the State should not have made, which by right belongs to the pensioners and retirees, especially if that part has been recognized as their right to the pension. In this, we refer to the 5% more, with respect to all the taxes that the pensioner or retiree must pay.

Now, specifically, the problem of constitutional relevance lies in the fact that with the special, solidarity-based, and redistributive contribution, it is denoted that this is made with staggered deductions made on a gross amount, which then return to the single treasury of the State (according to Article 4 of Law No. 9383, to finance the pension regime and the non-contributory regime of the Caja Costarricense de Seguro Social (C.C.S.S.)). To this is added the contribution percentage of pensioners, retirees, and active employees, which is done according to the norm, gradually and proportionally according to the salary or pension amounts in question (from 9% to 16%), according to paragraph 2 of Article 11 of Law No. 7302, amended by Law No. 9380. And as indicated previously, other taxes are included in these reductions, such as the income tax that levies the gross amount. That is, in those cases where the regulations under analysis apply, it clearly produces the effect of stripping the pensioner of the economic benefit, through an exaction that affects a part of their income (up to at least 5%), through the application of taxes to transfer them to State property without any compensation. This Tribunal recognizes that the impact this has on the economic position of the elderly person, especially from one moment to the next, is not something easy to assimilate, particularly when the accustomed economic income is abruptly precipitated by more than 55%, all of which produces a considerable regression in the economic situation of the elderly person. It has been alleged that these deductions contravene a margin of dignity and adequacy for the elderly person in old age, and that from what was said supra, with the scrutiny of these norms, it must be concluded that by failing to comply with ILO Convention No. 102, it fails in the duty to provide a integral amount of the pension.

There is no doubt for this Tribunal, as has been said earlier, that when the State requires taxpayers to pay taxes, this requirement must meet certain standards. In this sense, as discussed previously, these would be international parameters legally binding for the Costa Rican State, which it cannot ignore or attempt to annul, if there is a superior norm that offers greater protection, especially in favor of the human person. With this provision, the State has first recognized the right to a pension of the plaintiffs according to the legal system it enacts, in which case they have the right to receive an economic benefit as the holder of the right, that is, an amount of the benefit without discrimination as corresponds to them. Likewise, that amount would be subject to certain conditions that the regulatory framework must meet, for which it would be unlawful for the State to deviate from them.

The Chamber understands, from the brief of the plaintiffs Ramos Valverde and Pacheco Salazar, as well as the joint parties Vargas Aguilar and others, that the special contribution itself is challenged, the confiscatory effect on those incomes that diminishes the dignity or adequacy of the economic benefits. On this point, according to official data, it is important to bring up the comparison of economic benefits offered among national regimes, insofar as the pension regime of the Treasury is compared with other regimes, some without and others with a contribution fund. Furthermore, the Ministry of Labor and Social Security, as well as the National Director of Pensions, attempt to demonstrate, based on the table transcribed below, that important differences exist between the non-contributory regime, the basic contributory pension regime (both administered by the Caja Costarricense de Seguro Social), and the pay-as-you-go regime or budget-based pensions, which continues to be even better positioned, comparatively. The foregoing without forgetting that it depends 90% on the National Budget. This is evidenced, in the following manner (visible in the report at folios 3795-3814 of the expediente):

It is observed from the foregoing, that despite establishing a comparison between a basic regime such as that of the Caja Costarricense de Seguro Social, with respect to the pension amount taken as an example, of the plaintiff Ramos Valverde from the Treasury Regime modified by the challenged legislation, the amounts received still show a better economic positioning by more than 2.3 times. However, the authorities compare it with the Regime of the Caja Costarricense de Seguro Social, thus comparing different systems, one where there is a constituted fund, with its respective contribution, investment, and reserve mechanisms, which is not under examination, but evidently, it is not the same as the "pure" pay-as-you-go system based on the National Budget, as the plaintiffs rightly argue and the authorities explain. Although the authorities demonstrate that the economic benefit of the pensioner improves in the Treasury Regime, it is a system that operates without a formally constituted fund, which, compared with that protected under the basic national scheme covered by the Caja Costarricense de Seguro Social and other substitutes, that argument leaves aside an aspect of real relevance, which is the level of salary contributions made into the system for a fund, investment portfolio, as occurs with others, like that of the National Teachers' Union, Judicial Branch, among others, which is not being taken into account.

On the other hand, it is illustrated that within the same Treasury Regime, higher pensions improve the average of those that would not exceed the contributory base of the challenged norm, whose average amount of ₡464,641.20 would still be surpassed by 7.55 times. The comparison uses as referents a universe of pensioners (18,700) below ten reference salaries compared to an individual referent, a comparison that attempts to demonstrate the State's reaction, which must be analyzed in greater depth.

Precisely, a special, supportive and redistributive contribution is designed for pensioners and retirees, to produce a significant reduction of income for a small group of retirees, motivated by a context of significant contraction of the national economy, which required a review of the pension system and the need to cap certain pensions. But the foregoing, it is alleged, affects the customary economic benefit that was being received by pensioners and retirees, and therefore it must be demonstrated that there exists a reasonable and proportionate justification regarding the entirety of the economic benefit intended to be affected, even though this legislation reduces an income above the limits established in the standards to which the country itself committed under Convention No. 102 of the International Labour Organization.

What must be analyzed from the regulation is the reasonableness of the percentages and the effect they have, especially because the value of the pension falls upon the gross amount, which means that various coercive exactions operate on the pension, which would exceed the total permissible costs of levying, and it must be questioned whether a violation of the principle of non-confiscation occurs insofar as it is contrary to the right established in the Convention, as it exceeds 50%. In that sense, it would have to be determined if, in its application, by its consequences or effects, there would be an unconstitutionality in the technical reasonableness and proportionality. The Chamber considers that all of the foregoing produces a significant reduction of that net portion of the benefit, after applying the percentages of the corresponding contributions and the amounts of the contribution they must pay. But, with these other corresponding payments, as this Chamber established supra, all levies considered together cannot exceed 50%, such as taxes, fees, contributions, social security contributions, income taxes, and legal deductions, for this would not only breach the principle of community solidarity, but also the constitutional principles of reasonableness and proportionality; furthermore, as a parameter, it would breach paragraph 2 of Article 71 of Convention No. 102 of the International Labour Organization.

Regarding the requirement to pay more taxes, it must be said that the design of the challenged provisions starts from a fixed parameter composed of ten times the lowest base salary paid in the Public Administration, according to the Public Administration salary scale issued by the General Directorate of Civil Service. That is, there is a tax-exempt minimum quantified by the legislation, which expands as the established base salary decreases. If the gross amount of the pensioner exceeds that sum, the law orders the application of a staggered and progressive levy contained in the provision.

Thus, Article 3 of Law No. 9383 establishes the following:

"a) On the excess of the amount resulting from ten times the lowest base salary paid in the Public Administration, according to the Public Administration salary scale issued by the General Directorate of Civil Service, and up to twenty-five percent (25%) of said sum, they shall contribute twenty-five percent (25%) of such excess.

• b)On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute thirty-five percent (35%) of such excess.
• c)On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty-five percent (55%) of such excess.
• e)On the excess of the previous margin and up to an additional twenty-five percent (25%), they shall contribute sixty-five percent (65%).
• f)On the excess of the previous margin, they shall contribute seventy-five percent (75%)." As can be seen, the norm contemplates a cumulative and progressive contribution where the total levy will depend on the amount of the pension that exceeds the different brackets established by the provision (which would maintain a relationship with the ability to pay). As stated supra, the base parameter for this imposition is established at the amount composed of ten (10) base salaries, subsequently increased by 25%, to finally levy the differences between the pensions that fall within the base parameter and the higher one. In this way, it proceeds in accordance with the gross amount of the respective interested party's pension, and it will depend on whether the sum falls within a bracket or band, and if it exceeds it, it falls into another exaction. Thus, 25%, 35%, 45%, 55%, 65%, and 75% would be applied, respectively, according to each bracket with respect to the differences.

The importance of the previous explanation is because the norm levies an excess of the ten minimum salaries indicated supra, increasing the tax obligation of the levy as the pension amount exceeds the previously defined excess, which means that the higher the amount received, the greater the contributory obligation will be. The problem with the norm has to do with the cumulative and increased effect it has with this and other taxes of a similar nature (that levy gross income), since the challenged norm concludes that in no case may the special, supportive and redistributive contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the totality of the gross pension amount that by right corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the totality of the gross pension amount, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the totality of the gross pension amount." In this way, it establishes a total levy of up to fifty-five percent (55%), which would be exceeding what is permitted in subsection 2) of Article 71 of the Convention of the International Labour Organization, which sets the establishment of pension costs at 50%, with the aid of taxes and contributions from the community considered in its totality, not just from workers and pensioners and retirees. This implies that the tax debtor, in this case, the pensioner, would be contributing even more taxes along with the income tax, which would imply higher costs and deductions in their case, even a greater sacrifice demanded by society.

Based on the foregoing, the majority of this Chamber considers that the action must be granted on this point, as shall be set forth in the operative part of the judgment (...)" (The emphasis does not form part of the original).

For its part, in judgment No. 2021-11957, of 5:00 p.m. on May 25, 2021 -issued, as has been said repeatedly, regarding what is set forth, among others, in Articles 236 and 236 bis of Law No. 9544-, this Chamber, after citing the previous vote No. 2020-19274 (in respect of the claim of confiscation), stated that the burden then imposed on pensioners of the Judicial Branch "(...) is only confiscatory to the extent it exceeds 50% of the burdens a person must bear on their pension or retirement (...)".

Additionally, in the recent Judgment No. 2024-6250 of 4:30 p.m. on March 6, 2024, this Chamber reconfirmed its position on this point in particular and, when referring to the content of Article 5 of Law No. 9796 under study -specifically, with regard to retirees of the National Teachers' Regime-, held that although the very fact of contributing the items in question could not be labeled unconstitutional (given that the higher economic benefits were levied in a staggered manner according to ability to pay), the truth was that, according to the Chamber's precedents, that same contribution had a limit of 50%, and therefore, that remaining 5% did become confiscatory.

Thus, based on what has been analyzed in this unconstitutionality action regarding the specific case of pensioners under the Judicial Branch Regime, this Chamber concludes that the additional 5% percentage with which they must contribute, pursuant to the provisions of Law No. 9796, is certainly confiscatory and, consequently, a violation of their fundamental rights.

C. Regarding the claim of double tax imposition for the same purpose. Coupled with the previous grievance, the plaintiffs argue that the pension amount of Judicial Branch retirees suffers a double levy, which is inappropriate, given that, in addition to the supportive contribution, deductions are applied for other concepts, such as the 13% mandatory contribution to the regime and the income tax. They allege that a double tax rate is applied "on the same benefit." This Chamber, in judgment No. 2021-11957, of 5:00 p.m. on May 25, 2021, settled this disagreement of the plaintiffs, by carrying out an analysis –pursuant to the provisions of Law No. 9544– of Article 236 of the Organic Law of the Judicial Branch, where the deduction from the pension amount of 13% is contemplated, and what is statutes, concomitantly, in Article 236 bis of that same organic law -regarding the deduction for the special supportive contribution. The content and purposes of these norms, in what refers to this point and specific grievance, did not undergo a change upon the issuance of the now challenged Law No. 9796. Hence, the reasoning set forth on that occasion by this Constitutional Chamber can be newly and validly used to resolve this aspect of this unconstitutionality action. On this occasion, this jurisdiction stated the following:

"XLVII. Drafted by Magistrate Hernández López. The special, supportive and redistributive contribution and the claim of double imposition for the same purpose.- The plaintiffs argue that the special, supportive and redistributive contribution created in favor of the Judicial Branch Retirement and Pension Fund implies for the judicial servant, but also for the judicial retiree or pensioner, a double imposition because in addition to being obliged to continue contributing 13% of their income to the fund, they are now also obliged to contribute between 35% and 55%, which they deem unconstitutional. The Attorney General's Office considers that there is no double imposition in this case, because a distinction must be made between the contribution to the fund imposed on all beneficiaries of the Judicial Branch Retirement and Pension Regime, and the so-called special, supportive and redistributive contribution imposed only on retirees and pensioners who receive economic benefits that exceed the established cap of ten times the base salary of the lowest paid position in the Judicial Branch; a contribution that is also proportional and progressive, and has a different nature from that of the contribution, and therefore is not considered contrary to the Political Constitution. (...) For the Tribunal, the figure of the special, supportive and redistributive contribution is not constitutionally configured as a double imposition, because in its original design (prior to the reform operated by Law No. 9796) it serves a separate purpose from that pursued by the general contribution imposed on all beneficiaries of the Judicial Branch Retirement and Pension Regime to achieve its sustainability and normal functioning. Unlike this general contribution, the Tribunal is clear that the cited norm 236 bis sought to levy the sums exceeding the maximum retirement or pension cap to be paid by the regime, set by Article 225 of the Organic Law of the Judicial Branch at 10 times the base salary of the lowest paid position in the Judicial Branch, on the understanding that such excesses arose in a finite and determinable group of retirements and pensions granted according to the rules of the previous regime (whether in the course of payment or those declared but suspended in their enjoyment) and therefore clearly temporary in their application and not supportable with the contribution scheme established for the new design. In this way, the levy constituted in the questioned Article 236 bis to levy the excesses was required, but not to contribute to the support of the normal expenditures budgeted in the new regime, but to avoid the imbalance caused by the legal duty of the Fund to attend to certain expenditures inherited from the previous regime and exorbitant to the new design. Under this criterion, there is therefore no double imposition from the constitutional perspective, because the purpose of the two levies is clearly differentiated, the 13 percent contribution being a permanent burden with the purpose of financially sustaining the fund and ensuring its benefits, while the special and supportive contribution of Article 236 bis is specific and temporary in its own conception (at least before the reform operated by 9796) and was directed at mitigating the economic impact of assuming the burden of the retirements and pensions of the previous regime, both those that are in the course of payment and those already declared at the time, but pending their effective enjoyment by the beneficiaries. (...)

In the case under study, the imposed burden has -according to what has been analyzed- a valid purpose, is directed at levying an indisputable economic capacity, and is progressive in its design. Moreover, it is only confiscatory to the extent it exceeds 50% of the burdens a person must bear on their pension or retirement, as explained supra.

In conclusion, the Tribunal considers that Article 236 bis of the Organic Law of the Judicial Branch does not configure a case of constitutionally prohibited double imposition (...)" (The emphasis does not form part of the original).

The previous state of affairs did not change, in the opinion of this Chamber, with the issuance of Law No. 9796 -and it is understood that the caveats set forth in the transcribed vote regarding the enactment of this latter regulation were issued only in terms of clarification for the reader-; hence, the transcribed precedent is fully applicable to this matter.

In addition to the foregoing, it is worth noting that in the recent judgment No. 2024-6250, of 4:30 p.m. on March 6, 2024, this Chamber also ruled out that, through Law No. 9796 -and its specific imposition, in that case, on pensioners under the National Teachers' Regime-, the supportive contribution represented anything beyond double tax imposition. On this occasion, the Chamber explained that the fact of contributing to the fund, collaborating with the supportive contribution, and, in turn, paying the income tax -which, specifically, is what the plaintiffs point out in this proceeding-, was not, in itself, harmful to the Right under the Constitution, and it was clarified that this triple payment had already been endorsed by this Chamber -judgments 1999-5236 and 2001-2235-. Furthermore, in this recent judgment it was said that those three contributions were not exclusive to the Transitional Pay-as-you-go Regime, since the rest of the special pension regimes had similar burdens, according to their special characteristics and regulatory criteria.

Thus, by ruling out the unconstitutionality, in this instance, of a double or even triple tax imposition to the detriment of Judicial Branch retirees -specifically those whose pension amount exceeds six base salaries of the lowest paid position in said institution-, this aspect of the action deserves to be likewise dismissed.

D. Regarding the alleged breach of the principle of non-retroactivity to the detriment and consequently the principle of legal certainty. The plaintiffs also claim that the provisions of Law No. 9796 violate the acquired rights of all those judicial officials who contributed and were granted pensions under the guidelines issued by the Pension Fund of the Organic Law of the Judicial Branch. Therefore, they affirm that "those rights must continue just as they were granted before the enactment of the law, otherwise, legally granted rights would be violated." They indicate that pensions already granted translate into acquired rights, and that, by imposition of the law, pensioners are being led to lower income levels. They point out that the studies conducted did not indicate that the fixing to be imposed was retroactive, but only prospective. They finally maintain that, from the moment a worker enters the retirement regime, the worker is protected (not only by the legal and regulatory rules and criteria of the regime itself), but also by the constitutional norms and principles that enshrine the right to retirement, such as, for example, what is statutes in Article 34 of the Constitution. In conjunction with the foregoing, the plaintiffs consider that the principle of legal certainty is violated, because the variations imposed by the law breach the trust and security of judicial officials.

Now, regarding this particular grievance, it is timely to point out that this constitutional body has equally already issued an opinion, when referring, as has been said repeatedly in this judgment, to other similar cases to the one now submitted for study. Thus, it is worth noting that in judgment No. 2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber broadly and forcefully explained the reasons why the imposition of the supportive contribution did not properly breach the provisions of Article 34 of the Magna Carta, that is, the principle of non-retroactivity of the law. On that occasion, expressly, it was indicated:

"XIII.- On the claim of non-retroactivity of the reforms. In this sense, it is worth noting that the jurisprudence of the Chamber, in a matter related to the subject at hand, settled the issue without affecting the undoubted power of the legislator to modify or reform the laws. The discussion raised by the plaintiffs precisely lies in which legislative measures can be applied to pensioners and retirees as of the legal reform operated by the challenged norms.

Thus, the Chamber established, in Judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018, that:

"XI.- On the alleged violation of the principle of non-retroactivity. The plaintiff alleges an injury to the principle of non-retroactivity protected in Article 34 of the Political Constitution, because the questioned norms intend to apply their effects -Law No. 7858- to pensions, without distinguishing the date on which they were granted. Now, before entering into an analysis of the merits of said claim, it is appropriate to allude to what has been expressed by this Chamber regarding the subject of the application of the principle of non-retroactivity to pensions. In this regard, in judgments numbers 2379-96 of 11:06 a.m. on May 17, 1996, and 2765-97 of 3:03 p.m. on May 20, 1997, cited above, it was established, in what is relevant, the following:

"XI.- ON THE VIOLATION OF THE PRINCIPLE OF NON-RETROACTIVITY. The relationship between the fundamental right to retirement and Article 34 of the Constitution has been delineated by the Chamber, which has expressed that the former takes on different appearances and names depending on whether the official meets certain conditions, which normally occur over time. Thus, the retirement right first manifests itself under the name and form of 'right of membership in the regime' from the official's entry into the system and until the event consisting of the fulfillment of the necessary requirements for obtaining the benefit occurs. Then, it sheds that guise to be called 'right to the current benefit', once that indicated eventuality has occurred (see resolution 1147-90 of twelve o'clock on September twenty-first, nineteen ninety). With the foregoing, two things are meant to be emphasized: a) that during all the time, the fundamental right to retirement is and has always been one and the same, and does not change in its essential characteristics, which remain as an integral part of its composition despite the different modalities it may present externally; b) that it is that core, without the accidents that are added to it at the moment of its concretion and called simply the constitutional right to retirement, that the Chamber recognizes as an acquired right of the plaintiff. Now then, if, as set forth in the second whereas clause of this judgment, we accept that one of the essential characteristics of the retirement right is that it can be limited or conditioned in the terms explained there, it can be concluded that the inclusion of the retirement right in the collection of acquired rights of the plaintiff also included -by way of a legal possibility- the faculty for the exercise of limitations or conditions on said right, because such a faculty to be exercised by the State forms a proper part of its structure and composition. In other terms, the fact that the plaintiff is recognized, as an acquired right from their entry into the regime, the right to retirement, cannot imply a disappearance of the attributes and conditions that form an intrinsic part of it -including of course those that may be restrictive for the beneficiary- so that all those characteristics survive as an indeterminate set of presumed or implicit clauses, which are embedded within any regime or system of concretion of the retirement right and which, for that very reason, are potentially applicable to the plaintiff at any time and while they belong to the regime. And they could not take refuge in Article 34 of the Political Constitution to oppose its application, given that it is not a new regulation but the effective exercise of an implicit faculty of variation existing from the moment of entry into the regime." "In both cases (acquired right or consolidated legal situation), the legal system protects -rendering it intangible- the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of subtracting the already acquired good or right from the person's patrimony, or of causing that if the factual assumption had occurred prior to the legal reform, the consequence (profitable, it is understood) that the interested party expected from the consolidated legal situation no longer arises. Now then, specifically regarding the latter, it has also been understood that no one has a 'right to the immutability of the legal system', that is, that the rules never change. Therefore, the constitutional precept does not consist in that, once born to legal life, the rule connecting the fact with the effect cannot be modified or even suppressed by a subsequent norm; what it means is that -as explained- if the conditioning assumption has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the empire of the previous norm from arising. This is so because, it was said, what is relevant is that the state of things the person enjoyed was already defined in its elements and its effects, even though these are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule.

Application to the specific case. In the sub examine, it is viable to exemplify the previous concepts based, precisely, on the elements of the specific case. Under the empire of Articles 167 to 169 of the Civil Service Statute, there existed a legal rule, created by the legislator: in the presence of a disabling illness (conditioning fact), the male or female teacher suffering it would have the right to a leave of absence and to the payment of an aid equivalent to the total salary, for the entire period of the disability -which could be even indefinite- although subject to annual revalidations, upon medical proof (conditioned effect). This rule disappeared by virtue of the repeal of those norms carried out by Law No. 7531, which also ordered that, within the non-extendable period of six months from its effective date, the beneficiaries of the leaves must opt for a disability pension or return to work. Then, exemplifying -and, at the same time, applying- the elements of judgment set forth supra, it can be said that:

The protection of acquired rights means, in this case, that notwithstanding the elimination of the norms, all amounts received until then for the concept of aid must be considered irrecoverable. To the extent that they had definitively entered the patrimony of the interested parties prior to the legal reform, it would be absurd -and unconstitutional- to pretend that they must be returned, or something similar. And, (sic)

The protection of consolidated legal situations implies that, although the interested parties could not pretend that the norms in question (and, with them, the rule they created) could never again be the object of reform or even, as occurred, of repeal, they did have the right to expect that, regarding themselves and all other persons who were subject to the same state of things, the consequence they anticipated would be produced or be produced. That state of things was characterized by the rule that causally connected their factual situation (disabling illness) with the effect provided for in the law (the enjoyment, for up to an indefinite period, of a leave of absence and the payment of the corresponding pecuniary aid). The fact that the rule has disappeared -something the legislator has undoubted power to do- cannot have the virtue of producing that for them the consequence to which they were already entitled no longer arises. This could only occur, ex nunc, for those who, at the date of the legal reform, had not acquired that right." Adopting as a frame of reference the provisions of the cited precedents, the Chamber considers that the questioned regulation is not per se contrary to the principle of non-retroactivity, because it is clear that the legislator has the power to vary the conditions or requirements under which a retirement is granted -the person has not yet consolidated the right-, when they deem it necessary to guarantee the financial sustainability of a certain regime, or when there is a difference between the income received and the payment of current retirements, in protection of the principles governing Social Security, a kind, in this latter case, of a contingency cap.

However, and without prejudice to what was expressed above, it is appropriate to clarify that it would be a violation of Article 34 of the Constitution to attempt to apply the effects of the law to the factual assumptions, conditions, or requirements for obtaining retirements or pensions, to those persons who had already obtained that benefit prior to its entry into force, except in an extraordinary case, as expressed supra. This, because as established in the mentioned votes, the retiree has the right to have respected the conditions and rules under which they obtained their pension, that is, that the conditions that the law provided for them at the time their legal situation was consolidated be maintained. It is necessary to clarify that the monthly amount of the retirements or pension in course that the person receives is not an element that cannot be affected, because the legislator, in exercise of the tax power, can levy them, as has been done recently, an aspect on which this Tribunal does not issue any pronouncement, since it will be in the unconstitutionality actions that have been filed on this and other aspects –see judicial file 2017-001676- where a position will be fixed on the scope and limits of the tax power in this matter.

By reason of what was set forth in the preceding lines, this Chamber considers that it is necessary to make an interpretation in conformity with Law No. 7858, in the sense that it is not a violation of the principle of non-retroactivity, provided it is interpreted that its effects are only applicable to those persons who acquired the retirement right after December 28, 1998, the date on which the cited norm entered into force, after it was published in the official newspaper La Gaceta No. 251, for the elementary reason that those who acquired the right to retirement after that date must be applied the rule in force, that is, the maximum cap when the condition established by law is met, which has been duly accredited by National Accounting." It is clarified that this Court considers it necessary to dimension the judgment in the sense that this interpretation will take effect from its full publication in the Boletín Judicial, such that in the event that the Public Administration and the ordinary courts (sic) were to conclude that the challenged norm, the directive, and the resolution are in force, the cap will be applied prospectively and not retroactively, meaning the Administration could not collect any sum that retirees and pensioners received prior to the day of said publication.” To elucidate the constitutional relevance problem before us, it is essential to define the legal effects the reforms would have: that is, whether they are ex tunc or ex nunc. Although the plaintiffs, throughout the petitions filing the actions, claim the right to the intangibility of assets (which has been addressed in this judgment previously), understood by them as the impossibility of modifying the amounts of the pensions they receive in the present and future, consequently claiming that the monthly benefit of the retirements or pensions cannot be modified, in this Chamber’s view, this is not possible, in light of the doctrine of Article 34 of the Constitution, and the jurisprudential interpretation of this Court (except in the case of improvement). The Chamber’s jurisprudence moves in the opposite direction from the plaintiffs, reaffirming that the legislature can modify or reform legislative provisions, which poses a problem of effects or consequences of the norms for their recipients, within the respective coordinates of time and space. As is characteristic of any regulation that meets material and substantial formalities, they govern from the day they designate, or failing that, ten days after their publication in La Gaceta (Article 129 of the Constitution). Therefore, the claim to maintain the validity of the abolished right is not always receivable, because the Chamber’s jurisprudence affirms that the protection against the retroactivity of norms “does not consist in that the rule of law, once in force, connecting the fact with the effect cannot be modified or even suppressed by a later norm (as that would be accepting the immutability of law); what it means is that the conditioning event has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the previous norm from arising […] what is relevant is that the state of affairs the person enjoyed was already defined in terms of its elements and its effects, even if these are still being produced or have not even begun to be produced. In this way, what the person is entitled to is the consequence, not the rule.” Thus, what one is entitled to are the consequences, and not the norm, especially if it is repealed or modified.

Thus, there is no possibility of claiming the immutability of law, which operates, in the case of pensions, if it finds those foundations in technical-actuarial criteria, in the need to establish sound financial equilibrium, even, as affirmed in the precedent cited above that examined the constitutionality of Law No. 7858 (Judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018), in which this Chamber established—as obiter dictum—that the monthly amounts could indeed be affected through the State’s taxing power. In this sense, throughout this judgment, it has been established that it is indeed possible for the legislature to do so. However, a norm could not be issued that would revoke the pension benefit despite it having been obtained in compliance with the formal and material rules of the pension regime (especially due to the contributions paid and received into a pension fund), or that would condition the benefit, aggravating it with requirements that would make it unenforceable for the older adult despite having been legitimately obtained. Even in cases prior to obtaining it through consolidated membership in the regime, there must be room for a degree of protection, in accordance with the principle of legitimate trust or legitimate expectations, which is recognized when there are previously established, sustained legal relationships, and for these to be modified, they cannot be arbitrary or abusive; it must be possible to act under the shadow of the previous legislation. There must be some predictability, which would be protected by the principle of legality, and constancy and good governance must be guaranteed. But, in the Chamber’s view, the protection against the retroactivity of norms would not include the State’s power to exercise its taxing power and demand exactions in favor of the State, prospectively, always within the limits given by tax principles (among them principles of legality and hierarchy of norms), as well as reasonableness and proportionality, non-confiscation, and the ability to pay.

On the other hand, it must be remembered that the right to a pension is not an absolute right; it yields when it is necessary to impose restrictions and limitations, especially based on the general and solidarity interest, through formal and material law. The problem lies in how much that impact is, especially if it is downward or implies a reduction of guarantees contained in international legislation that entails a confiscatory levy, affecting other associated fundamental rights such as economic and social rights. It is, however, a possibility with which many of the informants whom this Chamber has consulted over the years agree: that the amount of pensions can be modified for improvement, or be restricted through caps or solidarity contributions. It is also possible to tax this income, which for the reasons argued by the plaintiffs, cannot be considered unconstitutional, except for the limits established internationally, as analyzed herein. If the effects are prospective, it cannot be branded as unconstitutional, unless the legislation authorizes the State to tax past income, in which case it becomes a problem of constitutional relevance for contradicting the guarantee of non-retroactivity of norms. Thus, it can be affirmed that the legislation would not be designed to modify acquired rights and consolidated legal situations, nor the doctrine of the survival of abolished law, for it is evident that there could be a problem of administrative application of the norms, in which those conditions recognized to the pensioners and retirees must be respected, for those pensioners and retirees who acquired the right to the pension as established by the regulations and jurisprudence of this Court. The foregoing, without prejudice, of course, to the obligation to pay taxes in accordance with Article 18 of the Constitution. This understood in accordance with the recent jurisprudence transcribed.

Furthermore, it must be noted that nothing in the State’s tax power norms allows understanding that they must reinstate—retroactively—sums overpaid, when these were legitimately determined based on the regulations in force. In this sense, the benefit is affected only prospectively, but not regarding the derivative problem of the reduction of the amount, which has been determined as partially legitimate in this judgment, and it is taken into consideration that the limit or cap applied is part of the need to establish equilibrium in the special pension regime through the special contribution, which is a tax.

Another of the plaintiffs’ allegations relates to acquired rights or consolidated legal situations from the perspective of Convention No. 102 of the International Labour Organization. In this sense, they consider that it would be illegitimate, from the point of view of this regulation, for them to be burdened again with fiscal charges, parafiscal charges, contributions to the fund, solidarity contributions, among others, which imply as a final result that the gross amount of the current pension is reduced by 55%. In particular, the Procuraduría General de la República maintains that Articles 65.3 and 67.a of the Convention establish that this may be prescribed by national legislation, or in accordance with Article 1.1 of the mentioned text, establishing a maximum of its amount, while respecting the minimum established in the Convention. In the case of old-age benefits, it would be 40% of the total wage of an ordinary unskilled worker (Articles 65, 66, and 67 of the Convention).

However, it is this Court’s view that this involves—again—problems of coordinates in time and space, and why not say so, that it would give the State room to assume extreme positions. Both the Procuraduría General de la República’s justification, as accepted by the minority of the Chamber, and what the majority of this Chamber understands, would be based on different norms of the Convention that justify the limits differently, because they venture into problems of different orders: the first, that of the minimum level of the benefit that the respective social security system can set, which can be exceeded by the State when the beneficiary or insured person meets the formal and material requirements set in national law. The second, the State’s obligation to ensure and take measures of good governance in the social security regimes, so that it would be obliged to comply with the principles of financial solidarity and the principle of State responsibility, for the sake of the financial equilibrium of the pension regimes (Art. 71 of Convention No. 102 of the International Labour Organization). Although both normative justifications can impact the level of the benefit, they are not entirely assimilable problems, given that the extension and implication of the measures impact the lives of pensioners differently. It is not the same to authorize a benefit deduction of up to 40% (as suggested) for amounts in the course of payment, as it is to apply measures related to the financial equilibrium of a particular regime, which is what is essentially being discussed and which must be applied in good faith by the Costa Rican State vis-à-vis an international treaty, when applying a total of insurance contributions payable by the insured persons that cannot exceed 50% of the total resources allocated for their protection. The foregoing, because forms of protection must be established based on the principle of legitimate trust, principles of reasonableness and proportionality, as well as the expectations of rights legitimately formed over years of contributions, because a considerable regression in economic, social, and cultural rights would be caused. Certainly, it is not the same to be initiating in a regime and acquire membership in the pension system, as it is to approach the consolidation of the right, or to have met the formal and material requirements for the formation of the right, in which case, a rationality must be established in the handling of these situations, in justice and equity, especially if belonging to pension funds. This contrasts with the general obligation to pay taxes and the tax principles of economic or contributory capacity and tax progressivity, authorized by the conventional norm.

Convention No. 102 of the International Labour Organization establishes minimum levels of benefits for social security regimes, among which it is indicated that they may not be less than the prescribed portions of the ordinary current wage paid for simple unskilled work, adding some other rules, such as minimum periods; but it is clear that these types of rules should not be interpreted as a license authorizing the regressivity of human rights, considered from an economic, social, and cultural approach, since for their effective exercise, they require the implementation of legal and economic mechanisms provided by the State. In this sense, the Committee on Economic, Social and Cultural Rights of the United Nations rightly establishes the primacy of law and policy regarding these rights, where the lack of resources cannot serve as a pretext for their non-compliance. That would leave open the possibility for the State to modify certain benefit-related rights unrestrictedly, when it is not lawful for it to leave them in force artificially or in a barely sterile exercise, because by affecting one, others are disturbed, especially when it concerns economic income, to recognize with clear clarity that the regressive measure impacts many other fundamental rights. It must not be forgotten that these rights must have a certain level of exercise (effective and economic), for they enjoy the character of universal, indivisible, and interdependent, as well as interrelated.

Article 2.1 of the International Covenant on Economic, Social and Cultural Rights, to which our country is a party, establishes that:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” It is evident that this numeral implies the international obligation of States not to step backwards from certain levels of enjoyment of rights already placed at the service of their citizens; in such cases, it is understood that one should not reach such marked extremes as reducing a pension to 40% of the gross amount, or 45% of that item, which to a large extent means disturbing and offending the principles, values, and rights contained in Constitutional Law.

Article 67.c of Convention No. 102 of the International Labour Organization establishes that:

“In respect of any periodical payment to which this Article applies:

(a) the rate of the benefit shall be determined according to a prescribed scale or according to a scale fixed by the competent public authorities in conformity with prescribed rules; (b) the rate of the benefit may be reduced only to the extent by which the other means of the family of the beneficiary exceed prescribed substantial amounts or substantial amounts fixed by the competent public authorities in conformity with prescribed rules; (c) the total of the benefit and the other means of the family, after deduction of the substantial amounts referred to in subparagraph (b) above, shall be sufficient to maintain the family in health and decency, and shall not be less than the rate of benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of benefits paid under the Part concerned exceeds by at least 30 per cent the total amount of benefits which would be obtained by applying the provisions of Article 66 and the following provisions…” Subparagraph c) of Article 67 of Convention No. 102 permits moderating an application—so extreme—of rules that assign a reduced benefit to the minimum to all workers equally, although the prohibition against reducing this income (subparagraph b), conditioned on it being above certain parameters established in national legislation, must also be taken into account, thereby relating it to higher incomes. And regarding d) insofar as it incorporates a comparative global evaluation criterion to determine sufficiency with the indicated percentage regarding a uniform benefit or the minimum (of Article 66). That is, the regulation always refers to the possibility of improving the benefit according to the beneficiary’s circumstances. The fact is that subparagraph c) of Article 67 of Convention No. 102, cited, refers to one of the essential elements of economic, social, and cultural rights: that the benefits the State agrees to, in accordance with subparagraph a) of numeral 67, already cited, must be provided to ensure the beneficiary a degree of dignity, adequacy, and maintain a relationship that ensures people a decent life and economic level (health and decency). It cannot, with this—even though Convention No. 102 apparently permits it—detract all importance and fail to take into account the contributions, payments, and even the life of the pensioner and retiree. In the Chamber’s view, the context of past contributions and payments, as well as present and future ones, in the economic, professional, and occupational spheres, is relevant, because only these factors would allow justifying a pension at such low levels that would unbalance the contributions referenced to the amount of the pension, as well as the beneficiary’s own life. It is clear that disregarding those conditions would reveal a contempt in which the majority of this Court cannot participate, as it strikes at conscience, justice, and equity—values that must be present in all State conduct.

Article 9 of the Protocol of San Salvador establishes that:

“1. Everyone shall have the right to social security protecting him from the consequences of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decent existence. In the event of the death of a beneficiary, social security benefits shall be applied to his dependents” (highlighting not in original).

Likewise, it is important to mention some other norms of interest, such as numerals 3.j) and 45.b) of the Charter of the Organization of American States, the latter of which establishes that:

“Work is a right and a social duty; it is not an article of commerce; it requires respect for the freedom of association and the dignity of the worker; and it is to be performed under conditions that ensure life, health, and a decent standard of living for the worker and his family, both during his working years and in his old age, or when any circumstance deprives him of the possibility of working” (highlighting not in original).

And Article 25 of the Universal Declaration of Human Rights, which reads:

“1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” (highlighting not in original).

In this sense, it must be taken into account that there is a formally pre-established and sustained legal relationship throughout decades (both before and after the pension), which, if varied, cannot be done using the State’s power of command in extremis, without exercising the principles of reasonableness and proportionality, taking into account the dignity of the older adult, and the need for adequacy of all economic, social, and cultural rights of older adults. In the case at hand, the plaintiffs have met the formal and material conditions for obtaining a pension or retirement, conditions that have been formally recognized by the State and have been the basis for them having obtained the corresponding economic benefits. It is equally significant that some have been set, for the most part, a long time ago, as is the case with the plaintiffs. In the majority’s view, it is contrary to the doctrine of the protective principles of human rights to consider that the economic benefit of pensions can simply be modified up to 40% of the gross amount, because it produces a significant problem of constitutional and conventional relevance, which would be injurious to the principles of the prohibition of arbitrariness and the legitimate trust of the State, among others. It must be considered that the same International Labour Conference, 76th Session 1989, entitled “Social Security Protection in Old Age, General Survey by the Committee of Experts on the Application of Conventions and Recommendations”, cited by the minority, astutely clarifies that:

“139. It is worth recalling that the provisions of the instruments under consideration do not purport to impose on States a particular method for calculating the amount of the benefits provided for by national legislation; States remain free to adopt their own rules and methods of calculation to fix the amount of the benefits paid within the framework of their national systems, subject to the result of their calculations satisfying the requirements laid down by the instruments as to the level of benefits. The three formulas invoked, as well as the parameters they use, such as the “wage of a skilled male worker” and the “wage of an ordinary adult unskilled male worker”, have been established solely for the purpose of comparing national situations and the requirements of the Conventions. Consequently, and contrary to what some governments appear to believe, any State for which these Conventions are in force may use one or another of these formulas for international comparison purposes, without thereby having to introduce them into its national legislation or practice.” In addition to the foregoing, it is worth noting the progress of international human rights law related to the Inter-American Convention on Protecting the Human Rights of Older Persons. It could not be maintained that the legislature can require a reduction of pensions to such a degree (40%) for the financing of benefits, because that obligation would be regulated in Article 71 of Convention 102 of the International Labour Organization, which would surely compromise other international obligations, such as the observance in good faith of international obligations, especially regarding human rights, and with which economic benefits are linked to other fundamental rights, such as the adequacy of the pensioner and retiree regarding their housing, food, clothing, health, and others equally important.

Article 71 of Convention No. 102 of the International Labour Organization regulates how countries can approach the financing of social security benefits, including pensions and retirements. All of this can be done with material tax principles, because it is done in accordance with progressivity in tax matters and the contributory capacity of the pensioner, within the limits established by said norm of the Convention. According to national practices, different systems are used, whether through tripartite contributions with contributions from the State, employer, and wage-earner, as in Costa Rica, or the employer and the State, or the insured and the employers; evidently, it is a matter developed according to national realities. But it is evident, from the placement of that provision in the treaty, that it contains common norms related to how national legislation should address the financing contributions for the social security covered by the Convention, which would clearly bind the State in the way it may require that financing from wage-earners. The truth is that a system requiring, for example, only the insured persons to finance these social security systems would conflict with paragraphs 1) and 2) of Article 71 of Convention No. 102. Additionally, if it must be required that the pensioner or retiree assume certain direct and indirect costs associated with the economic benefit received for the right to a pension or retirement, this Constitutional Court must prefer only that provision which least harms the benefit-related rights and all other rights associated with them. It is worth noting that this argument is illustrated by the Inter-American Convention on Protecting the Human Rights of Older Persons, which precisely elevates older adults to a special category of international protection, to which the country must adhere before the Concert of Nations. For all these reasons, in light of the challenged laws, when the amount of the deduction on the pension amount exceeds more than 50%, its unconstitutionality is due to the excessiveness of that application, according to the reasons explained supra.

It is clear that there cannot be an interpretation to the detriment of wage-earners, workers, pensioners, and retirees either, especially for those whom Convention No. 102 of the I.L.O. classifies as the most modest, as well as those with intermediate amounts not subject to the State’s taxing power discussed in this judgment, because those who are starting are not in the same situation as those who have contributed considerably, nor as those who already enjoy the right, in which case, concluding as suggested by the Procuraduría that pension benefits can be reduced up to 40% of the total wage of an ordinary unskilled worker would be a problem of considerable constitutional and conventional relevance for these benefits. Even for those who would be closer to the pension, the need to consider forms of protection could be affirmed. Hence, there would be no doubt that such drastic legislative measures as those should be justified by duly supported actuarial studies, meriting strict scrutiny by the Constitutional Chamber. But, even more so, reducing the benefit to such a degree would be out of the question in the case of current pensioners and retirees, given that there is a special norm restricting the State’s taxing power; and, even admitting doubt, the most favorable norm should be applied, in accordance with the protective principles of Human Rights (paragraph 2 of Article 71 of Convention No. 102 of the International Labour Organization). In any case, it must be concluded, however, that fulfilling the foregoing, higher economic benefits remain susceptible to being taxed, according to their contributory capacity, but up to the limit of 50% of the gross amount of the pension, as indicated supra (…)” (Highlighting not part of the original).

In Judgment No. 2021-11957, of 5:00 p.m. on May 25, 2021, this constitutional body had the opportunity to rule again on this point, when the plaintiffs also alleged that the reform made to numerals 236 and 236 bis of the Ley Orgánica del Poder Judicial through Law No. 9544, and the deductions that would henceforth be made from the gross amount of the pension of the pensioners of this Branch of the Republic—including that concerning the special and solidarity contribution—represented a violation of constitutional ordinal 34. This precise point of the action was dismissed by the Chamber, under the following order of considerations:

“LII.- As drafted by Magistrate Hernández López. Regarding the acquired rights and consolidated legal situations of judicial retirees and pensioners in relation to the special, solidarity, and redistributive contribution. Some plaintiffs allege that there is also, in the special, solidarity, and redistributive contribution, an infringement of Article 34 of the Political Constitution. They affirm that, in accordance with the analysis of the constituent process, acquired property rights or consolidated legal situations, by virtue of the application of a law in force, cannot be violated by a later law because the consolidated legal situation has become included within the person’s assets and touching it is to breach the also constitutional principle of the intangibility of assets enshrined in Article 45 of the Political Constitution. In view of the foregoing, they allege that it is precisely that constitutional prohibition that has been breached in Law No. 9544 because its norms affect consolidated legal situations, to the detriment of the retirees and pensioners of the Judicial Branch, their acquired property rights (pensions and retirements in the course of payment or previously declared) and consolidated legal situations in the form of pension and retirement benefits with constitutional protection under Articles 73 and 74. Another sector of plaintiffs affirm that acquired rights and consolidated legal situations are also violated for those active servants who, for many years, have been contributing to the Régimen de Jubilaciones y Pensiones del Poder Judicial and now, when they were closest to retiring, the rules of the game are changed abruptly, to the extreme that, to obtain the right to retirement, they will now have to work many more years, reach an older age, and in exchange receive a smaller retirement benefit.

The petitioners also state that the introduction of this new item to be deducted from the pensions and retirement benefits of judicial employees implies a novel change in conditions that causes, according to them, a considerable reduction in the net amount to be received by the beneficiaries, without taking into account that these are persons in a condition of vulnerability. (…)

LIV. Judge Hernández López continues writing. In light of the petitioners' argument, the Chamber considers that no weighty legal criteria have been provided that would make it necessary to reconsider its extensive case law in which it has upheld the non-existence of an infringement of Article 34 of the Constitution with the establishment of special contributions such as the one created in Law Number 9544. As the Office of the Attorney General correctly maintains, Law 9544 is not eliminating the right to retirement or to a pension for persons who have already been granted it and who are enjoying it, and in accordance with the settled case law, it also cannot be said that these persons have an acquired right to the specific amount of the retirement benefit they are receiving. On this point, the Court has been conclusive in finding that there is no right to a benefit derived from the right to a pension being for a specific amount (see in this regard the recent judgment 2020-19274 mentioned above). Nor is it a matter of the regulatory rules of the retirement system being petrified, because the Chamber has also admitted that it is valid for the necessary modifications to adjust the system to be made, as needed and always in compliance with respect for fundamental rights. As matters stand, it is not considered that the mere fact that the obligation to pay a special, solidarity-based, and redistributive contribution in this case has been decreed is harming any acquired right of the retirees or pensioners in the terms they allege. Nor are the legal situations of persons for whom the right has not yet been declared harmed, since it must be remembered that the so-called right of belonging (derecho de pertenencia) that this Court has identified in its case law creates in favor of contributors a mere expectation of obtaining the right to retirement, as they have not generated consolidated situations or acquired rights at the time the new law comes into force, so the law then regulates that situation in the state in which it finds itself, it being clear then that the rule (Art. 34 of the Constitution) refers to subjective legal situations already consolidated, but not to those that constitute mere expectations, since these, the right not having been perfected, are indisputably subject to future regulations that the law may introduce. Consequently, with respect to this point, the action is declared without merit (…)” (The highlighting is not part of the original).

For its part, in Judgment No. 2024-6250, of 4:30 p.m. on March 6, 2024, this Chamber, based on the provisions of Law No. 9796 and its particular application to retirees of the National Teachers' system (Magisterio Nacional), ruled out the commission of an infringement of the principles of non-retroactivity and legal certainty. This time, the Chamber reiterated that the figure of the special solidarity contribution was not unconstitutional, nor was the establishment of such payments that pensioners with higher amounts that impact the public treasury had to assume, provided it was understood that these deductions would be made prospectively and not to the detriment of amounts already received (with the exception of those situations that had to be subjected to a lesivity proceeding (proceso de lesividad)). In that same line of reasoning, on this occasion, this jurisdiction –referring, in turn, to the provisions of Judgment No. 1999-5236– indicated that pensioners were not being obligated to make contributions on moneys already received as pension payments and that, prospectively, the rules were diverse, such that the contribution amount –which sought to compensate for past imbalances and guarantee the survival of the system– in no way affected acquired rights.

In addition to the foregoing, in this Judgment No. 2024-6250, the Chamber was clear in pointing out that nothing opposes, within the constitutional framework, the legislature introducing reforms to the social security system and regulating or modifying, prospectively, the normative elements that legal operators must take into account to recognize the pension amount in the basic substitute systems for the Disability, Old Age, and Death system. It was affirmed, then, that the legislature has a margin of discretion that allows it to validly introduce the reforms that, according to economic needs, social conveniences, and the evolution of the times, it deems necessary and pertinent to ultimately guarantee the right to a pension. In other words, on this occasion, the Chamber maintained that, alongside the right to retirement, there was also the power of the State to regulate the necessary conditions in order to guarantee the permanence and payment of said benefits, but also long-term fiscal sustainability without harming the national community; none of which, in any way, could be construed as a violation of the principle of non-retroactivity to the detriment or the principle of legal certainty.

As can be clearly observed, the Chamber has been of the opinion that the imposition of the contributions under analysis on retirees, whether from the Judicial Branch or other systems, does not result in a breach of Article 34 of the Magna Carta, given that, although a right to a pension exists, one cannot concomitantly speak of a right to a fixed amount thereof, which may be subject to limitations and restrictions prospectively –such as those examined in this proceeding–, provided that its essential content is respected and amounts already received are not affected. Under that perspective, and as there are no sufficient reasons to change the criterion established by the Chamber in its case law for this type of issue, the appropriate course is to dismiss this part of the action.

E. Regarding the alleged violation of the principle of equality. The petitioners state that Judicial Branch officials contribute 13.5% of their salary for their pension, while the rest of the population contributes 3.8%, and "retirees continue with a similar and equally disparate contribution compared to the rest of the pension systems." They maintain that the Judicial Branch pension system is self-sufficient and, therefore, finds itself in an unequal situation compared to the other pension systems. They state that the reform specifically affects one group (Judicial Branch retirees) over any other pension system, since the former have their pension amount progressively and rapidly reduced by virtue of the special contributions and other deductions applied to them (CCSS insurance, taxes). They explain that equal legal treatment must be given to those who find themselves in the same legal position or category and indicate that "those placed in different positions, situations, or categories must receive different legal treatment." From the above, they state, it follows that not all legal treatment must be uniform, since, on the contrary, there may be reasons that justify the legal system differentiating in the treatment of persons, whether natural or legal persons.

Additionally, they expound that there are two elements to determine whether or not the principle of equality has been violated, first: the comparison parameter that allows establishing that between two or more persons there is an identical situation and that, therefore, discriminatory treatment devoid of any objective and reasonable justification occurs, and second: the reasonableness of the differentiation, "which establishes the principle of reasonableness (principio de razonabilidad) as a parameter of constitutionality." They refer to the principle of constitutional supremacy and the sub-principle of reasonableness. They state that, following that principle, the laws must conform to the constitutional meaning formed by the motives considered by the constituent power, by the proposed ends, by the fundamental legal values, and by the means provided for. Thus, then, when the jurist locates a rule that does not conform to constitutional principles, it is clear that they must make a judgment on its reasonableness in order to determine its irregularity or not with the Magna Carta in accordance with the demands of the principle of constitutional supremacy. They allege that, being clear that the principle of reasonableness has constitutional rank and cannot be exempt from analysis in every State decision or formation of law, it must be understood, then, that Law No. 9796 flagrantly, directly, and grossly attacks said principle.

They maintain that the relationship between the principle of reasonableness and the principle of equality poses as an essential problem the discernment of a normative decision and how this would allow unequal treatment to be reasonable. They indicate that the basis of the questioned law is inconsistent and disproportionately burdensome for the sector of judicial retirees.

They also mention that, for a differentiation to be constitutionally legitimate, it is not enough that the purpose pursued by it is legitimate, but it is essential, in addition, that the legal consequences resulting from such distinction be adequate and proportionate to said purpose, such that the relationship between the measure adopted, the result produced, and the purpose intended by the legislature surpasses the proportionality test in the constitutional venue, avoiding especially burdensome or excessive results. They maintain that, precisely, the differentiation measure contained in the law is burdensome and excessive, given that the subjects included in it are considerably dissimilar; hence the effects are disproportionate in the strict sense and contrary to the Political Constitution.

For the purposes of resolving this part of the action, it is necessary to begin by clarifying that, on repeated occasions, this Constitutional Chamber has indicated that the content of the principle of equality established in Article 33 of the Political Constitution prohibits making differences between two or more persons who find themselves in the same legal situation or in identical conditions, without equal treatment being claimable when the conditions or circumstances are unequal. Equal treatment is agreed, in principle, for equal situations, and different treatment is possible for different personal situations and categories. Likewise, this jurisdiction has indicated that, to determine if a distinction is really justified, it is necessary to analyze whether the reason that produces it is reasonable, i.e., whether, in light of the particular circumstances of the case, diverse treatment is justified.

In addition to the foregoing, this constitutional body has indicated that, in those cases where an infringement of Article 33 of the Political Constitution is alleged, it is not sufficient for the appealing party to merely state or invoke that a different treatment has occurred to have the breach of the constitutional norm proven, since whoever alleges the violation of this principle is obligated to provide ab initio sufficient elements that suggest –with a reasonable degree of probability– that a differentiated and unjustified treatment has been unjustifiably given to equal situations. As established by this Chamber, it is not enough for the petitioner to state, without more, that in a given case a different treatment has occurred, to have that breach proven. On the contrary, whoever alleges the violation is obligated to provide elements that allow for a full comparison between the subjects treated differently –see, in this regard, the provisions, among others, in Judgments No. 2023-14335, of 9:30 a.m. on June 16, 2023, and No. 2024-2501, of 9:15 a.m. on February 2, 2024–.

In the present matter, the petitioners omitted to make a clear, precise, and forceful exposition of how, in their view, the content of the challenged regulations –which is solely Law No. 9796– violates the principle of equality of Judicial Branch retirees, thus making it impossible for this Court to carry out the corresponding substantive analysis. Note that the petitioners, in the first place, did not provide the case file with a precise comparison parameter that would allow this jurisdiction to carry out the analysis of interest; on the contrary, in the filing brief they limited themselves to mentioning that judicial officials contribute 13.5% and the "rest of the population," 3.8%; this last aspect, furthermore, is not even regulated in the law under study. They also indicate that the reform made through Law No. 9796 affects Judicial Branch retirees over "any other system," by virtue of the progressive and accelerated reduction of the pension amount; but, it is not specified or clarified which other system or systems they are referring to and in what concrete way that alleged differentiated and unreasonable treatment is carried out. The petitioners insist on making abstract assessments referring to "the rest of the systems," without explaining, as said, in what way the violation they claim allegedly occurs.

In that same line of reasoning, it should be noted that, in the brief filing this action, specifically, in the section where the violation of Article 33 of the Constitution is claimed, the interested parties carry out a lengthy exposition and explanation of the content of this principle and even refer to its relationship with the principles of constitutional supremacy, reasonableness, and proportionality; however, they do not stop, as stated supra, to explain in what way the questioned articles of Law No. 9796 generate the alleged violation. In particular, the interested parties limited themselves to maintaining that the law in question flagrantly, directly, and grossly attacks the principle of reasonableness and that it, in turn, "is inconsistent and disproportionately burdensome for the sector of judicial retirees." In essence, the petitioners invoked the violation of Article 33 of the Constitution without offering any comparison parameter or element of judgment, as was appropriate for this type of case.

Now then, despite what was said supra and even though the petitioners did not perform the necessary exercise and development that is noted, it is pertinent to indicate, at this point, that a violation of the principle of equality could not be claimed insofar as the special solidarity contribution (core object of this constitutionality proceeding) was imposed on various pension systems; that is, as the Office of the Attorney General of the Republic well explains in its report, on distinct systems, with equally diverse benefits and conditions, so, consequently, there is no possible comparison to be made (in terms of equality of conditions) that would allow validating a violation of the principle of equality.

Inequality, as well explained above, could only be invoked when unreasonable and disproportionate differentiations occur or are produced in identical conditions, which, as stated, does not occur based on the foregoing assumptions. In fact, note that the petitioners themselves, in the brief filing this matter, are in agreement with this last statement in maintaining that "those placed in different positions, situations, or categories must receive different legal treatment." Moreover, it is the same interested parties who maintained that the subjects included in the law "are considerably dissimilar." In addition to the foregoing, it must be taken into account that this Court, in the already reiterated Judgment No. 2021-11957, of 5:00 p.m. on May 25, 2021, dismissed the grievance regarding the alleged violation of the principle of equality claimed by the petitioners, when making a comparison between the Judicial Branch pension system and the CCSS pension system, on the occasion, in turn, of the provisions of Law No. 9544. The foregoing, by explaining, fundamentally, that they are two totally different systems. On that occasion, this jurisdiction specialized in constitutional matters ordered the following:

"XXIX.- Judge Hernández López writes. Regarding the principles of equality and unity of social security and the provisions of Chapter I "Benefits" of Law 9544. The petitioners claim a violation of the principle of equality and of the unity of social security in relation to the Disability, Old Age, and Death System of the Costa Rican Social Security Fund and state that, although part of the intention with the reform introduced by Law 9544 was for the Judicial Branch Retirement and Pension System to be equal to or, at least, as close as possible to that system, what was done instead was to distance judicial employees considerably from the Costa Rican Social Security Fund system and from any other social security system existing in the country. They point out that with the reform introduced by Law 9544, Judicial Branch workers end up contributing additional amounts in at least 3 items that workers in the country who are affiliated with the Disability, Old Age, and Death System of the Costa Rican Social Security Fund do not have. This concerns the payment by Judicial Branch retirees of: 1) 5 per 1000 for administration expenses that must be paid to the Fund's Board of Administration and that, in principle, would represent approximately 0.41%, payable by active workers as well as by retirees and pensioners; an amount that was not paid before because the administration of the Fund was carried out by the Superior Council of the Judicial Branch and the Full Court, as part of the legally assigned functions; 2) 13% contribution to the Judicial Branch Retirement and Pension System, which would represent the amount contributed by active employees, retirees, and pensioners. In this case, the contribution difference is much higher for those affiliated with the Judicial Branch System, even though both categories –Judicial Branch System and IVM System– have the right to bear the same burdens; 3) 5% contribution for health insurance to be paid by retirees or pensioners, while pensioners under the IVM system do not contribute for this item.

The interested parties argue that the sum of the 3 previous items would imply that when 82% of the gross retirement amount is deducted, the latter would finally end up at a real amount of 66.83%; in contrast, in the case of workers affiliated with the Disability, Old Age, and Death System of the CCSS, they claim that although it is true that the basic pension amount ranges between 43% and 52.5% of the gross pension amount, it is also true that this system has 2 additional incentives that are added to that basic amount: a) 0.0833% for each additional month contributed starting from monthly contribution number 240, and b) the deferral benefit (beneficio por postergación) which is 2.9326% in the case of women and 2.7993% in the case of men. As matters stand, they indicate that for workers affiliated with the Disability, Old Age, and Death System of the CCSS (RIVM), in the case of a woman who retires at age 65 with 35 years of service in the RIVM, the basic pension amount would be around between 60.9266% and 70.4266%, and in the case of a man with those conditions, it would be between 60.7933% and 70.2933%, and, according to what they state, when contrasting these percentages with the basic amount for judicial employees of 66.83%, it is observed that persons affiliated with the Disability, Old Age, and Death System would be in a better situation. For this reason, they consider it more than evident that, in view of these data, far from having made both systems equivalent, what was done instead was to place those affiliated with the Judicial Branch System in a disadvantaged situation compared to those belonging to the CCSS system, and, with this, they consider that the right to equality and the principle of unity of social security are harmed. (…)

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

Based on what has been said, in the Chamber's opinion, the appellants are not correct regarding this claim, first because there is no evidentiary element showing that the legislature's intention was directed at homogenizing the Judicial Branch Retirement and Pension System with the CCSS's Disability, Old Age, and Death System, which is completely different in its nature, in the number of contributors, employer contributions, worker beneficiaries, etc., and because –even if that were true– the legislature's final result is clear as to its will that there be an exclusive system for Judicial Branch workers, which is consistent with the inclination that emerges from the petitioners to keep their system in force and protect it, as well as with the vocation of the superior authorities of the Judicial Branch and the IICE's own technical studies, to foster the necessary conditions for the Judicial Branch Retirement and Pension System to continue functioning and to be robust as well as solvent. Now then, it is clear to this Court that that decision to maintain a special retirement system, independent and different from the basic one, entails an associated cost and gives rise to consequences that must be borne by its members, which by the mere fact of being different do not necessarily imply discrimination, violation of the principle of equality, or of the principle of unity of social security. From this perspective, the establishment of different contribution amounts and burdens for the systems, obligations or not to continue contributing after the retirement right has been acquired, and diverse conditions for granting the right to a person, is the result of the need to take into account the particularities and plurality of factors related to the working conditions and the configuration of the group of participants in the fund (or the disparity in employer contributions), as well as the benefits intended to be obtained upon retirement, or else in attention to the social and economic policies that may intervene at a given time. On this point, the Chamber considers that, if the primary purpose of the constituent power was to maintain social insurance to strengthen social security, there is no reason to question the existence of a plurality of systems, provided that, as the Office of the Attorney General indicated, criteria of equality are met with respect to State contributions. Thus, it is constitutionally acceptable that there exists a difference between the Costa Rican Social Security Fund's pension system and that of the Judicial Branch, because their enactment responds to different needs and conditions that make a simple comparison in terms of deductions, worker contributions, and benefit profiles improper, without also weighing the differences between the number of contributors, caps, coverage of acquired rights, and other conditions that make them different. It is also worth adding that it is public and notorious, having been publicly reported by that institution's own authorities, that the Costa Rican Social Security Fund's pension system presents significant threats to its financial stability and that in response to this, changes are being considered in the eligibility requirements and the benefit profile, so that also from this point of view, the comparison put forward by the petitioners loses weight and relevance to serve as support for a declaration of unconstitutionality for inequality, as requested. As matters stand, the Chamber does not consider that Law 9544 has violated the principles of equality (…)” (The highlighting is not part of the original).

For its part and, in line with the foregoing, in the recent Judgment No. 2024-6250 of 4:30 p.m. on March 6, 2024, by which the constitutionality of Law No. 9796 was analyzed –particularly for the case of the National Teachers' pensioners–, this Chamber stated that the principle of equality could not be deemed violated, since the regulations of interest –which precisely regulate what pertains to the special and solidarity contribution– were applicable to all the pension systems, i.e., to those contemplated in the Framework Law for the Special Contribution of Pension Systems, the General System of Pensions Charged to the National Budget, the National Teachers' system, and the special Judicial Branch system. Likewise, on this occasion, it was clarified that, in any case, it was not correct to carry out comparisons between the various special pension systems, since these respond to different criteria of grouping and regulation; such that the solutions adopted by the legislature for each specific case could be validly different for each one of those groups.

In addition to the foregoing, it is important to highlight that, according to the terms of the provisions in Law No. 9796, particularly what is established in Articles 4, subsection b) and 7 –which, in turn, reformed Article 236 bis of the Organic Law of the Judicial Branch–, the payment of the solidarity contribution in question will be imposed on all Judicial Branch retirees whose pension amount exceeds six base salaries of the lowest position paid in said institution. In turn, according to what is established in said articles, pensioners of this system must contribute in a staggered and progressive manner, according to the specific amount they receive for that concept. Consequently, it could not be maintained that, among retirees of the Judicial Branch system who find themselves in identical conditions –e.g., who receive a certain pension amount locatable on a specific scale according to the provisions of Article 236 bis of the Organic Law of the Judicial Branch–, arbitrary and unjustified differentiations are carried out; a plane where one could then indeed speak of a violation of the principle of equality. However, as stated, this state of affairs also does not occur according to the study carried out. A similar argument was made by the Chamber when issuing the criterion established in Judgment No. 2024-6250, of 4:30 p.m. on March 6, 2024, under the understanding that, within the framework of the National Teachers' pension system, all retirees –as of the new cap that was established in accordance with Law No. 9796– must comply with the payment of the solidarity contribution with one same purpose, which is to guarantee the sustainability of the pensions. Moreover, on that occasion it was indicated that, being progressive scales –which equally occurs for the case of Judicial Branch retirees, as has already been explained–, the principle of equality is also respected among the different income levels of each retired person. All the foregoing led this Court to conclude that, within the framework of the National Teachers' system, all retirees must, then, comply with similar obligations, and the distinctions cannot be branded as odious or discriminatory, as these are based on the income of each one.

As matters stand, this Constitutional Court considers that there is no merit whatsoever to grant this action of unconstitutionality with respect to this argument.

F. Regarding the alleged violation of the principle of reasonableness and proportionality. On the other hand, the petitioners claim that the reforms made based on the provisions of Law No. 9796 become unreasonable and disproportionate, insofar as they end up imposing on the judicial retiree deductions from the amount of their pension of up to 55%.

Having reviewed the foregoing, this Chamber does not consider that this particular aspect of the process can be evaluated on its merits, insofar as the claim of the interested parties lacks foundation, having merely "stated" the grievance against such principles, concomitantly omitting to perform an analysis of the essential elements that serve as parameters of reasonableness (necessity, suitability, and proportionality in the strict sense), with respect to the norms whose constitutionality is being challenged, in order to consequently demonstrate that they do not meet this triple condition. The foregoing aspect, as stated, is an essential and determining requirement for this constitutional jurisdiction to issue a pronouncement on the matter. Note that, in this regard, this Chamber, in ruling 2014-1584 of 16:01 hrs. on February 5, 2014 -reiterated, among others, by rulings number 2022-374 and 2024-4629-, stated the following on this point.

"C.- Regarding the principle of reasonableness and proportionality. The plaintiff association considers that Article 32 bis of the Commercial Code lacks objective criteria, and that there is no assessment of the necessity and utility of the pursued purpose; although it justified the aforementioned violations, already dispelled by this Court, it did not do so regarding the violations of this principle. It is not enough to state the violation of the principle of reasonableness, but rather there is an obligation to provide the reasons why it considers these parameters do not exist. In this sense, this court notes that in ruling No. 0523-99, of 14:00 on July 7, 1999, this Court ruled as follows on this requirement:

«To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide proof or at least elements of judgment on which to base its argument, and an equal procedural burden falls on whoever rebuts the arguments of the action; failure to fulfill these requirements makes claims of unconstitutionality unacceptable. The foregoing is because it is not possible to carry out an analysis of "reasonableness" without the existence of a coherent line of argument that is probatively supported. This is, of course, except in cases where the "unreasonableness" is evident and manifest» (…)" (The emphasis is not part of the original).

From the study of the action, as stated, it is noted that the plaintiff party not only failed to clearly and concisely indicate the reasons leading them to conclude that the questioned norms are unreasonable, but also failed to perform the test of reasonableness required in these cases, nor does it provide any proof allowing for such a conclusion. Moreover, the present matter does not present the characteristics of a situation of evident and manifest unreasonableness, easily perceptible.

In any case, it should be noted that an argument similar to the one now raised by the plaintiffs was addressed and dismissed by this Chamber in Ruling No. 2021-11957, of 17:00 hrs. on May 25, 2021. On that occasion, the following was expressly stated:

"XLVIII. Drafted by Justice Araya García. Regarding the claim of lack of reasonableness and proportionality of the special, solidarity-based, and redistributive contribution established in Article 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial).- The plaintiffs claim that the special, solidarity-based, and redistributive contribution violates the principles of reasonableness and proportionality because it broadly affects the sums ultimately received by retirees of the Judicial Branch’s Retirement and Pension System (Régimen de Jubilaciones y Pensiones del Poder Judicial), who see their payments reduced not only by the 13 percent contribution to the Fund but also by percentages of 35 to 55 percent on the excess amounts, without any reason or justification for this and only for the purpose of preventing people who earned their right to receive a high pension from receiving such sums, considered luxurious without being so in any way. (…)

L.- Drafted by Justice Araya García. To address this claim, the Court refers to what was stated in previous Whereas Clauses (Considerandos) regarding the nature and purpose of the special, solidarity-based, and redistributive contribution, according to the original design of Article 236 bis of the Organic Law of the Judicial Branch, and recalls the fact that it is a charge on those high retirement and pension payments into the new system put into operation with the reform. It also especially emphasizes that regarding the maximum limit of deductions that the plaintiffs challenge as a key element for the lack of reasonableness and proportionality in the special contribution, such a question was defined supra, by majority, in line with what was stated in ruling number 2020-19274 cited above, to the effect that the percentage of legal deductions -in cases where they are constitutionally permissible- may not exceed 50 percent of the gross pension amount. In addition to the foregoing, and considering that the claim against the reasonableness and proportionality of the special contribution uses the concept of the "last salary" or the "income level at the time of retirement" as a parameter, it must be reaffirmed what this Court stated regarding the insufficiency of the actions filed to constitutionally justify the choice of such a parameter to contrast the deductions.

LI.- Drafted by Justice Araya García. Having pointed out the foregoing, it is appropriate to then analyze whether the structure of the deductions themselves generates any unreasonableness or disproportionality of constitutional scope that must be corrected by this Court, taking into account that, as this Chamber has been holding, in this type of discussion about the amounts to be received, the constitutional right to receive a retirement or pension is not at stake, since the latter does not consist of the right to receive a specific amount of money, and therefore the amounts to be paid can be adjusted according to the State's financial possibilities and social security designs, provided that the dignity of the person is not affected nor are they prevented from enjoying their other fundamental rights and, in general, from living a dignified life. In principle, the observation is made that this special charge, according to the design discussed in the actions, sought to tax the excess amounts over the limit set in Article 225 of the Organic Law of the Judicial Branch, namely, ten times the minimum salary paid in the Judicial Branch, which was established for the year 2020 at 433,800 colones. Thus, the application of the special, solidarity-based, and redistributive contribution would have begun to be deducted on excess payments exceeding 4,330,800 colones, thereby fulfilling the intended purpose of balancing, with extraordinary income, the equally extraordinary expenditures that the fund would have to face; this need was clearly stated in the study and technical proposal used as the basis for the legislation by the Legislative Assembly, as observed in folio 1984 of the legislative file which contains the summary tables of the four regulatory frameworks proposed by the IICE and which explain -in the additional income paragraph- the need for a solidarity contribution for those payments above the proposed limit, and it was clarified that it was a single percentage. Furthermore, the necessity and suitability of said measure become even more apparent when it is verified that the Assembly excluded from the final text the sums corresponding to abandoned judicial deposits that were included in the technical proposal as additional resources in the cited recommended regulatory frameworks. It must also be taken into account that what was approved was a progressive scale which, in this revenue-collection matter, is much more protective for those affected, thus -in the Chamber's opinion- satisfying the requirement of proportionality in the strict sense. The plaintiffs insist on the fact that the deductions could reach such a magnitude as to deprive retirees and pensioners of the possibility of living a dignified life, but the truth is that in this aspect, the arguments set forth in ruling 2020-19274 are fully applicable, which held, by majority, that the reduction of retirement amounts by up to 50 percent is not in itself unconstitutional, but rather that the interested parties must demonstrate that the remaining sums actually received are insufficient to meet their basic needs as elderly persons and to maintain a standard of living that can objectively be considered dignified. In this specific case, and with the original limit indicated above, the recipients of the lowest retirement or pension payments within the group affected by this special, solidarity-based, and redistributive contribution would have to receive 50 percent of the gross amount; that is, in the worst-case scenario of deduction for them due to increases in legal contributions of any kind, the minimum to be received would be 2,150,000 colones. It was the plaintiffs' responsibility to clearly demonstrate that this sum is generally insufficient to adequately cover the average needs of a retired or pensioned person in our country. It must also be taken into account that, in accordance with the social security system derived from the validity of the Worker Protection Law (Ley de Protección al Trabajador), retirees will have additional sums derived from their funds in the other two pillars. From the foregoing, it is concluded that there is also no vice of unconstitutionality in the original design of the special, solidarity-based, and redistributive contribution set forth in the original text of Article 236 bis of the Organic Law of the Judicial Branch. (…)" (The emphasis is not part of the original).

Consequently, the appropriate course is to dismiss this aspect of the process.

G. Regarding the alleged infringement of the principle of solidarity. The plaintiffs also allege that the law under study violates this principle, since it varies the circumstances for a specific sector of the population -Judicial Branch retirees- with a reform that is not progressive but disruptive, generating poverty and patrimonial detriment. Having reviewed the foregoing, this Chamber does not find merit to uphold this aspect of the process. The foregoing, in the first place, insofar as the plaintiff party –as is appropriate for the filing of a formal proceeding such as an unconstitutionality action (acción de inconstitucionalidad)–, does not explain or substantiate, in a clear and precise manner, how, concretely, through the articles contained in Law No. 9796, the principle of solidarity could be violated. In addition, the plaintiffs did not demonstrate their alleged condition of poverty and patrimonial detriment; inputs of great relevance for understanding and examining this particular aspect. Regarding this last point, it should be noted that this Chamber, in the repeatedly cited ruling 2021-11957, of 17:00 hrs. on May 25, 2021, upon hearing allegations similar to the one now raised, held the following:

"Secondly, the plaintiffs speak of high percentages of impact with respect to the last salary, but -apart from what has been said regarding such a parameter- the truth is that no technical evidence is provided regarding the real impact and effect of the challenged legal reform, given that all deductions except one are pre-existing to the reform, and the only nominal changes that the Chamber observes are: the change from 11 to 13 percent in the worker contribution and the charge of a 5 per thousand (i.e., 0.5%) to cover the Fund's administration expenses, so that -in its essence- the structure of the deductions is not significantly different from that applicable to the fund's participants during their working life, nor compared to the previous legal situation that the plaintiffs claim; accordingly, it was the plaintiffs' responsibility to demonstrate that such modifications generated a serious decrease in the actual income of those affected, but such evidence is lacking (…)

In the fourth and last place, it is worth noting that a claim like the one raised at this point (payment of retirement benefits described as 'ruinous, pauperizing, and undignified') cannot be based on abstract elaborations referring solely to deduction percentages, because this omits the fact that 'ruin,' 'pauperization,' and 'indignity' do not operate in the abstract but are verified in reality against the insufficiency of the payments and the actual amounts received; this is meant to emphasize that speaking in the abstract of deductions of 50 or 55 percent from the last salary could include, for example, cases of salaries between 4 and 6 million colones which, reduced by half, leave the beneficiary with a net retirement sum of around 2 to 3 million colones per month, which -in light of this Court's experience and unless proven otherwise- cannot be openly considered insufficient to live a dignified old age in our country (…)" (The emphasis is not part of the original).

Likewise, in this last ruling, this jurisdiction also stated:

"(…) It was also explained above that the concrete amounts that have been subject to the special levy (gravamen especial), given their high amount, leave in the hands of the affected retirees and pensioners a remaining sum regarding which the plaintiffs have not been able to demonstrate, not even indicatively, its manifest insufficiency to provide economic support for a dignified life and the enjoyment of the human rights that comprise the assets of elderly persons, especially taking into account that precisely in response to constitutional and conventional obligations, the State -in a broad sense- has been building a support structure in various areas to ensure precisely that dignity in old age, not only for retirees but for all elderly persons. In conclusion, as stated, no concrete impact on the possibilities of effective enjoyment of fundamental rights and the possibility of living a dignified life, recognized in favor of elderly persons by normative instruments of various ranks and by the Chamber's jurisprudence, has been demonstrated; therefore, consistently, the action must be declared without merit on this point as well (…)" (The emphasis is not part of the original).

Now, despite the foregoing, it is appropriate to point out that this jurisdiction, when issuing ruling No. 2024-6250, of 16:30 hrs. on March 6, 2024 -which ruled precisely on the present law under study No. 9796-, was clear in stating that the right to retirement (derecho a la jubilación), embedded as a social and solidarity right, concomitantly entailed –pursuant to the provisions of constitutional Article 50– a task for the State of administration, management, and redistribution of resources, in order to ensure precisely the solvency of the retirement system itself and the general well-being of the social collective. On that occasion, alluding, in turn, to what was established in Ruling No. 1999-3338, the Chamber thus held that solidarity among the members of a community (which implies, broadly speaking, contributing according to one's means and for the benefit of those who have less), legitimizes and justifies the imposition of charges (such as the special solidarity contribution (contribución especial solidaria)), in favor of a fair and adequate redistribution of wealth.

In addition to the foregoing, it must not be lost sight of that, contrary to what was alleged by the plaintiff party and as explained supra, the levy (gravamen) in question is indeed progressive, so that, within the levied group, those who receive the highest sums must contribute more to the fund's sustainability.

Having stated the foregoing, this aspect of the process must be declared without merit.

H. Regarding the alleged lack of technical studies. Finally, the plaintiffs allege that, for the establishment of the contribution percentages to the system -which range between 35% and 55%-, there were no technical studies, which, in their opinion, makes the norm under study arbitrary and unconstitutional.

However, in the opinion of this Chamber, this argument is also not acceptable. The foregoing, insofar as the plaintiffs once again omitted to present the arguments, in a duly substantiated manner, regarding how this alleged omission (lack of technical studies to impose the referred contribution percentages) could imply or signify an unconstitutionality. As can be easily inferred from a reading of the filing brief for this unconstitutionality action, first, the interested parties only indicated that the contributions imposed on Judicial Branch retirees cause a deterioration in their economic condition "by setting confiscatory deduction levels, which are not supported by technical and/or specialized studies." A few pages later, they merely mentioned that "in the law we challenge, deduction percentages of 35% (…) 45% (…) and 55% (…) are set, percentages fixed without any technical study, and therefore they are arbitrary and confiscatory (…)." As explained supra, it is fundamental, in order to hear the merits of this grievance, for the plaintiff party to provide duly reasoned argumentation regarding the manner in which, in their opinion, the alleged lack of technical studies could clash with the provisions of the Political Constitution; hence, without such argumentation, this jurisdiction cannot issue any pronouncement.

In any case, it is relevant to take into account that in ruling No. 2024-6250, of 16:30 hrs. on March 6, 2024 -through which, as already stated, this Chamber ruled on the constitutionality of Law No. 9796, but referring to or circumscribed to the scope of the National Teachers' Pension System (régimen de pensiones del Magisterio Nacional)-, an analysis of the legislative process -file No. 21,035- was carried out and it was noted that, for the approval of said norm, technical criteria were indeed available. It is worth mentioning that although, on that occasion, the Chamber focused on the analysis of that specific pension system -National Teachers-, it was also stated that, for the purpose of issuing the norm in question, including that pertaining to the Judicial Branch, there were then studies and technical criteria that supported it, which, moreover, was confirmed by what was stated by the legislative advisor of the Department of Technical Services, Mr. Arias Ramírez, in ordinary session No. 30 of the Permanent Commission on Social Affairs (Comisión Permanente de Asuntos Sociales), who, on that occasion, asserted that actuarial reports were indeed available, the Judicial Branch's even being the last to arrive. According to what was indicated by this constitutional body in said recent ruling, even if at an initial stage of the legislative process the technical studies were lacking, the truth is that these were finally added to the respective file, with which, it is not possible to affirm that the law in question was enacted lacking such inputs.

Finally, it is important to clarify that any disagreement one may have regarding the actual content of said technical criteria does not fall to be analyzed by this constitutional body. This Chamber is not responsible for, because it lacks competence to do so and because it is, at its core, a matter of mere and pure legality, examining what was stated on such occasions and consequently determining whether what was provided or stated in one or another technical criterion was pertinent or not; especially, for the purposes of the reform made to the Judicial Branch's retirement system (régimen de pensiones del Poder Judicial).

Under this order of considerations, this aspect of the process must be equally dismissed.

XI.- COROLLARY. By virtue of the foregoing, it is necessary to partially uphold (acoger parcialmente) the present unconstitutionality action. Consequently, the contribution percentage and the special contribution established in Article 5 of Law No. 9796 are annulled to the extent that they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person of the Judicial Branch system. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), in order to avoid serious disruptions to security, justice, or social peace, the Chamber calibrates (gradúa) and dimensions (dimensiona) the effect of this resolution, so that, starting from the month following the notification of this ruling, the Tax Administration must make the corresponding adjustment in accordance with this ruling, such that the tax burden (carga tributaria) on the amount of the retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner.

XII.- DISSENTING VOTE OF JUSTICE RUEDA LEAL. In the sub examine, the majority partially upholds the action and "annuls the contribution percentage and the special contribution established in Article 5 of Law No. 9796 to the extent that they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person of the Judicial Branch system." In this regard, I partially dissent from the vote regarding this point and declare it without merit, since, according to the express text of Article 67 of ILO Convention No. 102 of 1952, called 'Social Security (Minimum Standards) Convention,' the pension or retirement may be reduced provided that 40% of a reference salary is respected.

On the matter, the main ruling in this proceeding bases the unconstitutionality referred to ut supra on what was resolved in ruling No. 2021-11957 of 17:00 hours on May 25, 2021, which ordered: "(…) By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez) the percentage of contributions and the special, solidarity-based, and redistributive contribution are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, in order to avoid serious disruptions to security, justice, or social peace, the Chamber calibrates and dimensions the effects of this resolution, so that, starting from the month following the notification of the ruling, the competent authorities must make the corresponding adjustment in accordance with this ruling, such that the tax burdens on the amount of the retirements and pensions do not exceed 50% of the gross amount received by the retiree or pensioner." However, I depart from this criterion in the following terms:

"Dissenting vote of Justice Rueda Leal in relation to Whereas Clause (Considerando) XLI. In the sub examine, the unconstitutionality of Law No. 9544 is alleged, insofar as it reformed Article 236 of the Organic Law of the Judicial Branch and added Section 236 bis to that regulatory body. It is reproached that both articles established a maximum limit of 55% of deductions with respect to the gross retirement amount, which they consider excessive and contrary to the fundamental right to retirement.

The challenged norms have the following content:

"Article 236- The Judicial Branch Retirement and Pension Fund shall have the following income:

• 1)A worker contribution of thirteen percent (13%) of the salaries earned by judicial employees, as well as retirements and pensions paid by the Fund, a percentage to be withheld from the corresponding periodic payment.
• 2)An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the salaries and wages of its employees.
• 3)A State contribution which shall be a percentage on salaries and wages equal to that established for the Costa Rican Social Security Fund's (Caja Costarricense de Seguro Social, CCSS) Disability, Old Age, and Death System (Régimen de Invalidez, Vejez y Muerte).
• 4)The returns and other benefits that the Fund produces or may generate, obtain.

Under no circumstances may the sum of the mandatory contribution and the special, solidarity-based, and redistributive contribution and, in general, the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund, represent more than fifty-five percent (55%) of the total gross amount of the pension that rightfully corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the mandatory contribution established in this law shall enter the Judicial Branch Retirement and Pension Fund.

Article 236 bis- Special, solidarity-based, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity-based, and redistributive manner, according to the following table:

• a)On the excess over the limit established in Article 225 and up to twenty-five percent (25%) of said limit, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess over the preceding margin, they shall contribute fifty-five percent (55%).

Under no circumstances may the sum of the special, solidarity-based, and redistributive contribution and the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund, represent more than fifty-five percent (55%) of the total gross amount of the pension that rightfully corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the special, solidarity-based, and redistributive contribution established in this law shall enter the Judicial Branch Retirement and Pension Fund." Regarding the maximum percentage of pension deductions, the Majority vote partially transcribes what was ordered in ruling No. 202019274 of 16:30 hours on October 7, 2020. In addition, it points out that Articles 236 and 236 bis of the Organic Law of the Judicial Branch (reformed by the challenged Law No. 9544), are unconstitutional, since both set 55% as the maximum limit of legal deductions, which exceeds by 5 percentage points the maximum established in the cited resolution. Likewise, it annuls the percentage of contributions and the special contribution insofar as it exceeds 50% of the gross amount of the pension corresponding to the retired or pensioned person.

However, I respectfully depart from the Majority's criterion and declare the appeal without merit based on these reasonings.

As I indicated in my dissenting vote to ruling No. 202019274 of 16:30 hours on October 7, 2020, the percentage established by the Majority as the maximum limit for contributions and deductions (50%) was based on a forced interpretation of Section 71.2 of ILO Convention C102, since Article 67 of that international instrument is the one that applies to pension reductions. On that occasion, I stated:

"III.- Dissenting Vote regarding the substantive claims related to Laws No. 9380 and 9383. The legal premise of the majority vote, on which most of its line of argument is based, starts from the assumption that Article 71.2 of ILO Convention C102 of 1952 - Social Security (Minimum Standards) Convention - is applicable to pensions and retirees. This provision states:

"2. The total of the insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their wives and children. For the purpose of ascertaining whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefit and employment injury benefit (if the latter is provided by a special branch)." Since the norm refers to "employee" (asalariado), the majority is forced to specify the meaning of that term, since, evidently, it only refers to active workers. In this regard, the main ruling in this proceeding states:

"It would remain to be determined whether 'employee' means only the worker before acquiring the right to a pension upon the occurrence of the formal and substantive conditions of the right, or whether it is possible to understand that employee also refers to another type of system beneficiary." In the Chamber's opinion, a broader interpretation must be given that includes not only (sic) the active worker, to admit that the pensioner or retiree would indeed be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic standpoint, with the idea that the pensioner or retiree receives a deferred salary (salario diferido) that they built up with their contributions throughout their working life. Moreover, it cannot be overlooked that in the Committee of Experts' document, the concept of wage-earners evolves when it refers to “insured persons.” Thus, this concept must be assimilated to both obligors, as potential and current insureds: pensioner and wage-earner. As can be seen, the cited study emphasizes that there is no straitjacket imposed on States; on the contrary, the approach must respond to national contexts, and the evolution of systems to agree on a solidarity-based financing and good governance system within the framework and evolution of human rights cannot be ruled out, as will be discussed below. If the provision seeks to achieve a balance, it is perfectly understandable that it should include all those who receive a pecuniary sum resulting from the agreed benefit, because in that sense, it distributes that burden across all participants, which is what the international norm truly seeks to establish. This interpretation would align positively with the Committee of Experts, already cited. Consequently, it must be understood that “wage-earner” or “insured person” has a broad meaning and is not a term that excludes pensioned or retired persons.” Based on the foregoing, the Chamber, in the main vote, concludes that laws no. 9380 and 9383 infringe the second paragraph of numeral 71 of ILO Convention No. 102 by establishing a cap exceeding 50%. Likewise, the majority considers that the excess of 5% set by the legislator implies a violation of the core of the right to retirement or pension, insofar as the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the foregoing, the undersigned disagrees with this hermeneutics, because it is based on a false premise stemming from a technical confusion in basic legal notions.

First, ordinal 71.2 of ILO Convention C102 of 1952 -Convention concerning Minimum Standards of Social Security-, refers to the percentage of insurance contributions payable by wage-earners in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, the wage-earner, according to the referenced norm, should never contribute to the Caja Costarricense de Seguro Social more than 50% of the total resources allocated to the protection of wage-earners and their spouses and children, that is, of the total resources financed through the remainder of the contributions (from the employer and the State).

Now, it is unquestionable that the express text of the Convention norm regulates “wage-earners”; that is, the economically active population, without it being validly inferable from any ILO study the conclusion reached by the majority that it also applies to “pensioners.” What is most serious about the foregoing is that the Chamber, through jurisprudential means, varies the positive text of a conventional norm ratified by Costa Rica through the competent bodies. In this way, it changes the legal-normative meaning of the provision contained in the international instrument with the purpose of forcibly adapting it to the specific case, which notoriously concerns a matter foreign to the object of the sub lite –the salary–, thus ignoring the existence of other norms of the ILO Convention that specifically and concretely regulate matters pertaining to pensions and the limitations that can validly be imposed on them in the interests of the system’s financial stability and social solidarity. In this regard, Part XI “Calculation of Periodical Payments” contains the following provision:

“Article 67 With respect to any periodical payment to which this Article applies:

(a) the amount of the benefit shall be determined in accordance with a prescribed scale or according to a rule fixed by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other resources of the family, after deduction of the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds by at least 30 per cent the total amount of the benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

TABLE ANNEXED TO PART XI.-PERIODICAL PAYMENTS TO STANDARD BENEFICIARY Parts Contingencies Standard Beneficiaries Percentage III Sickness Man with spouse and two children 45 IV Unemployment Man with spouse and two children 45 V Old age Man with spouse of pensionable age 40 VI Employment injury and occupational diseases:

Incapacity for work Man with spouse and two children 50 Invalidity Man with spouse and two children 50 Survivors Widow with two children 40 VIII Maternity Woman 45 IX Invalidity Man with spouse and two children 40 X Survivors Widow with two children 40 (The emphasis is not original).

Ergo, according to the literal and explicit text of the Convention, for the old-age pension to be reducible and, in this way, in principle ensure the family healthy and decent living conditions, such benefit must reach at least 40 percent of a reference salary.

On this point, an ILO study does exist. Precisely, at the International Labour Conference, 76th Session, 1989, “The protection of old age by social security, general study by the Committee of Experts on the Application of Conventions and Recommendations,” it was stated:

“Level of Benefits 130. By virtue of the table annexed to Part XI of Convention No. 102 regarding periodical payments, old-age benefits for a standard beneficiary – man with spouse of pensionable age – must reach 40 percent of a reference salary. This percentage rises to 45 percent in the table annexed to Part V of Convention No. 128. Both percentages may however be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into account by the Conventions (paragraphs 1, 3 and 4, Article 29 of Convention No. 102 and paragraphs 1, 3 and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 percent (paragraph 22), and recommends in its paragraph 23 that national legislation fix the minimum amount of old-age benefits, in order to ensure a minimum standard of living.” (The emphasis is not original).

In this way, I consider that the premise from which the majority vote starts becomes false, and therefore, the conclusions derived from it are inexorably erroneous.

Now, the sole Article of Law No. 9380 of July 29, 2016, entitled “Contribution Percentage for Pensioners and Active Servants for Special Pension Regimes,” regulates:

“Under no circumstances may the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%) of the total amount of the pension that the beneficiary is entitled to by right. In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” For its part, ordinal 3 in fine of Law No. 9383 of July 29, 2016, entitled “Framework Law on the Special Contribution of Pension Regimes,” establishes:

“Under no circumstances may the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” This limit of 55% with respect to the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since it cannot be inferred from the claimants' arguments that its application automatically transgresses the 40% barrier regarding a reference salary in the terms of Article 67 of that international instrument. In that sense, such a reference salary, in the case of Costa Rica, could refer to the average of salaries used to calculate a person's pension amount, which is in accordance with ordinal 65 of that regulation. It should be noted that the 55% parameter of the challenged laws is related to the gross amount of the pension, while the conventional 40% is related to a reference salary, meaning they are limits that are used differently. Consequently, it will be within the scope of the application of the legal norm that it must be assessed whether in any specific case, probably concerning very high pensions, the conventional barrier is superimposed upon the legal parameter.

Additionally, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scales issued by the Dirección General de Servicio Civil) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact, guarantee more than decent pensions for older adults. In the foregoing sense, I do not observe arguments that demonstrate that the stepped contribution and the imposed charges are openly unreasonable or affect the core of the pension right, therefore I dismiss any manifest impact on the human dignity of the beneficiaries.

Regarding the foregoing, it is not possible to affirm that the challenged provisions transgress the international protection enjoyed by older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a decent standard of living.

Thus, I consider that, with the elements provided in the case file, laws no. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they transgress the special protection enjoyed by older adults.

Likewise, even though a transgression of the principle of administrative responsibility is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause any injury to persons, so prima facie I dismiss this allegation.

(…)

In the expressed sense, if a pension financed largely or totally with public funds is unreasonably high (with disproportionate amounts and increases), it is justified that through laws the adjustment of such benefits be pursued in order to safeguard the right to a dignified existence for all pensioned persons. As long as the imposition of contributions and charges on old-age pensions and retirements respects the conventionally established percentage (Article 67 of ILO Convention 102), a priori there would be no transgression of Constitutional Law. It must be taken into consideration that, as accepted by the majority of the Chamber, the country's economic situation is complicated and the sustainability of the pension regime is compromised, so, in light of the principle of social solidarity, it is essential that those in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood based on solidarity for the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of persons. For this reason, precisely, it is not considered contrary to the principle of non-retroactivity to increase the contribution amounts of pensioned or retired persons, provided that the guarantees and limits set forth in this dissenting vote are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights regarding the right of persons to lead a dignified life in their old age, and considers that the 40% percentage, contemplated in ordinal 67 of ILO Convention 102 itself, is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectations. However, as I indicated supra, the norm of the international instrument applicable to the specific case is precisely Article 67, endorsed by the ILO, but not numeral 71.2, as it is forcibly interpreted by the majority in the main judgment. Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scales issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2,602,500.00 for the first semester of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact on larger pensions, guarantee more than decent pensions for older adults.

Finally, even though there are ILO recommendations that suggest half the salary as a pension in cases where thirty effective years of contributions are accredited, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other hand, ILO Convention 102 (whose binding nature is unquestionable) does expressly contemplate a percentage that must be respected for the purposes of the pension in old-age cases (40% of a reference salary), hence the direct application of the international instrument in the sub lite is appropriate.

Based on the foregoing, I dismiss the actions as they correspond to laws no. 9380 and 9383.” Precisely, in accordance with the thesis set forth supra, the norm of ILO Convention C102 applicable to this type of matter is Article 67, and not numeral 71.2.

In this sense, ordinals 67 and 71.2 state:

“Article 67 With respect to any periodical payment to which this Article applies:

(a) the amount of the benefit shall be determined in accordance with a prescribed scale or according to a rule fixed by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other resources of the family, after deduction of the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds by at least 30 per cent the total amount of the benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

TABLE ANNEXED TO PART XI.-PERIODICAL PAYMENTS TO STANDARD BENEFICIARY Parts Contingencies Standard Beneficiaries Percentage III Sickness Man with spouse and two children 45 IV Unemployment Man with spouse and two children 45 V Old age Man with spouse of pensionable age 40 VI Employment injury and occupational diseases:

Incapacity for work Man with spouse and two children 50 Invalidity Man with spouse and two children 50 Survivors Widow with two children 40 VIII Maternity Woman 45 IX Invalidity Man with spouse and two children 40 X Survivors Widow with two children 40 (…)

“Article 71.

(…)

2. The total of insurance contributions payable by the protected wage-earners shall not exceed 50 per cent of the total resources allocated to the protection of wage-earners and their spouses and children. To determine whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be considered together, with the exception of family benefits and benefits in case of employment injury and occupational diseases, if these latter depend on a special branch.” As can be deduced from the reading of the cited numerals, the Chamber, in judgment No. 202019274 of 4:30 p.m. on October 7, 2020, unnecessarily changed the legal-normative meaning of numeral 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of ordinal 67 of the international instrument that specifically regulates matters pertaining to the limitations that can be imposed on pensions. Note also that Article 71.2 refers to the percentage of insurance contributions payable by wage-earners in relation to the total resources allocated to that protection; that is, such provision regulates “wage-earners” (economically active population) and not “pensioners or retirees.” Based on the foregoing, consistent with the line I have maintained, I dismiss these allegations, since it is not proven that numerals 236 and 236 bis of the Ley Orgánica del Poder Judicial cited supra automatically exceed the 40% barrier of a reference salary, established in ordinal 67 of ILO Convention C102. It should be noted that the 55% parameter of the challenged laws refers to the gross amount of the pension, while the conventional 40% refers to a reference salary, meaning it falls within the scope of the application of the legal norm to assess whether, in any specific case, the barrier established in the international instrument is superimposed upon the parameter set in the legislation. Consequently, I do not observe arguments that demonstrate that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right.” Additionally, in resolution No. 2020-19274 of 4:30 p.m. on October 7, 2024 (also cited by the majority as grounds for the granting), I issued, as relevant, the following separate vote:

“Separate vote of Magistrate Rueda Leal.

(…)

III.-Dissenting vote regarding the substantive claims related to laws no. 9380 and 9383. The legal premise of the majority vote, on which most of its argumentative line is based, starts from the idea that Article 71.2 of ILO Convention C102 of 1952 -Convention concerning Minimum Standards of Social Security- applies to pensions and retirees. This provision states:

“2. The total of insurance contributions payable by the protected wage-earners shall not exceed 50 per cent of the total resources allocated to the protection of wage-earners and their spouses and children. To determine whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be considered together, with the exception of family benefits and benefits in case of employment injury and occupational diseases, if these latter depend on a” special branch.” As the norm refers to “wage-earner,” the majority is obliged to clarify the meaning of that term, since it evidently only alludes to active workers. In that sense, the main vote of this proceeding records:

“It remains to be determined whether “wage-earner” means only the worker before acquiring the right to a pension upon the advent of the formal and substantive conditions of the right, or whether it is possible to understand that wage-earner also refers to another type of system beneficiary. In the Chamber's opinion, a broader interpretation must be given that includes not only (sic) the active worker, to admit that the pensioner or retiree would indeed be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic standpoint, with the idea that the pensioner or retiree receives a deferred salary (salario diferido) that they built up with their contributions throughout their working life. Moreover, it cannot be overlooked that in the Committee of Experts' document, the concept of wage-earners evolves when it refers to “insured persons.” Thus, this concept must be assimilated to both obligors, as potential and current insureds: pensioner and wage-earner. As can be seen, the cited study emphasizes that there is no straitjacket imposed on States; on the contrary, the approach must respond to national contexts, and the evolution of systems to agree on a solidarity-based financing and good governance system within the framework and evolution of human rights cannot be ruled out, as will be discussed below. If the provision seeks to achieve a balance, it is perfectly understandable that it should include all those who receive a pecuniary sum resulting from the agreed benefit, because in that sense, it distributes that burden across all participants, which is what the international norm truly seeks to establish. This interpretation would align positively with the Committee of Experts, already cited. Consequently, it must be understood that “wage-earner” or “insured person” has a broad meaning and is not a term that excludes pensioned or retired persons.” Based on the foregoing, the Chamber, in the main vote, concludes that laws no. 9380 and 9383 infringe the second paragraph of numeral 71 of ILO Convention No. 102 by establishing a cap exceeding 50%. Likewise, the majority considers that the excess of 5% set by the legislator implies a violation of the core of the right to retirement or pension, insofar as the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the foregoing, the undersigned disagrees with this hermeneutics, because it is based on a false premise stemming from a technical confusion in basic legal notions.

First, ordinal 71.2 of ILO Convention C102 of 1952 -Convention concerning Minimum Standards of Social Security-, refers to the percentage of insurance contributions payable by wage-earners in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, the wage-earner, according to the referenced norm, should never contribute to the Caja Costarricense de Seguro Social more than 50% of the total resources allocated to the protection of wage-earners and their spouses and children, that is, of the total resources financed through the remainder of the contributions (from the employer and the State).

Now, it is unquestionable that the express text of the Convention norm regulates “wage-earners”; that is, the economically active population, without it being validly inferable from any ILO study the conclusion reached by the majority that it also applies to “pensioners.” What is most serious about the foregoing is that the Chamber, through jurisprudential means, varies the positive text of a conventional norm ratified by Costa Rica through the competent bodies. In this way, it changes the legal-normative meaning of the provision contained in the international instrument with the purpose of forcibly adapting it to the specific case, which notoriously concerns a matter foreign to the object of the sub lite –the salary–, thus ignoring the existence of other norms of the ILO Convention that specifically and concretely regulate matters pertaining to pensions and the limitations that can validly be imposed on them in the interests of the system’s financial stability and social solidarity. In this regard, Part XI “Calculation of Periodical Payments” contains the following provision:

“Article 67 With respect to any periodical payment to which this Article applies:

(a) the amount of the benefit shall be determined in accordance with a prescribed scale or according to a rule fixed by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other resources of the family, after deduction of the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds by at least 30 per cent the total amount of the benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

TABLE ANNEXED TO PART XI.-PERIODICAL PAYMENTS TO STANDARD BENEFICIARY Parts Contingencies Standard Beneficiaries Percentage III Sickness Man with spouse and two children 45 IV Unemployment Man with spouse and two children 45 V Old age Man with spouse of pensionable age 40 VI Employment injury and occupational diseases:

Incapacity for work Man with spouse and two children 50 Invalidity Man with spouse and two children 50 Survivors Widow with two children 40 VIII Maternity Woman 45 IX Invalidity Man with spouse and two children 40 X Survivors Widow with two children 40 (The emphasis is not original).

Ergo, according to the literal and explicit text of the Convention, for the old-age pension to be reducible and, in this way, in principle ensure the family healthy and decent living conditions, such benefit must reach at least 40 percent of a reference salary.

On this point, an ILO study does exist. Precisely, at the International Labour Conference, 76th Session, 1989, “The protection of old age by social security, general study by the Committee of Experts on the Application of Conventions and Recommendations,” it was stated:

“Level of Benefits 130. By virtue of the table annexed to Part XI of Convention No. 102 regarding periodical payments, old-age benefits for a standard beneficiary – man with spouse of pensionable age – must reach 40 percent of a reference salary. This percentage rises to 45 percent in the table annexed to Part V of Convention No. 128. Both percentages may however be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into account by the Conventions (paragraphs 1, 3 and 4, Article 29 of Convention No. 102 and paragraphs 1, 3 and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 percent (paragraph 22), and recommends in its paragraph 23 that national legislation fix the minimum amount of old-age benefits, in order to ensure a minimum standard of living.” (The emphasis is not original).

In this way, I consider that the premise from which the majority vote starts becomes false, and therefore, the conclusions derived from it are inexorably erroneous.

Now, the sole Article of Law No. 9380 of July 29, 2016, entitled “Contribution Percentage for Pensioners and Active Servants for Special Pension Regimes,” regulates:

“Under no circumstances may the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%) of the total amount of the pension that the beneficiary is entitled to by right. In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” For its part, ordinal 3 in fine of Law No. 9383 of July 29, 2016, entitled “Framework Law on the Special Contribution of Pension Regimes,” establishes:

“Under no circumstances may the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” This limit of 55% with respect to the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since it cannot be inferred from the claimants' arguments that its application automatically transgresses the 40% barrier regarding a reference salary in the terms of Article 67 of that international instrument. In that sense, such a reference salary, in the case of Costa Rica, could refer to the average of salaries used to calculate a person's pension amount, which is in accordance with ordinal 65 of that regulation. It should be noted that the 55% parameter of the challenged laws is related to the gross amount of the pension, while the conventional 40% is related to a reference salary, meaning they are limits that are used differently. Consequently, it will be within the scope of the application of the legal norm that it must be assessed whether in any specific case, probably concerning very high pensions, the conventional barrier is superimposed upon the legal parameter.

Additionally, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scales issued by the Dirección General de Servicio Civil) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact, guarantee more than decent pensions for older adults. In the foregoing sense, I do not observe arguments that demonstrate that the stepped contribution and the imposed charges are openly unreasonable or affect the core of the pension right, therefore I dismiss any manifest impact on the human dignity of the beneficiaries.

Regarding the foregoing, it is not possible to affirm that the challenged provisions transgress the international protection enjoyed by older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a decent standard of living.

Thus, I consider that, with the elements provided in the case file, laws no. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they transgress the special protection enjoyed by older adults.

Likewise, even though a transgression of the principle of administrative responsibility is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause any injury to persons, so prima facie I dismiss this allegation.

(…)

In the expressed sense, if a pension financed largely or totally with public funds is unreasonably high (with disproportionate amounts and increases), it is justified that through laws the adjustment of such benefits be pursued in order to safeguard the right to a dignified existence for all pensioned persons. As long as the imposition of contributions and charges on old-age pensions and retirements respects the conventionally established percentage (Article 67 of ILO Convention 102), a priori there would be no transgression of Constitutional Law. It must be taken into consideration that, as accepted by the majority of the Chamber, the country's economic situation is complicated and the sustainability of the pension regime is compromised, so, in light of the principle of social solidarity, it is essential that those in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood based on solidarity for the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of persons. For this reason, precisely, it is not considered contrary to the principle of non-retroactivity to increase the contribution amounts of pensioned or retired persons, provided that the guarantees and limits set forth in this dissenting vote are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights regarding the right of persons to lead a dignified life in their old age, and considers that the 40% percentage, contemplated in ordinal 67 of ILO Convention 102 itself, is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectations. However, as I indicated supra, the norm of the international instrument applicable to the specific case is precisely Article 67, endorsed by the ILO, but not numeral 71.2, as it is forcibly interpreted by the majority in the main judgment. Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scales issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2,602,500.00 for the first semester of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact on larger pensions, guarantee more than decent pensions for older adults.

Finally, even though there are ILO recommendations that suggest half the salary as a pension in cases where thirty effective years of contributions are accredited, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other hand, ILO Convention 102 (whose binding nature is unquestionable) does expressly contemplate a percentage that must be respected for the purposes of the pension in old-age cases (40% of a reference salary), hence the direct application of the international instrument in the sub lite is appropriate.

Based on the foregoing, I dismiss the actions as they correspond to laws no. 9380 and 9383.” Both percentages may, however, be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into consideration by the Conventions (Article 29, paragraphs 1, 3, and 4, of Convention No. 102 and Article 18, paragraphs 1, 3, and 4, of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 percent³ (paragraph 22¹), and recommends in its paragraph 23 that national legislation fix the minimum amount of old-age benefits in order to ensure a minimum standard of living." (The highlighting does not correspond to the original).

Thus, I consider that the premise from which the majority vote proceeds is false, so that the conclusions derived from it are inexorably erroneous.

Now, the sole Article of Law No. 9380 of July 29, 2016, entitled "Contribution Percentage for Retirees and Active Employees for the Special Pension Regimes," regulates:

"In no case may the total deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity-based, and redistributive contribution, represent more than fifty-five percent (55%) of the total amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." For its part, Article 3 in fine of Law No. 9383 of July 29, 2016, entitled "Framework Law on the Special Contribution of the Pension Regimes," establishes:

"In no case may the sum of the special, solidarity-based, and redistributive contribution and the total deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." This limit of 55% of the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since it is not inferred from the arguments of the plaintiffs that its application automatically transgresses the 40% barrier with respect to a reference wage under the terms of Article 67 of that international instrument. In this sense, such a reference wage, in the case of Costa Rica, could be related to the average of the wages used to calculate the amount of a person's pension, which is in accordance with Article 65 of that regulation. It should be noted that the 55% parameter of the challenged laws is related to the gross amount of the pension, while the conventional 40% is related to a reference wage, so these are limits that are applied differently. Therefore, it will be at the level of applying the legal norm that it must be assessed whether, in any specific case, probably concerning very high pensions, the conventional barrier overrides the legal parameter.

In addition, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Dirección General de Servicio Civil) and the 55% limit on deductions from the highest pensions (contemplated by both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact, guarantee more than decent pensions for older adults. In the foregoing sense, I see no arguments demonstrating that the staggered contribution and the imposed charges are openly unreasonable or affect the core of the pension right, for which reason I dismiss any manifest harm to the human dignity of the beneficiaries.

Pertaining to the foregoing, it is not possible to assert that the challenged provisions transgress the international protection enjoyed by older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a decent standard of living.

Thus, I consider that, with the elements contributed to the case file, Laws Nos. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscatoriness, nor do they transgress the special protection enjoyed by older adults.

Similarly, even though a transgression of the principle of administrative responsibility is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause harm to persons, for which I prima facie dismiss this claim.

In relation to the claim regarding the non-retroactivity of the norms, the majority extensively cites ruling No. 2018-19030 of 5:15 p.m. on November 14, 2018. In this regard, I must mention that, certainly, in that resolution, I dissented in the following terms:

"Dissent of Magistrate Rueda Leal. With the customary respect, I dissent on three specific issues, as I state below.

The first relates to the interpretation rendered by the majority ruling. According to it, the reform to Article 3 of Law Number 7605 is applicable only to persons who had obtained the right to a pension or retirement after the entry into force of Law 7858. According to this criterion, the application of the ceiling established in that norm to persons retired before its entry into force infringes the principle of non-retroactivity of constitutional Article 34.

Upon reading the ruling in question, the relevance of determining the legal nature of the right to a pension or retirement stands out. Indeed, contrary to the recommendation provided by the Procuraduría General de la República —which leans towards the doctrine of acquired rights—, the Chamber defined that the pension or retirement is a consolidated legal situation and, in that regard, deemed it to be within the scope of application of the principle of non-retroactivity. Based on this criterion, the Chamber reached the aforementioned conclusion and interpreted the effects of the challenged norm.

Regarding the nature of the pension or retirement, I stated the following in ruling No. 2018-5758 of 3:40 p.m. on April 12, 2018:

'…I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension can be modified or limited due to reasons of public interest that are supported by technical studies, such as the very viability of the regime or fund, as long as such modifications do not affect its core content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides which one cannot fail to note the essential differences between the historical moment when it was agreed (year 1952), and the current juncture, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Centro Centroamericano de Población of the UCR, life expectancy at birth in Costa Rica is 59.61 years in the year 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman drops from 6.46 in the year 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same sense, according to the World Bank, life expectancy at birth in Costa Rica is 60.58 years in the year 1960 and reaches 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica is 6.5 children for the year 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).' The legal nature of this type of retirement or pension —which is not of individual capitalization— derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis of such an assertion is found in the Political Constitution:

'ARTICLE 50.- The State shall strive for the greatest well-being of all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. (…)

ARTICLE 74.- The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that the law may indicate; they shall be equally applicable to all factors concurring in the production process, and regulated in social and labor legislation, in order to promote a permanent policy of national solidarity.' As stated, this constitutional regulation has been developed by the Chamber in order to delineate the principle of solidarity. A good example of this development is the following:

'III.- On the principle of solidarity. A proper reading of our constitutional text necessarily leads to the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop fully on his own, but requires the participation of all other members of society for this. In fact, expressly, constitutional Article 50 imposes upon the Costa Rican State as one of its fundamental duties the pursuit of an adequate distribution of wealth, an objective that cannot be achieved without the assistance of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who possess less. The foregoing is a fundamental right of persons occupying the lower strata, and a duty of all, mainly those most benefited by the economic system. Wealth in a society is not produced only by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not redound solely in favor of certain social classes. Linking this principle with that of social justice, positivized in Article 74 of the Constitution, according to which persons must collaborate reciprocally in order to preserve the human dignity of all members of the community, we have that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals stood above individual interests; it is what is normally known as a social and democratic State under the rule of law. It could thus be affirmed that solidarity among the members of the community is a principle of constitutional rank, which would validly legitimize the imposition of certain charges in favor of a just redistribution of wealth. (See in this same sense the rulings of this Chamber numbers 1441-92, 5125-93)' (Ruling No. 3338-99 of 6:45 p.m. on May 5, 1999).

Based on these premises, I consider that the analysis of the action of unconstitutionality must be carried out from another perspective, different from that adopted by the majority vote. Indeed, I verify that the ruling only partially assessed the legal elements relevant to the decision, since it focused solely on the reproach of the plaintiff, related to the principle of non-retroactivity, without further reflection on the elements necessary for a pension regime to be sustainable and conform to the principle of social solidarity. In my opinion, a comprehensive and thorough analysis of the legal question posed must be carried out, in order to avoid an inadequate extension of constitutional principles, as happened in this case with the principle of non-retroactivity. In other words, the Chamber should have first analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.

In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it is sustainable and respects the principle of social solidarity. In other words, if the legislator conceived of an unsustainable regime, without any type of provision to maintain its budgetary balance, or one that is openly regressive, then such a regime would be unconstitutional specifically regarding such omission for failing to comply with the indicated postulates.

From the foregoing, I derive that the principle of social solidarity and that of the regime's sustainability are inherent in every social pension regime from the moment of its creation and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State under the Rule of Law.

The need for the regime to be sustainable is not an element available to the legislator, but a requirement imposed also by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis that a pension regime might collapse:

'For this Tribunal, only in an extraordinary case —a financial debacle of the State or of the respective retirement and pension regime—, duly proven —by the technique of controlling the determining facts—, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that is not present in this case despite the fiscal crisis the central government is undergoing —a fiscal deficit exceeding 3% of the G.D.P. and which could reach 7%—, provided that if adequate and effective measures are adopted to reduce said deficit in the short term, it is possible to comply with the constitutional principle of financial balance enshrined in constitutional Article 176.' In other words, the majority criterion does accept legislation contrary to the principle of non-retroactivity in the case of a 'debacle.' I consider such a contradiction unnecessary because I proceed from the premise that sustainability is an inherent principle of every solidarity-based pension regime and obliges its participants —all of them— to contribute to its maintenance. Indeed, the sustainability of the regime permeates the legal nature of the pensions and retirements linked to it. The hypothetical case posed by the majority of this Chamber clearly exemplifies such linkage. The satisfaction of the pension or retirement is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the 'debacle,' then all its participants will see their claims frustrated. Hence, it is feasible —even necessary— to modify the conditions of all pensions or retirements, as long as the modifications are aimed at protecting the sustainability of the regime and respect the principle of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of content by a subsequent reform.

In the sub iudice, the challenged norm sets a ceiling that comes into operation only when a situation of risk for the regime arises, since it would be applicable when '…the income from state, worker, and employer contributions is less than the expenditures derived from the payment of benefits…'. I highlight that this ceiling is extraordinary and requires the verification of these technical assumptions for its application. Likewise, it is relevant that its application parameter is linked to the sustainability of the pension regime, fulfilling the postulates previously explained.

Given the legal nature of pensions and retirements, the foregoing considerations lead me to conclude that it is constitutionally valid that, in accordance with the principle of social solidarity, when a pension regime finds itself in a financial sustainability crisis, in order to resolve that situation, ceilings based on technical studies be applied both to those who obtained the right to a pension or retirement prior to the entry into force as well as to those who did so subsequently.

I conclude this argument by noting that constitutional Article 34 does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In this sense, new legislation could not be enacted to seek the recovery of what was paid justly based on the repealed legislation.

The second point relates to Article 3 bis of Law No. 7605, which excepts from the application of the ceiling of Article 3 the beneficiaries of Law 7007 and those who postponed their retirement. On this point, I return to the explanation provided above. All participants in a pension regime must contribute to its sustainability; added to this, the established ceiling is extraordinary and applicable only when the technical conditions previously indicated arise; otherwise, such ceiling would not be applied.

Based on these premises, I believe that the exceptions established in Article 3 bis cited constitute a violation of the right to equality in relation to the principle of social solidarity. No legally plausible justification is observed for exempting the subjects contemplated therein from their duty to contribute to the sustainability of the fund for the sake of social solidarity. I reiterate that the sustainability of the pension or retirement regime falls on all its participants. If a regime is unsustainable from a financial standpoint, it becomes unconstitutional for certain beneficiaries not to contribute, without some valid reason justifying it. For the foregoing, I declare the action admissible with respect to that aspect." In the sub examine, the majority again recognizes that the regulations may have retroactive effects in the event of an economic "debacle"; however, as I maintained in the dissenting opinion cited supra, sustainability is a principle inherent to every solidarity-based pension regime and obliges all its participants to contribute to its maintenance. This is the main aspect to consider when analyzing norms such as those challenged here.

If, according to the Ministry of Finance, out of every 100 colones, 90 are financed through taxes or debt, the special pension regimes charged to the National Budget suffer from clear financial sustainability problems. In addition, if it becomes insolvent or if the State loses its capacity to fulfill its obligations, then all its participants will see their claims frustrated. Hence, it is feasible to levy contributions on pensions or retirements with higher benefits and even to modify their conditions, as long as the adjustments are aimed at protecting the sustainability of the regime and respect the principle of reasonableness and proportionality in relation to social solidarity.

In the sense stated, if a pension financed largely or totally with public funds is unreasonably high (with disproportionate amounts and increases), it is justified for laws to seek the adjustment of such benefits in order to safeguard the right to a dignified existence for all pensioners. As long as the imposition of contributions and charges on old-age pensions and retirements respects the conventionally established percentage (Article 67 of ILO Convention 102), a priori, there would be no transgression of Constitutional Law. It must be taken into consideration that, as accepted by the majority of the Chamber, the country's economic situation is complicated and the sustainability of the pension regime is compromised, and therefore, in consideration of the principle of social solidarity, it is essential that those who are in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood as stemming from solidarity toward the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate privilege situations in favor of a group of persons. For this reason, precisely, it is not considered contrary to the principle of non-retroactivity to increase the contribution amounts of pensioners or retirees, provided the guarantees and limits set forth in this dissenting opinion are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights relating to the right of persons to lead a dignified life in their old age, and considers that the percentage of 40%, contemplated in Article 67 of ILO Convention 102 itself, is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectations. However, as I indicated supra, the norm of the international instrument applicable to the specific case is precisely that Article 67, endorsed by the ILO, but not Article 71.2, as it is forcedly interpreted by the majority in the principal ruling. Furthermore, it bears repeating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scale issued by the Dirección General de Servicio Civil, which, according to the Procuraduría General de la República, was ₡2,602,500.00 for the first semester of 2017) and the 55% limit on deductions from the highest pensions (contemplated by both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact on the largest pensions, guarantee more than decent pensions for older adults.

Lastly, even though there are ILO recommendations suggesting half the salary as a pension in cases where thirty effective years of contribution are accredited, it is no less true that, on the one hand, such provisions are not binding in nature (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose mandatory nature is unquestionable) does expressly contemplate a percentage that must be respected for the purposes of the pension in cases of old age (40% of a reference wage), hence the direct application of the international instrument in the sub lite is appropriate.

Based on the foregoing, I dismiss the actions insofar as they relate to Laws Nos. 9380 and 9383." (…).

In addition, I clarify that, in ruling No. 2024006250 of 4:30 p.m. on March 6, 2024 (likewise mentioned by the majority as support for the declaration of unconstitutionality), I dissented and declared the actions inadmissible, so I did not pronounce on the alleged unconstitutionality of Law No. 9796.

Now, regarding this action, I observe that the Chamber, by majority, maintains the criterion of applying Article 71.2 of ILO Convention No. 102 to adapt it to the specific case and fix a maximum percentage of 50%, thus overlooking the existence of Article 67 of the international instrument, which specifically regulates matters relating to the limitations that can be imposed on pensions. Note, moreover, that Article 71.2 refers to the percentage of insurance contributions payable by employees in relation to the total resources destined for that protection; that is, such a provision regulates "employees" (the economically active population) and not "pensioners or retirees." Ergo, in a manner consistent with the line I have maintained, I see no unconstitutionality in Article 5 of Law No. 9796, since it was not demonstrated that it automatically exceeds the barrier of 40% of a reference wage, established in Article 67 of ILO Convention C102. Note that the parameter of 55% in the challenged article refers to the gross amount of the pension, while the conventional 40% refers to a reference wage, so it falls to the scope of the application of the legal norm to assess whether, in any specific matter, the barrier established in the international instrument overrides the parameter set in the legislation. Consequently, I see no arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right, for which reason I prima facie dismiss any violation of the rights to retirement and social security, as well as the principle of non-confiscatoriness.

On the other hand, in consideration of the provisions set forth in resolution No. 2021-11957 of 5:00 p.m. on May 25, 2021, the dismissal of the claims raised regarding double taxation is founded, as well as the alleged transgression of the principles of non-retroactivity; legal certainty; equality; reasonableness and proportionality; and solidarity. In this regard, I must mention that on that occasion (except with respect to the legislator's omission to include the gender perspective) I concurred with the dismissal arguments put forward by the majority (which is why I agree with the claims dismissed in this action); however, I must specify that I recorded the following note in that ruling:

"Note from Magistrate Rueda Leal. In the sub iudice, I clarify that, apart from my dissenting opinion, while I share the Majority's criterion insofar as dismissing the claims made by the plaintiffs, I find it fundamental to set forth the following specific clarifications regarding the reasoning for arriving at such a conclusion.

1- Regarding ruling No. 2018005758 of 3:40 p.m. on April 12, 2018, cited in the principal vote.

This resolution is cited constantly in the principal pronouncement of this proceeding, hence I consider it appropriate to note what I recorded on that occasion:

'XXII.- Note from Magistrate Rueda Leal. Concerning the publication of the substitute text of September 13, 2016, I agree with the majority vote, since according to reiterated constitutional jurisprudence —which I fully believe is inappropriate to deviate from (2017-019636, 2017-003262, 2016-018351, 2016-012413, 2015-001240, 2014-018836, 2012-013367, 2014-003969, 2013-013344, 2012-017705, 2012-015840, 2012-002675, 2011-015968, 2011-015655, 2011-014966, 2011-012611, 2011005274, 2011-005268, 2011-000992, 2011-000905, 2010-016202, 2010-012026, 2010-007630, 2000-010136, among many other rulings)—, facultative consultations on constitutionality are restricted to analyzing what is specifically challenged by the consultative parties, without the Chamber, in this procedural avenue, extending constitutional control motu proprio to other topics. Thus, regarding the claim raised, the reasoning outlined in this pronouncement responds to the cited jurisprudential line and is correct, which is why I subscribe to it.

On the other hand, I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension can be modified or limited due to reasons of public interest that are supported by technical studies, such as the very viability of the regime or fund, as long as such modifications do not affect its core content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides which one cannot fail to note the essential differences between the historical moment when it was agreed (year 1952), and the current juncture, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Centro Centroamericano de Población of the UCR, life expectancy at birth in Costa Rica is 59.61 years in the year 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman drops from 6.46 in the year 1952 to 1.83 in 2010.'" (and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica is 60.58 years in 1960 and reaches 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica is 6.5 children in 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR)." 2.- On the unsustainability of the Pension and Retirement Regime of the Judicial Branch and the need to reform it.

In this regard, I note that, faced with the imminent insolvency problem of the Pension and Retirement Regime of the Judicial Branch, the legislator was obligated to take the necessary measures to guarantee its sustainability. Likewise, it is fundamental to consider that the principles of sustainability and social solidarity are inherent in any social pension regime, and therefore must be weighed when assessing the constitutionality of the provisions that reformed the regime. In that sense, I reiterate my dissenting vote to judgment No. 2018-19030 of 17:15 hours on November 14, 2018 (which I also cited in my dissenting vote to judgment No. 2020019274 of 16:30 hours on October 7, 2020):

"Dissenting vote of Judge Rueda Leal. With the customary respect, I dissent on three specific issues, as I state below.

(...)

Regarding the nature of the pension or retirement, I stated the following in judgment No. 2018-5758 of 15:40 hours on April 12, 2018:

"...I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited for reasons of public interest that are supported by technical studies, such as the very viability of the regime or fund, provided that such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides which one cannot fail to notice the essential differences between the historical moment when it was agreed upon (year 1952), and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Center for Population of the UCR, life expectancy at birth in Costa Rica is 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman drops from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica is 60.58 years in 1960 and reaches 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica is 6.5 children in 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR)." The legal nature of this type of retirement or pension – which is not of individual capitalization – derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:

"ARTICLE 50.- The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. (...)

ARTICLE 74.- The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that are indicated by law; they shall be equally applicable to all concurrent factors in the production process, and regulated in social and labor legislation, in order to procure a permanent policy of national solidarity." As stated, this constitutional regulation has been developed by the Chamber in order to delineate the principle of solidarity. A good example of this development is the following:

"III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily entails the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop fully on his own, but rather requires the participation of all other members of society to do so. In fact, expressly, constitutional numeral 50 imposes as one of the fundamental duties of the Costa Rican State the pursuit of an adequate distribution of wealth, an objective that cannot be achieved without the assistance of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who have less. The foregoing is a fundamental right of people occupying the lower strata, and a duty of all, mainly those most benefited by the economic system. Wealth in a society is not produced only by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not redound only in favor of certain social classes. Relating this principle to that of social justice, positivized in ordinal 74 of the Constitution, according to which people must collaborate reciprocally in order to preserve the human dignity of all members of the community, we have that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals was above individual interests; it is what is normally known as the social and democratic State of Law. It could thus be affirmed that solidarity among the members of the community is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense judgments of this Chamber numbers 1441-92, 5125-93)" (Judgment No. 3338-99 of 18:45 hours on May 5, 1999).

Based on these premises, I consider that the analysis of the unconstitutionality action must be carried out from a different perspective, distinct from the one adopted by the majority vote. Effectively, I verify that the judgment only partially assessed the legal elements relevant to the decision, since it solely concentrated on the objection of the claimant, related to the principle of non-retroactivity, without further reflection on the elements necessary for a pension regime to be sustainable and in accordance with the principle of social solidarity. In my opinion, a comprehensive and inclusive analysis of the legal question raised must be carried out, in order to avoid an inadequate extension of constitutional principles, as happened in this case with the principle of non-retroactivity. In other words, the Chamber should have first analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.

In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it was sustainable and respected the principle of social solidarity. In other words, if the legislator conceived an unsustainable regime, without any type of provision to maintain its budgetary balance, or openly regressive, then such a regime would be unconstitutional specifically regarding such omission for failing to comply with the indicated postulates.

From the foregoing, I derive that the principle of social solidarity and that of the regime's sustainability are inherent in every social pension regime from the moment of its creation and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State of Law.

The need for the regime to be sustainable is not an optional element for the legislator, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield before the hypothesis that a pension regime collapses:

"For this Court, only in an extraordinary case – a financial debacle of the State or of the respective retirement and pension regime -, duly proven – technical control of the determining facts -, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that is not present in the instant case despite the fiscal crisis the central government is going through – a fiscal deficit exceeding 3% of G.D.P. and which could reach 7% -, since if adequate and effective measures are adopted to reduce said deficit in the short term, it is possible to comply with the constitutional principle of financial balance enshrined in constitutional numeral 176." In other words, the majority opinion would accept legislation contrary to the principle of non-retroactivity in the case of a "debacle." I consider such a contradiction unnecessary because I start from the premise that sustainability is a principle inherent to any solidary pension regime and obligates its participants – all of them – to contribute to its maintenance. Effectively, the sustainability of the regime permeates the legal nature of the pensions and retirements linked to it. The hypothetical case raised by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the pension or retirement is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the "debacle," then all participants in it will see their claims frustrated. Hence, it is feasible – even necessary – to modify the conditions of all pensions or retirements, provided that the modifications are intended to protect the regime's sustainability and respect the principle of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of content by a subsequent reform.

(...)

I conclude this argument by noting that constitutional article 34 does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek recovery of what was paid justly based on the repealed legislation." 3.- Regarding Considerando XV.

In relation to the defect that the processing of the bill was not suspended for the period of eight business days according to the special procedure, I note that I indeed signed judgment No. 2012004621 of 16:00 hours on April 10, 2012, in which the following was highlighted: "The duty of the various legislative bodies to adhere, zealously and scrupulously, to the special procedure previously designed (...) Consequently, before a special and fast legislative procedure, the previously established deadlines, stages, and requirements must be the object of a restrictive and rigorous interpretation, with the margin of admissible flexibility in the face of ordinary procedures, through extensive interpretations, diminishing notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by an aggravated majority." (Emphasis does not correspond to the original). Precisely, the fact that the referred margin diminishes notably does not mean that there is no margin at all. Now, in the sub lite, according to the reasoning of the majority vote, we are not facing a defect of such magnitude as to sustain a lack of constitutional relevance, with which I agree, since, I reiterate, even in the special procedures in question, although with less room, constitutionality control always allows a distinction between substantial defects and those that are not.

4.- Regarding Considerandos XLV, XLVI, and XLVII.

As for the nature of the special, solidary, and redistributive contribution, the final wording of the majority vote cites jurisprudence, according to which it is not assimilable to a tax (tributo), and concludes that it is a constitutionally valid limitation on the right to retirement, arising from the social character of that right. It then mentions that it is not a tax (impuesto), but a parafiscal charge. It also indicates that, as a contribution to social security, it is a parafiscal contribution imposed by the State in the exercise of its sovereign power, which can only be created through a formal law. It likewise points out that it is a tax (tributo) destined for an economic and social purpose.

In this regard, I must mention that, for the purposes of this unconstitutionality action, my position is that the special, solidary, and redistributive contribution is of a parafiscal nature and constitutes a type of tax (tributo). Precisely, it is mandatory payment for those who fall under the assumption of the norm and, according to numeral 236 bis of the Organic Law of the Judicial Branch, the resources obtained from it enter the Pension and Retirement Fund of the Judicial Branch, that is, the same fund to which the taxpayers belong. Furthermore, this type of contribution must be legally enabled, so the Legislative Assembly is competent to establish the tax (tributo) and define its elements.

On the other hand, although it is alleged that there is double taxation with the general contribution and the special, solidary, and redistributive contribution, I clarify that the latter progressively taxes only the highest pensions and retirements, with which it is intended to give sustainability to the regime to which they belong. In that sense, I consider that a priori it is not a case of double taxation, but rather the establishment of an additional tax burden on those who have greater economic capacity. While both figures form part of the income of the Pension and Retirement Fund of the Judicial Branch, it is no less true that they are based on different assumptions: on one hand, there is the general contribution of the pensioner or retiree to the regime and, on the other, the contribution that must be paid by those who have the highest pensions. In that sense, numeral 71.1 of ILO Convention C102 - Convention concerning Social Security (minimum standard) - states that the cost of the benefits granted in application of this convention and the administrative expenses thereof "shall be borne collectively by way of insurance contributions or taxation, or by both means at the same time, in such a way as to prevent persons of modest means from bearing a burden that is too onerous and to take into account the economic situation of the Member and the categories of protected persons." In other words, that international instrument enables the financing of the regime by two means at the same time, so that lower-income persons are not burdened with excessively onerous charges. Ergo, it is appropriate, in addition to the general contribution of working and retired persons, to impose a parafiscal tax burden intended to tax only the highest pensions and retirements that were granted under much more beneficial prior conditions.

In addition, I must clarify that, for the purposes of varying the conditions of a pension regime and assigning special contributions to correct some insolvency situation, it is indeed necessary to demonstrate through technical studies its insolvency and the suitability of the corrective measures. The foregoing is essential, except in the case of benefits provided in norms that are absolutely and manifestly unconstitutional, in which case the magnitude of the defect warrants the suppression of the provision without recognizing rights. In this sense, legal provisions that are clearly unlawful from their foundation cannot be perpetuated, for example, such as a lifetime pension for the sons and daughters of legislators or receiving absurd and exorbitant benefits. In these latter scenarios, I have affirmed that their effects should be considered just as non-existent for the legal system from the very moment of their creation. On this topic, I gave different reasons in judgment No. 2020019274 of 16:30 hours on October 7, 2020, in these terms:

"V.- Different reasons regarding the substantive claims related to Laws No. 9381 and 9388. Before examining the substantive arguments, it is important to be clear that what these norms do is eliminate the annual 30% increase that a restricted group of pensioned persons had been enjoying, and change it for one based on the increase in the cost of living. Precisely, the crux of the matter consists of defining whether such a reform is in accordance with the Law of the Constitution.

In the first place, I estimate that the annual 30% increase enjoyed by some persons under the regime known as Hacienda-Diputados, in itself signifies a gross and impossible-to-justify abuse, an injury to the constitutional order of such overwhelming magnitude, that from its very genesis it constitutes what I call 'a non-existent legal norm' for reasons of unconstitutionality, in mutatis mutandi application of the doctrine of the non-existent legal act due to legality issues, a position sustained by a relevant sector of legal science.

As occurs in the sub examine, thanks to the particular gravity of the violation of the constitutional order regarding the especially excessive privilege that has been conferred upon a specific group (no less than an annual 30% increase in pensions without any consideration of the state of the economy and the real value of the pension conferred), I consider that we are not faced with the mere nullity of a regulation due to a common jurisdictional declaration of unconstitutionality, but rather that, in this extraordinary situation, the restoration of the constitutional order demands a much more drastic action than simple nullity. Non-existence designates a profoundly gross unconstitutionality of the challenged norm (even, in another proceeding, it could refer to an act), an extreme degree of nullity on grounds of unconstitutionality from which the absence of an essential element is noted at the very moment of the emergence of the norm subject to the action.

Precisely, due to this extreme defect in the very genesis of the norm, it is improper to preserve the effects derived from manifestly unconstitutional, unreasonable, and lacking-any-justification legal provisions, such as the economic favoritisms granted against the most basic elements of social justice and the sustainability of a pension regime. These are provisions that are clearly unconstitutional at their base, by virtue of which the excessive privileges granted by them must be considered as legally non-existent.

The foregoing becomes even more evident and notorious in the face of the country's harsh economic reality and the conditions of the other regimes. Hence, a legal reform that changes that fixed revaluation method for one based on objective criteria, such as the increase in the cost of living, not only corrects an excessive and definitively unconstitutional privilege due to a violation of the principle of sound management of public funds, but also contributes to social justice.

Following the same line of my dissenting vote in judgment No. 2018-19030 of 17:15 hours on November 14, 2018 (which I cited supra) and the reasoning I developed above regarding the principle of non-retroactivity, I consider that sustainability is a principle inherent to any solidary pension regime. Hence, I consider it constitutionally valid, in accordance with the principle of social solidarity, that burdens be imposed and the conditions of the highest pensions or retirements be modified, provided that the adjustments have the purpose of safeguarding the sustainability of the pension regime and, in addition, both the principle of reasonableness and proportionality and the fundamental right to human dignity of older adults are respected. Note that, as a matter of principle, it is valid that, through a pension or retirement increase mechanism, the benefited person's pension maintains its value in real terms in relation to purchasing power and the vicissitudes over time, but not that the pension or its increase methodology serve as an instrument to unjustifiably and whimsically enrich a few persons.

In the sub lite, it cannot be unreasonable or disproportionate to eliminate a grotesque and excessive privilege such as the annual 30% increase. On the contrary, what is completely unreasonable and disproportionate is to safeguard an increase of such magnitude for a restricted group of persons. It is important to underline that, concerning the amounts of the pensions, as I indicated in the preceding considerando, the legislator, through other norms, set minimums exempt from the special contributions and a gradual scale of progressive impact, which, from my perspective, guarantees more than dignified amounts to older adults, especially in the cases of those who benefited from annual 30% increases over time and have the highest pensions. In that sense, if the laws that modify the legal situations of the beneficiaries safeguard the dignity of the person while being proportional, reasonable, and justified, a supposed immutability of the legal system by resorting to consolidated legal situations is unsustainable, because these must yield before the principles of social solidarity and sound management of public funds. Based on the foregoing, the legislator has freedom to regulate the pension adjustment mechanisms for regimes that are in a sustainability crisis or grant openly disproportionate and grotesque privileges." Likewise, I must specify that, as I stated in my dissenting vote to Considerando XLI of this pronouncement, the 50% limit indicated by the Majority as the maximum limit for contributions and deductions was based on a forced interpretation of numeral 71.2 of ILO Convention C102, since article 67 of that international instrument is the one that applies to pension reductions.

In this sense, ordinal 71.2 regulates:

"2. The total of insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and of their spouses and children. In order to ascertain whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefits and benefits in respect of employment injuries and occupational diseases, if these latter are provided by a special branch." For its part, ordinal 67 of the convention states:

"Article 67 In respect of any periodical payment to which this Article applies:

(a) the rate of the benefit shall be determined according to a prescribed scale or a scale fixed by the competent public authorities in conformity with prescribed rules; (b) the rate of the benefit shall not be reduced except to the extent by which the other resources of the family of the beneficiary exceed prescribed substantial amounts or amounts fixed by the competent public authorities in conformity with prescribed rules; (c) the total of the benefit and of the other resources, after deducting the substantial amounts referred to in subparagraph (b), shall be sufficient to maintain the family of the beneficiary in health and decency, and shall be not less than the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of benefits paid under the Part concerned exceeds by at least 30 per cent the total amount of benefits which would be obtained by applying the provisions of Article 66 and of the following:

(i) subparagraph (b) of Article 15 for Part III; (ii) subparagraph (b) of Article 27 for Part V; (iii) subparagraph (b) of Article 55 for Part IX; (iv) subparagraph (b) of Article 61 for Part X.

SCHEDULE TO PART XI. PERIODICAL PAYMENTS TO STANDARD BENEFICIARIES:

Consequently, as can be observed from reading the cited numerals, in the wording finally made by the Majority, the legal-normative meaning of numeral 71.2 is unnecessarily changed to adapt it to the specific case and set a maximum percentage of 50%, thus obviating the existence of ordinal 67 of the international instrument which timely regulates what pertains to the limitations that can be imposed on pensions. In addition, note that article 71.2 refers to the percentage of insurance contributions borne by employees in relation to the total resources allocated to that protection; that is, this norm regulates "employees" (economically active population), but not "pensioners or retirees." Based on the foregoing, consistent with the line I have been sustaining, it is not established that numerals 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40% barrier of a reference wage, contemplated in ordinal 67 of ILO Convention C102. Furthermore, note that the 55% limit, set in articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross amount of the pension, while the conventional 40% is related to a reference wage, so it is in the sphere of the application of the legal norm where it must be assessed whether, in any specific matter, the barrier contained in the international instrument overrides the parameter provided for in the legislation.

Based on the foregoing, I disagree with the statement in the final version of the Majority to the effect that the contribution is only confiscatory insofar as it exceeds 50% of the charges that a person must bear on his or her pension or retirement, since, as I indicated supra, I consider that the parameter is different and its automatic and evident transgression by the content of numerals 236 and 236 bis of the Organic Law of the Judicial Branch is not established.

5.- Regarding Considerandos L and LI.

In these considerandos, it is asserted that the contributions and contributions cannot exceed 50% of the gross amount of the pension in accordance with the provisions of judgment No. 2020-19274; however, regarding this point I reiterate my position that the 55% cap regulated in ordinals 236 and 236 bis of the Organic Law of the Judicial Branch is not unconstitutional per se. There, I also addressed the possibility of imposing, in addition to the mandatory contribution to the regime, an additional special contribution on the highest pensions. Consequently, I refer to the reasoning set forth in the preceding section regarding these topics.

Now, it is important to mention that Law No. 9544, by adding article 236 bis, stated that the special contribution applied to the excess above the sum of ten base salaries of the lowest paying position in the Judicial Branch (at the time of this law's entry into force, on pensions exceeding ¢4,138,000.00 according to the salary index, see https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).

Nonetheless, it is worth clarifying that subsection a) of this provision was subsequently amended by Law No. 9796 of December 5, 2019, and established the contribution based on the excess over the sum of six base salaries of the lowest-paid position in the Judicial Branch (as of the first half of 2021, on pensions exceeding ¢2,602,800.00 according to the salary index https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).

In addition, Law No. 9544 regulated the application of the special contribution on a staggered basis: “a) On the excess over the ceiling established in Article 225 and up to twenty-five percent (25%) of said ceiling, they shall contribute thirty-five percent (35%) of such excess. b) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess over the previous margin, they shall contribute fifty-five percent (55%).” Hence, the exempt amount and the staggered contribution imposed on pensions of more than four million colones guarantee more than dignified sums for the satisfaction of the needs of pensioners and retirees, including older adults. Likewise, I consider that the special contribution is progressive and gradual for the highest pensions, without this, together with other contributions, charges, and deductions, being able to exceed 55% of the total gross amount of the pension. In that sense, not only was it not demonstrated that the pension amount prevented pensioners from living with dignity or that it was insufficient, but, moreover, it falls within the scope of the application of the legal provision to assess whether, in any specific matter, the barrier contemplated in the international instrument (numeral 67 of Convention C102 of the ILO) overrides the parameter established in the legislation.

I also reiterate that the special contribution imposed on the highest pensions constitutes a measure in accordance with the principle of social solidarity and, furthermore, is reasonable in view of the imminent insolvency problem that the Pension and Retirement Regime of the Judicial Branch presented.

Lastly, I do not consider that the deduction of five per thousand (5 per 1000) from salaries and pensions intended to finance the operation of the Administrative Board of the Retirement and Pension Fund of the Judicial Branch is openly disproportionate or unreasonable. In the same manner, if any of the parties considers that it exceeds the maximum for contributions and deductions, they may file the corresponding claims so that these may be adjusted.

6.- Regarding Considerando LIV.

Regarding this Considerando, I must emphasize that constitutional numeral 34 enshrines the principle of non-retroactivity and the protection of acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas):

“ARTICLE 34.- No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.” In relation to what is regulated in this provision, the Chamber stated in judgment No. 2765-97 of 15:03 on May 20, 1997, “The concepts of ‘acquired rights’ and ‘consolidated legal situations’ appear closely related in constitutional doctrine. It is possible to affirm that, in general terms, the former denotes that consummated circumstance in which something –material or immaterial, whether a previously foreign asset or a previously non-existent right– has entered (or had an impact on) the person’s patrimonial sphere, so that the person experiences a verifiable advantage or benefit. For its part, the ‘consolidated legal situation’ represents not so much a patrimonial gain, but rather a state of affairs fully defined in terms of its legal characteristics and effects, even if these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still persist or not, but that –by virtue of a legal mandate or a judgment that so declared– a clear and defined rule has already emerged in legal life, connecting a factual premise (conditioning event) with a given consequence (conditioned effect). From this perspective, the person’s situation is given by a logical proposition of the type ‘if…, then…M, that is: if the conditioning event has occurred, then the ‘consolidated legal situation’ implies that the conditioned effect must necessarily also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects –making it intangible– the situation of the one who obtained the right or enjoys the situation, for reasons of equity and legal certainty.” In this regard, it seems important to me to specify that the sums received before the entry into force of Law No. 9544 do constitute acquired rights and, in fact, the challenged provisions do not affect them because they have already entered the patrimonial legal sphere of the pensioners. However, it is inappropriate to maintain that the pensions they have received constitute an acquired right to receive the same amount in future months, since they are not consummated circumstances and, evidently, have not yet entered the person’s patrimonial sphere.

Now, regarding the alleged violation of consolidated legal situations, although, as a principle thesis, the conditions under which people retired or are receiving a pension must be respected, this does not mean that the highest benefits cannot be subject to progressive tax charges intended to correct a situation of insolvency of the regime and thus contribute to its sustainability. Similarly, changing the conditions for active employees to qualify for retirement is not illegitimate either, because they only have an expectation of a pension or retirement, except when they are close to acquiring the right (within the following 18 months, as endorsed by the Chamber’s jurisprudence and indicated in Considerando LXIX of this judgment).

7.- Regarding Considerandos LV, LVI, LVII and LVIII.

These Considerandos address the arguments of the plaintiff parties accusing that the application of provisions 236 and 236 bis of the Organic Law of the Judicial Branch to older adult retirees and beneficiaries of the Retirement and Pension Regime of the Judicial Branch is abusive and arbitrary, since it aggravates their socioeconomic conditions and has implied an abrupt decrease in their income, which violates national and international regulations referring to the protection of older adults, their right to quality of life, and to enjoy a dignified old age.

Regarding these points, I refer to the considerations developed by myself in the previous points related to general and special contributions, as well as other charges. I reiterate that the 50% cap set by the Majority as the maximum limit for contributions and deductions was based on a forced interpretation of numeral 71.2 of Convention C102 of the ILO, since Article 67 of that international instrument is what applies to reductions of pensions. In that sense, it is not established that numerals 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the barrier of 40% of a reference salary, contemplated in ordinal 67 of Convention C102 of the ILO. Observe, moreover, that the 55% limit, established in Articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross amount of the pension, while the conventional 40% is related to a reference salary, so it is within the scope of the application of the legal provision where it must be assessed whether, in any specific matter, the barrier contained in the international instrument overrides the parameter provided in the legislation.

Furthermore, there is no basis to affirm that the challenged provisions violate the international protection enjoyed by older adults, since not only are measures being taken to safeguard the sustainability of the regime, but also, in principle, a sufficient income is being guaranteed to pensioners and retirees. In this sense, I reiterate that the amount exempt from the special contribution and its staggered levy on pensions of more than four million colones contemplates more than dignified sums for the satisfaction of the needs of an older adult.

8.- Regarding Considerando LXX.

As for my criterion for considering the claim for a declaration of unconstitutionality by connection (inconstitucionalidad por conexidad) of Law No. 9796 of December 5, 2019, unfounded, I limit my argumentation to the reasoning set forth in the majority opinion with the exception of what is stated in the last paragraph, since the non-compliance with the procedural prerequisite of the cited Article 89 entails a more than sufficient reason to declare this part of the action without merit.

9.- Concerning Considerando LXXX.

In relation to this Considerando, I clarify that determining whether or not there were changes in the employment contracts of Judicial Branch employees is a matter appropriate to be aired in the ordinary jurisdiction, but not in an acción de inconstitucionalidad.” Hence, based on such clarifications made in my note and without sharing that which contradicts it, or which is based on judgments Nos. 2020-19274 of 16:30 on October 7, 2020, and 2024006250 of 16:30 on March 6, 2024, I agree with the dismissal of the alleged violations of double taxation, as well as the principles of non-retroactivity; legal certainty; equality; reasonableness and proportionality; and solidarity. Finally, I share the reasoning set forth in the judgment of this action, regarding the lack of argumentation by the plaintiff not only on the alleged violation of the principles of solidarity and reasonableness and proportionality, but also regarding the alleged lack of technical studies.

Por tanto:

By majority, the acción de inconstitucionalidad is partially granted. Consequently, the contribution percentage and the special contribution established in ordinal 5 of Law No. 9796 are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person of the Judicial Branch regime. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, as of the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in accordance with this judgment, such that the tax burden on the amount of the retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner. In all other respects, the acción de inconstitucionalidad is dismissed. Judge Rueda Leal issues a dissenting opinion and dismisses the action in its entirety, because, according to the express text of Article 67 of Convention No. 102 of the ILO of 1952 entitled ‘Social Security (Minimum Standards) Convention’, the pension or retirement may be reduced as long as 40% of a reference salary is respected, which is not established as being automatically and evidently violated by the content of Article 5 of Law No. 9796. Let this pronouncement be communicated to the Legislative and Judicial Branches, as well as to the Administrative Board of the Retirement and Pension Fund of the Judicial Branch. Let this pronouncement be published in the Official Gazette La Gaceta and published in its entirety in the Judicial Bulletin. Notify.- Fernando Castillo V.

Executive President Paul Rueda L. Luis Fdo. Salazar A.

Jorge Araya G. Aracelly Pacheco S.

Huberth Fernández A. Ana Cristina Fernández A.

1 [1] As will be explained below, this percentage should be read as 50%, as ordered by this Chamber in Vote No. 2021-11957 at 17:00 hrs. on May 25, 2021.

9796 flagrantly, directly, and grossly attacks said principle.</span><a name=\"_Hlk164868254\"></a><span style=\"font-family:'Times New Roman'\"> They maintain that the relationship between the principle of reasonableness and the principle of equality poses as an essential problem the discernment of a normative decision and how it would allow unequal treatment to be reasonable. That is precisely the question left unresolved by the challenged law, because its basis is inconsistent and even burdensome, in a disproportionate manner, for the sector of judicial retirees, without any phased implementation (gradualidad) that would allow the application of the regulation in a way that respects the stages of permanence in the regime. </span><a name=\"_Hlk164868444\"></a><span style=\"font-family:'Times New Roman'\">They indicate that for a differentiation to be constitutionally legitimate, it is not enough that the purpose it pursues is legitimate; it is also essential that the legal consequences resulting from such a distinction are adequate and proportionate to that purpose, so that the relationship between the measure adopted, the result produced, and the purpose intended by the legislator passes the proportionality test in the constitutional sphere, avoiding results that are especially burdensome or excessive. They maintain that, precisely, the differentiation measure contained in the law is burdensome and excessive, given that the subjects included in it are considerably dissimilar; hence the effects are disproportionate in the strict sense and contrary to the Political Constitution. They mention that the legislator cannot, by ignoring the evident (at least within its reform logic) shortcomings and negligence of the pension fund, size up its solution on the backs of a single generation of workers (today's retirees) and distribute the effects among the related sectors, including the State itself, whose objective responsibility for the control and regulation of this regime was set aside. They add that the regulation under study also contradicts the provisions of constitutional article 34, which clearly states that no law shall be given retroactive effect to the detriment of any person. They maintain that the principle of non-retroactivity is not only formal, but also and above all material, so it is violated not only when a new norm or the reform of a previous one legitimately alters acquired rights or consolidated situations under the protection of the previous norm, but also when the effects, interpretation, or application of the latter produce an unreasonable or disproportionate harm to the holder of the right or situation it enshrines. In this case, the constitutional guarantee of non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing a good or right already acquired from the person's estate. They explain that acquired rights are those that definitively enter the estate of their holder and consolidated legal situations are those that can no longer be modified. They state that, according to constitutional jurisprudence, retirement or pension is technically translated into an acquired right. They allege that the reform established by Law No. 9796 affects the acquired rights of all those who have already contributed and to whom pensions have been granted with the guidelines dictated for the Pension Fund in the Organic Law of the Judicial Branch, and therefore those rights must continue as they were granted before its enactment. They indicate that, otherwise, legally granted rights would be violated, thereby affecting the economic situation, family, security, and quality of life of the majority of older adults who depend on that right for their support. They indicate that, by imposition of the law, pensioners are being brought to lower income levels without considering that a vast majority of these have been people who had to sacrifice time, years of study, and training to obtain an income commensurate with their condition and improve their standard of living. At the whim of State policies and by decision of the Deputies, the socioeconomic situation of these retirees was abruptly affected, equating their condition to quintile 5 as established by the National Institute of Statistics and Censuses of Costa Rica (which excludes pensioners and domestic service). They state that the Deputies, in their discussions, referred to an actuarial study, which points out that pensions should not be granted in amounts exceeding ¢2,600,000.00 colones, but the actuarial study's recommendation is that, in the future, the maximum amount of retirement pensions should be that amount; that is, at no point does the study indicate that the fixing is retroactive. They maintain that the current situation of the granted retirements must be respected, considering acquired rights. On the other hand, they state that the provisions of article 73 of the Political Constitution are violated, which gives pensions and retirements the character of a constitutional right. This is the fundamental right to retirement derived from the social security regime, which cannot be conditioned after its recognition as an acquired right. They warn that the reform to the Judicial Branch's pension regime flagrantly contravenes the principle of legal certainty, which translates into the trust of every citizen in valid and current legal systems, so that this system cannot be disrupted in a way that dissolves their rights. It is one of the fundamental principles of any democratic constitutional legal system, and it refers to the need for citizens to know, at all times, what to expect in their relations with the State and with other individuals. It refers to the trust that citizens can have in the observance and respect of situations derived from the application of valid and current norms. They state that this parameter of constitutionality in pension regimes is part of our legal system and, thus, means </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“protection and trust for all citizens who maintain periods of stay in pension regimes.”</span><span style=\"font-family:'Times New Roman'\"> They indicate that in the case of the reform of the Judicial Branch Pension Fund, this variable is aggravated, as it is a mandatory fund to which workers in the sector must submit regardless of their will, meaning it is the path to follow through which the State has decided to protect their fundamental right to a dignified and just retirement. Within this framework of ideas, the variations imposed by the bill shatter that trust and security of judicial officials in light of the overwhelming difference posed in the reforms, introducing a contribution as a concept of solidarity for the sustainability of the other pension regimes. They point out that this mandatory nature is also abusive and arbitrary (another of the purposes of the principle of legal certainty), insofar as it aggravates the socioeconomic conditions of judicial retirees at its whim and without regard for their rights and expectations. This is because it is a mandatory regime that, freed from any control of legal certainty, would allow the variation of conditions in the most indiscriminate ways, regardless of the retirees' will. This mandatory nature of the regime obliges the State to be much more zealous in the variations made to this type of regimes which, in the specific case, involve the stability and future of more than sixteen thousand Costa Rican families. They note that, in the case of retirees, the situation is extremely burdensome, as they have developed a life project acquiring economic commitments and, suddenly, abruptly, their conditions are modified with severe effects on their economic sphere (esfera patrimonial). They explain that in the challenged law </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…) deduction percentages are set at 35% for those retirements exceeding 6 base salaries of the lowest position in the Judicial Branch, the base is approximately 2,530,000.00 and on the excess 35% is charged, 45% on the excess of 1,200,000.00, and 55% on the excess of 4,200,000.00 (approximate data), percentages set without any technical study, which makes them arbitrary and confiscatory, appropriating monies that by acquired rights belong to the retirees and pensioners</span><a name=\"_Hlk164869992\"></a><span style=\"font-family:'Times New Roman'; font-style:italic\">. Furthermore, it is established that these percentages are applied to gross amounts, which generates a double levy on the monies received by retirees and pensioners, since that deduction is applied on top of mandatory deductions that each retiree and pensioner must pay, such as income tax and the 13% mandatory contribution percentage to the regime, becoming a double tax rate on the same benefit which, from every point of view, is improper and evidences the voracious taxation intended to be imposed on retirements and pensions (…)”.</span><span style=\"font-size:12pt\"> </span><span style=\"font-family:'Times New Roman'\">They state that the Constitutional Chamber has recognized the right to retirement as a fundamental right integrated within the right to social security. They indicate that the same jurisdiction has pronounced on the importance of clearly establishing several constitutional principles such as solidarity, the relative intangibility of assets, and, of course, proportionality and reasonableness. They indicate that the law in question violates the principle of solidarity, since it varies the circumstances for a specific sector of the population with a reform that is not progressive but disruptive, generating poverty and economic impairment (menoscabo patrimonial). They maintain that the right to retirement, as a human right, under the conditions that retirees have been enjoying it, cannot be modified, as it has become an acquired right. They indicate that the reform should have been carried out in a reasoned and proportionate manner and not in a disruptive and abrupt way, that is, disproportionate and abusive of the rights of judicial officials and regime retirees, thereby affecting consolidated legal situations and acquired rights. They indicate that the law in question </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…) violates the principles of non-retroactivity, legal certainty since it violates fundamental rights recognized in Article 7 of our Political Constitution, that is, fundamental human rights, the principle of equality, as well as the principles of reasonableness and proportionality because, on the retirement amount that is used for the retirement calculation, all the deductions and special contributions are applied, reaching more than 55% of the gross retirement amount. This makes these deductions and special contributions unreasonable and absolutely disproportionate, contradicting the human rights treaties and international law subscribed to by our country (…)”.</span><span style=\"font-size:12pt\"> </span><span style=\"font-family:'Times New Roman'\">They point out that, while the principle of mutability of the legal system exists, it cannot go against acquired rights and consolidated legal situations. Moreover, this must be progressive, proportionate, and reasonable. They allege that the reform under study is unconstitutional because </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…) it modifies consolidated situations of Judicial Branch retirees, who see their rights impaired abruptly through a disruptive, disproportionate, and unreasonable reform, which generates a deterioration in the calculation of their retirement, increases the amounts of deductions and special contributions above any other tax burden in our legal system, also calculating the maximum limit of deductions at 55% of the gross retirement, thus making, we insist, the reform disproportionate, unreasonable, abrupt, and placing its members in a situation of open economic impairment (confiscatory), affecting the continuity of life projects, the dignity of retired persons, and legal certainty (…)”. </span><span style=\"font-family:'Times New Roman'\">Finally, they indicate that the regulation in question violates the principle of non-confiscation (constitutional article 40). They point out that this principle constitutes a limit to the exercise of tax power, linked to the principles of ability to pay and progressivity; in addition to representing a protection mechanism for the right to private property. They mention that article 3 of the law speaks of creating a contribution and this, being a tax burden on the retirement amount, has a fiscal nature and, by its structure, has a confiscatory content on the estate of retired judicial officers and those who will retire. Thus, they state that </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…) the reform imposes confiscatory conditions regarding the pension calculation. The calculation is no longer based on 100% of the salaries earned in the last 24 months, but became 82% on the last 240 salaries, according to the law known (sic) as the fiscal combo. That is, a calculation difference of 18 years and a percentage difference of 18%. To the result of that remainder, a contribution increased by 2% must be applied, by the same law it went (sic) from 11% to 13%, from that must be subtracted the (sic) other legal charges, for example income tax, pension fund (contributions continue), and Social Security, leaving a disposable amount below 53% of the calculation base and on the gross retirement amount, this new fiscal charge introduced by the law we challenge must also be calculated, at the rate things are going retirees will not receive any retirement and must also pay the State charges from where only the State knows, since the sole income of retirees is their retirement, how far will state voracity reach. This variation is confiscatory and contrary to our constitutional system, since it subjects Judicial Branch retirees to a penalty of confiscation, expressly prohibited by Article 40 of the Political Constitution (…)”. </span><span style=\"font-family:'Times New Roman'\">They argue that the measures proposed by the reform lead to a reduction in the pension conditions of judicial workers of about 70% of their right, reduced to 55% by the force of the law itself. They indicate that the confiscatory penalty introduced by the law under study violates the principles of equality and ability to pay. They request that articles 1; 2, subsection d); 3; 4, subsection b); 5 and 7; all of Law No. 9796 of December 5, 2019, called “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, and article 236 bis, subsection a), of the Organic Law of the Judicial Branch, be declared unconstitutional. As a precautionary measure, they request that the entry into force of the law being challenged be temporarily suspended until this action is resolved. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">2.-</span><span style=\"font-family:'Times New Roman'\"> By resolution at 10:57 a.m. on May 5, 2020, the President of the Chamber warns the petitioners to provide a certified copy of the statutes of the petitioning cooperative; documentation important for assessing the admissibility of the action. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">3.-</span><span style=\"font-family:'Times New Roman'\"> By brief filed with the Chamber on May 11, 2020, the petitioners comply with the warning issued by the resolution of May 5, 2020, and provide the required certified statutes. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">4.-</span><span style=\"font-family:'Times New Roman'\"> By resolution of the Presidency of the Chamber at 11:37 a.m. on May 12, 2020, this unconstitutionality action is given due course and a hearing is granted to the Procurador General de la República, </span><a name=\"_Hlk164321618\"></a><span style=\"font-family:'Times New Roman'\">to the Minister of Finance, to the Minister of Planning and Economic Policy, and to the President of the Supreme Court of Justice. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">5.-</span><span style=\"font-family:'Times New Roman'\"> By briefs filed with the Chamber on May 15 and 18, 2020, Héctor Luis Ruiz Salas and José Marcelino Silva Silva, in their capacity as retirees of the Judicial Branch, request to be considered active coadjuvants in this proceeding. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">6.-</span><span style=\"font-family:'Times New Roman'\"> The legal notices – corresponding to this unconstitutionality action – were published in Judicial Bulletins Nos. 093, 094, and 095 of May 18, 19, and 20, 2020. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">7.-</span><span style=\"font-family:'Times New Roman'\"> By brief filed with the Chamber on May 25, 2020, Gustavo Adolfo Ramírez Redondo, in his capacity as a retiree of the Judicial Branch, requests to be considered an active coadjuvant in this proceeding. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">8.-</span><span style=\"font-family:'Times New Roman'\"> Through a brief filed with the Chamber on May 28, 2020, Julio Alberto Jurado Fernández, in his capacity as Procurador General de la República, answers the granted hearing and expressly states the following: </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…)</span><span style=\"font-family:'Times New Roman'; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:'Times New Roman'; font-style:italic\">II.- REGARDING THE LEGITIMACY OF COOPEJUDICIAL TO CHALLENGE THE VALIDITY OF THE CHALLENGED NORMS. The resolution that gave due course to the unconstitutionality action which is the subject of this report (issued by the Presidency of the Constitutional Chamber at 11:37 a.m. on May 12, 2020) ordered that \"The legitimacy of the petitioning party comes from Article 75, paragraph 2, of the Law of the Constitutional Jurisdiction, since it claims to act in defense of the corporate interests of the associated persons - active and retired - of Coopejudicial R. L.” Despite the foregoing, this Advisory Body considers that cooperatives, even if they have members who could be affected by the norms challenged in this action, are not legitimized to directly challenge provisions such as those sought to be annulled. Admitting the legitimacy of cooperatives to file unconstitutionality actions against any normative provision that could affect their associates (whether those provisions are related to public employment matters, private employment, retirements, or any other matter) would imply attributing to these associative-based entities purposes not contemplated in the Law of Cooperative Associations, No. 4179 of August 22, 1968. Regarding the purposes of cooperative associations, Articles 1 and 2 of the cited Law No. 4179 provide the following: \"Article 1.- The constitution and operation of cooperative associations is declared of public convenience and utility and of social interest, as it is one of the most effective means for the economic, social, cultural, and democratic development of the country's inhabitants.\" “Article 2.- Cooperatives are voluntary associations of persons and not of capital, with full legal personality, of indefinite duration, and limited liability, in which individuals organize themselves democratically in order to satisfy their needs and promote their economic and social improvement, as a means of overcoming their human condition and their individual formation, and in which the motive of work and production, distribution, and consumption, is service and not profit.” Although the second of the transcribed norms establishes that cooperatives have among their purposes the promotion of the economic and social improvement of their members, this does not legitimize them to question the constitutionality of any provision that harms the latter in their personal sphere, because that would imply excessively relaxing the access of cooperatives to the constitutional jurisdiction. The foregoing is reinforced by the provisions of Article 12, subsection f), of the Law of Cooperative Associations, according to which \"No cooperative is permitted to (...) Carry out activities for which it is not legally authorized.\". This Advisory Body shares what was decided by this Chamber in its judgment No. 2014-20446 at 9:30 a.m. on December 17, 2014, reiterated in No. 7175-2017 at 9:05 a.m. on May 17, 2017, in the sense that cooperatives are legitimized to file unconstitutionality actions</span><span style=\"font-family:'Times New Roman'; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:'Times New Roman'; font-style:italic\">provided that it is the questioning of norms or provisions that affect that core of rights or interests that constitutes the raison d'être and the binding factor of the group\". In this case, the defense of the retirement rights of Judicial Branch officials and former officials does not affect the core of rights or interests that constitute the raison d'être of COOPEJUDICIAL. Nor is that defense related to the binding factor of the group. For that reason, we consider that this action is inadmissible, due to lack of legitimacy of the petitioner. Note even that not all associates of COOPEJUDICIAL are judicial officials or former officials, because that cooperative admits the affiliation of other public officials who have never worked for the Judicial Branch, which confirms that safeguarding the retirement rights of only some of its members cannot constitute the raison d'être of the cooperative (…) III.- ON THE VALIDITY OF THE REFORMS MADE TO THE SPECIAL SOLIDARITY CONTRIBUTIONS IMPOSED ON ECONOMIC BENEFITS FOR RETIREMENT. To analyze the arguments raised by the petitioning cooperative, we have decided to divide them into four groups, according to whether they relate to 1) the principle of equality; 2) the principle of non-retroactivity; 3) the fundamental right to a pension; and, 4) the principles of reasonableness, proportionality, non-confiscation, and intangibility of assets. 1).- On the possible violation of the principle of equality. The petitioner states that Law No. 9796, by reducing the exempt bracket for payment of the special, solidarity, and redistributive contribution applicable to persons retired from the Judicial Branch regime, infringes the constitutional principle of equality, because it does not take into account that those affiliated with that regime make a higher contribution, compared to what is required in other pension regimes, which would justify – in the case of the Judicial Branch regime – maintaining the exempt contribution brackets that existed before the reform sought to be annulled. In this regard, we must indicate that the adjustments to the special solidarity and redistributive contribution referred to in the law whose constitutionality is being questioned were applied to all special substitute pension regimes, addressing the characteristics of each one of them. Among the affected regimes are the General Pension Regime Charged to the National Budget, the National Teachers' Pension Regime, the Communications Retirement and Pension Regime, the Public Works and Transport Employees' Retirement and Pension Regime, the National Registry Pension Regime, the Pacific Electric Railroad Employees' Retirement and Pension Regime, the Military Bands Musicians' Pension Regime, and the Ministry of Finance and its Dependencies Pension Regime, among others. In the opinion of this Office of the Procurador General, it is not possible to resort to the constitutional principle of equality to request that the reforms under study not be applied to the Judicial Branch regime. Certainly, the contribution of those affiliated with the Judicial Branch regime is 13% of their salary, a percentage that is higher than what is contributed by those affiliated with the IVM pension regime, which is 4%; however, the economic benefits of the IVM regime are very different from those of the Judicial Branch regime. For example, the maximum cap for IVM regime pensions is 1,612,851.00 without deferral; while the initial maximum cap of the Judicial Branch pension regime is 4,258,000.00, equivalent to ten times the base salary of the lowest paid position in the Judicial Branch (Art. 225 LOPJ), a salary that in the second semester of 2019 was 425,800.00. The pension granted by the IVM regime ranges from 43% to 52.5% of the average salary of the last 20 years (Article 23 of the IVM Regulation); while the pension granted by the Judicial Branch regime is 80% of the average of the last 20 years of service (Article 224 LOPJ). The solidarity and redistributive contribution applicable to the Judicial Branch regime with the entry into force of the challenged norms starts from 2,554,800.00 (equivalent to six base salaries of the lowest paid position in the Judicial Branch, a salary that as of the second semester of 2019 is 425,800.00), an amount that even the IVM regime pensions cannot reach, whose maximum cap without deferral is – as we indicated – 1,612,851.00. As can be seen from the above data, it is not possible to compare the Judicial Branch regime with the IVM regime to affirm that, by virtue of the higher contribution made to the former, the special solidarity contribution being challenged is not justified. They are different regimes, with benefits and conditions that are also different, so there is no possible comparison that would validate an injury to the constitutional principle of equality. On the other hand, if what is intended is to compare the contribution made to the Judicial Branch regime with that of other special regimes, as is the case, for example, of regimes charged to the national budget administered by the National Directorate of Pensions, we must point out that the contribution to the latter is 16% of the worker's salary (Article 11 of Law No. 7302 of July 8, 1992), which exceeds the 13% contributed to the Judicial Branch regime. This is so, despite the fact that the special solidarity contribution imposed on special regimes charged to the national budget starts from 2,226,000.00 (8 times the lowest base salary paid in the Public Administration, which in the second semester of 2019 was 278,250.00), an amount that is less than the 2,554,800.00 (6 times the lowest salary paid in the Judicial Branch, which in the second semester of 2019 was 425,800.00) at which the Judicial Branch regime contribution starts. It must also be taken into account that the State, as employer, contributes 14.36% of the salary of judicial officials to the Judicial Branch regime; while to the general IVM regime and to the special regimes charged to the national budget, it contributes only 5.25% of the salaries of its affiliates. That situation shows that far from there being discriminatory treatment to the detriment of the Judicial Branch regime, there are provisions that favor that regime, and that imply a greater expenditure by the State on its maintenance.

It is important to note that while this Chamber has admitted the existence of special pension regimes that substitute the IVM regime, it has also repeatedly held that for the validity of such regimes it is necessary that “1) the contribution of the State as such be equal in percentage terms on salaries for all regimes, including those of private enterprise; and 2) the contribution of the State as an employer in the various regimes not be greater than that imposed on other employers, including private employers, nor in any case less than that of all public servants or workers.” This was upheld in judgment No. 846-92 of 1:30 p.m. on March 27, 1982, and reiterated in judgments 5236-99 of 2:00 p.m. on July 7, 1999, 5753-99 of 10:36 a.m. on July 23, 1999, 6987-99 of 4:21 p.m. on September 8, 1999, and in 3052-2000 of 9:28 a.m. on April 14, 2000. The foregoing is important to demonstrate that the greater contribution made by the State as an employer to the Judicial Branch regime (equivalent to almost ten percentage points more than what it contributes to other regimes) not only evidences that there is no discriminatory treatment to the detriment of that regime, but also that this greater contribution could contradict precedents of this Chamber. In summary, this Advisory Body does not consider that there are reasons to affirm that the challenged rules are unconstitutional for violating the principle of equality to the detriment of the members of the Judicial Branch regime. 2.- Regarding the possible violation of the principle of non-retroactivity. With respect to this matter, we must indicate that in our system, various special pension regimes substituting the IVM regime have been created through legislation. The existence of these special regimes has been repeatedly endorsed by this Chamber, for example, in its judgment number 846-92 already cited. Based on the foregoing, this Office of the Attorney General (Procuraduría) has indicated that the Legislative Assembly has not only the possibility, but the duty, to adopt the necessary measures to guarantee the sustainability of the various special pension regimes, through the approval of the laws necessary to achieve that objective. We have also pointed out that within the limits imposed on the legislative power to regulate special pension regimes is that of respecting the acquired rights and consolidated legal situations of the beneficiaries of those regimes; however, with specific regard to the law under analysis, this Office of the Attorney General does not observe that the challenged rules entail a violation of the principle of non-retroactivity of the law, since the changes in the solidarity and redistributive contribution established in Law No. 9796 govern for the future, and do not carry the obligation to return sums received previously, and therefore there is no injury to the principle of non-retroactivity. This Chamber has already addressed the matter in the following terms: “The appellants argue that the exception rules are given retroactive effect and that the acquired rights of that group are affected, specifically, the amount they receive as a pension or retirement benefit, which has been diminished by the establishment of a contribution. They also point out that this additional burden breaks the ‘tripartite and egalitarian’ balance enshrined in constitutional provision 73. In the Chamber’s opinion, the reproach of retroactivity is unfounded, because the law, perhaps with deficient technique, has established the obligation of contributions by pensioners and retirees ex tunc and not ex nunc, since they are in no way being obligated to make such contributions on monies already received as a retirement or pension benefit. For the future, the rules are different and the amount of the contribution, which aims to compensate for past imbalances and guarantee the survival of the system, in no way affects acquired rights, because this same Chamber has expressed that there is a fundamental right to a pension or retirement benefit, but not to the amount thereof, which could vary depending on the system’s requirements, provided that such variations do not affect the essential content of the right.” (Judgment number 5236-99 of 2:00 p.m. on July 7, 1999. In the same vein, see judgment No. 6987-99 of 4:21 p.m. on September 8, 1999). Likewise, this Office of the Attorney General has indicated that the administration of any social security regime requires flexibility to adequately channel the limited resources available and that such flexibility is affected when the legislator is inhibited from modifying both the initial conditions and the benefits being paid. Based on this, it is not possible to admit that the rules that established the conditions of a given regime be petrified, as this could even lead to the collapse of a country’s Social Security system, which would harm not only persons who have already attained pensioner status, but also those who have justified expectations of obtaining future economic benefits from Social Security—when one of the protected contingencies arises. (Legal Opinion C-147-2003 of May 26, 2003, reiterated in &181-2006 of May 15, 2006, in 00-021-2007 of March 9, 2007, and in 03-082-2015 of August 3, 2015). 3.- Regarding the possible violation of the fundamental right to a pension. Although there is a fundamental right to a pension, widely consolidated in the jurisprudence of this Chamber, this Court has also specified that there is no right to a benefit being granted in a specific amount, since a pension or retirement benefit can be varied according to circumstances, whether to reclassify the benefit by increasing or decreasing it, when the beneficiaries’ contribution is not sufficient to cover their share in the cost of the regime… ". (Judgments 1925-91 of 12:00 p.m. on September 27, 1991, 2379-96 of 11:06 a.m. on May 17, 1996, and 3250-96 of 3:27 p.m. on July 2, 1996). In the specific case of special contributions, this Chamber, in its judgment No. 3250-96 of 3:27 p.m. on July 2, 1996, indicated that such contributions are not unconstitutional, as they find their basis in the social nature of the right to retirement, a nature that falls within the principles that make up the Social State of Law, enshrined in Article 50 of the Political Constitution. In the aforementioned resolution, this Chamber ratified the validity of a contribution imposed on pensioners of the National Teachers’ (Magisterio Nacional) regime. On that occasion, it stated the following: “(…) the contribution established for pensioners of the National Teachers’ Pension Regime in Article 12, and the exclusion from said contribution made as an acquired right in Transitional Provision I, both of Law Number 7268, do not violate Article 34 of the Political Constitution, as they form part of the set of limitations that have validly formed part of the fundamental right to retirement held by the plaintiff since his entry into the system and from which he cannot withdraw because he acquired them together with that right. (...) The manner in which Article 12 of Law 7268 regulates the contribution to be paid by pensioners of the National Teachers’ Regime does not contravene Article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only flaw noted when the Legislative Consultation was processed in due course and which Parliament took care to amend), thus leaving practically intact an amount sufficient in the Chamber’s judgment to guarantee the effective enjoyment of the right to retirement, and second, because the amounts collected for the various excesses that occur in specific cases have a clear protective and standardizing purpose for the benefit of the group of persons for whom the regime was established; that is, they are aimed at the social well-being of all or of the vast majority of the members for whom the regime was conceived. This may entail that in some retirement systems there are redistributive rules for those cases that can be considered, so to speak, extraneous to the rationale of the regime and that must, therefore, undergo a process of standardization to bring the benefits received (to the extent necessary and possible) into line with those received by the majority of the regime’s beneficiaries, consequently having to make—should they wish to continue enjoying the system’s benefits—a greater contribution for receiving a greater consideration in relation to the persons taken into consideration when designing the system—in this case, the teachers—who receive a substantially lower salary and, consequently, so is their retirement or pension. It is therefore fair—due to the solidarity-based nature of the regime—to set a sufficiently high maximum amount that includes the higher salaries of the regime’s own beneficiaries and to subject those above it to a greater participatory requirement, as they always derive from obligations not contemplated among those taken into consideration when establishing the system’s bases.” In summary, nothing within the constitutional framework opposes the legislator’s introducing reforms to the Social Security system and regulating or modifying, for the future, the normative elements that legal operators must take into account to determine the amount of the pension, which the legislator does in exercise of the powers that the Political Constitution itself has entrusted to it and which entail the margin of discretion inherent in the legislative function, a margin that allows the valid introduction of reforms that, in accordance with economic needs and social conveniences, as well as with the evolution of the times, the legislator deems necessary for the effectiveness and guarantee of the right to a pension. Furthermore, we believe that, in short, the guarantees that the Constitution provides in favor of pensioners cannot be interpreted in such a way as to curtail the legislator’s exercise of the function that the Constitution itself has entrusted to it, because that would be to petrify the dynamic exercise of legislating over specific groups of individuals, to the clear detriment of the generality. On the other hand, a cross-cutting argument in the unconstitutionality claim (acción de inconstitucionalidad) before us consists of affirming that the special contribution imposed on members of the Judicial Branch regime aims to finance regimes that have been poorly administered. Along these lines, it is indicated that “… an autonomous, self-sustaining regime such as that of the Judicial Branch, which has already been considerably mistreated by other recent laws, must now, because of its efficiency, undertake a special contribution, to sustain other less efficient pension regimes… ” and it is added that the resources of the special contribution will be used to be diverted to sustain public finances or those of other pension regimes that have been neglected and are not efficient in their management…”. On this point, we must indicate that Article 236 bis of the Organic Law of the Judicial Branch (LOPJ), in its last paragraph, clearly establishes that “The resources obtained from the special, solidarity-based, and redistributive contribution, established in this law, shall enter the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial)…”, which refutes the objection alluded to. Certainly, Law No. 9836 of March 26, 2020, provided that the resources contributed through the contribution imposed on the regimes referred to in Article 4 of Law 9383, Framework Law for the Special Contribution of Pension Regimes, of July 29, 2016, must be used to grant pensions from the non-contributory regime aimed at persons in extreme poverty; however, the Judicial Branch regime is not among those mentioned in the cited Article 4, and therefore the resources from its contributions remain within the Judicial Branch regime. 4.- Regarding the possible violation of the principles of reasonableness, proportionality, non-confiscation, and inviolability of assets. With respect to this matter, we must indicate that the special solidarity-based and redistributive contribution regulated in Law No. 9796 is neither excessive nor unreasonable, especially considering that in the case of the Judicial Branch regime, this contribution applies only after the economic benefit received by the pensioner exceeds the equivalent of six base salaries of the lowest-paid position in the Judicial Branch, which is equivalent to 2,554,800.00. In other words, pensioners whose economic benefit is less than 2,554,800.00 are not subject to the special solidarity contribution sought to be annulled, in addition to which this contribution is staggered, or progressive, which allows us to affirm that the legislator respected the constitutional principle of proportionality. We also believe that the challenged provisions respect the principle of non-confiscation, since total deductions from the pension amount (including the special solidarity contribution, the regime contribution, income tax, and any other mandatory deduction) cannot exceed 55% of the gross pension amount. This is established by Law No. 9796 itself, in its Article 5, according to which “In no case may the sum of the solidarity contribution and all deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted such that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” Note that to reach or exceed 55% in withholdings on the gross pension amount, the amount of the latter must be very high, especially considering that no special solidarity contribution is paid on the first 2,554,800.00. It is important to note, in any case, that proof of the irrationality of a rule is the burden of the party alleging it, and in this matter no such irrationality has been demonstrated. On this subject, this Chamber has indicated that “To undertake an examination of the reasonableness of a rule, the Constitutional Court requires that the party provide proof or at least elements of judgment to support its argumentation, and the same procedural burden falls upon whoever rebuts the arguments of the claim; failure to meet these requirements makes the allegations of unconstitutionality unacceptable. The foregoing is because it is not possible to conduct a reasonableness analysis without the existence of a coherent line of argumentation that is evidentially supported.” (Constitutional Chamber, judgment No. 5236-99 of 2:00 p.m. on July 7, 1999, reiterated, among many others, in No. 10153-2001 of 2:44 p.m. on October 10, 2001, and in No. 14392-2016 of 9:05 a.m. on October 5, 2016). Furthermore, in accordance with constitutional jurisprudence, the examination of reasonableness, as an integral part of constitutionality review, is limited to excluding from the legal system those acts that are totally unreasonable, but not to substituting or prosecuting public authorities in the weighing of elements that might make one option more suitable than another (resolutions 1064-2009 of 3:07 p.m. on January 28, 2009, 9042-2010 of 2:30 p.m. on May 19, 2010, and 10986-2012 of 3:05 p.m. on August 14, 2012). However, if in a specific case the exempt amount from the contribution is not respected (which, in the case of the Judicial Branch, as we have already indicated, is 2,554,800.00) or withholdings exceeding 55% of the gross pension amount are made, this could not be attributed to the content of the challenged rules, but rather to their erroneous interpretation, or improper application, which should be reviewed through the remedy of amparo (recurso de amparo) and not in an unconstitutionality claim. The following jurisprudential citations corroborate this position: “… the plaintiff bases her allegation on the ‘harm’ caused by the ‘interpretation and application’ of the challenged regulations, which is why this is not a case fitting the premises of an unconstitutionality claim, but rather an amparo remedy, based on the provisions of Article 73 subsection b.) which governs this Jurisdiction—which establishes that the unconstitutionality claim shall be admissible against subjective acts if they are not susceptible to habeas corpus or amparo remedies—by virtue of which, it is concluded that the content of this challenge should have been the subject of an amparo remedy as it involves not constitutional conflicts, but rather allegations against administrative actions capable of being heard through that other avenue, as provided in the last paragraph of Article 29 of the Law of the Constitutional Jurisdiction” (Constitutional Chamber. Judgment No. 1160-94 of 10:30 a.m. on March 2, 1994). “…The improper application of the law or its erroneous interpretation in a specific case is a matter proper to the amparo remedy and not to the unconstitutionality claim, as clearly stated in Article 29 of the Law of the Constitutional Jurisdiction.” (Constitutional Chamber judgment No. 5966-94 of 3:54 p.m. on October 11, 1994, reiterated, among others, in No. 13421-2004 of 2:06 p.m. on November 26, 2004, and in No. 5965-2014 of 2:45 p.m. on May 7, 2014). In another of its arguments, the plaintiff cooperative (cooperativa accionante) states that there are no studies supporting the need for the reform to the special, solidarity-based, and redistributive contribution made through Law No. 9796. On this matter, we must indicate that the need to reduce public expenditure originating from the payment of economic benefits related to the special pension regimes, as well as to balance those regimes that have a Fund, is public and notorious. Even so, we must point out that for the approval of the questioned law, legal and economic studies were indeed carried out by the Legislative Assembly and the Superintendence of Pensions (Superintendencia de Pensiones). In this regard, on folios 463 through 484 of legislative file No. 21035 (which culminated in the approval of Law No. 9796), Legal Report AL-DEST131.1-199-2019, of August 26, 2019, prepared by the Department of Studies, References and Technical Services of the Legislative Assembly, is recorded. Likewise, on folios 510 through 549 of that file, Economic Report AL-DEST-IEC-079-2019, of September 3, 2019, prepared by the same Department, is recorded. And, finally, on folios 1167 to 1171 of the file, the report issued by the Superintendence of Pensions through its official letter SP-1025-2019, of October 24, 2019, is recorded. IV.- CONCLUSION Based on the foregoing, this Office of the Attorney General considers this claim inadmissible due to the lack of standing (legitimación) of the plaintiff cooperative. Regarding the merits of the matter, we suggest that this Chamber declare the unconstitutionality claim that is the subject of this report without merit (…)”.

**9.-** In a brief filed with the Chamber on June 1, 2020, Fernando Cruz Castro, in his capacity as Presiding Judge of the Supreme Court of Justice (Presidente de la Corte Suprema de Justicia), responds to the granted hearing and expressly states the following: “(…) I.- Preliminary Consideration: This Office of the Presidency deems it appropriate to indicate that by virtue of the powers assigned by Law 9544 to the Administrative Board of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), the administration of the pensions of Judicial Branch personnel corresponds to it, in its capacity as a maximum deconcentration body with instrumental legal personality. For this reason, by virtue of the transfer of the unconstitutionality claim made by resolution of the competent Chamber, I proceed to respond to it, with the understanding that transferring the claim to the indicated body should be considered, so that it may also pronounce on the matter. The response given by this Office of the Presidency is based on the position adopted by the Supreme Court of Justice regarding the impact of what was then a draft law on the organization and functioning of the Judicial Branch, and in the understanding that it seriously, disproportionately, and unreasonably impacts retired judicial persons and, above all, those who exercise the judiciary, in accordance with the considerations set forth below. II.- Background: 1). Through official letter number AL-20035-OFI-0043-2017, of July thirty-first, two thousand seventeen, received that day, the Legislative Branch submitted for consultation the Affirmative Majority Opinion of July twenty-seventh, two thousand seventeen, regarding the text of draft law number 19,922, called ‘Comprehensive Reform Law for the Various Pension Regimes and Related Regulations’. Said draft law contemplated the creation of a ‘special solidarity contribution’ obtained from retirement benefits or pensions already granted and to be granted. By virtue thereof, in the Full Court (Corte Plena) session number 26-17, held on August seventh, two thousand seventeen, article, it was agreed to make an express indication to the Legislative Assembly that ‘The Court issues a negative opinion and opposes the draft law consulted, as it affects the organization, structure, and functioning of the Judicial Branch.’ 2). In official letter NO HAC-35-2019 of May 30, 2019, Lic. Flor Sánchez Rodríguez, Area Head of the Permanent Ordinary Commission on Treasury Affairs of the Legislative Assembly (Comisión Permanente Ordinaria de Asuntos Hacendarios de la Asamblea Legislativa), requested the opinion of the Supreme Court of Justice on the project called ‘Law to establish equitable caps on luxury pensions, redesign and redistribute the resources of the special solidarity contribution, and create the figure of Exceptional Mandatory Retirement’, file No. 21,035. The consultation was sent for study to Judge (magistrada) Roxana Chacón Artavia, who, in a note of June 14 of that year, rendered the corresponding report, which was heard by the Full Court in session number 024-2019 of June 17, 2019, Article XV. In said session, it was agreed to consider the report of Judge Chacón as rendered and to make it known to the Permanent Ordinary Commission on Treasury Affairs of the Legislative Assembly, in response to the consultation made, with the express indication that the draft law consulted does interfere with the organization and functioning of the Judicial Branch. Likewise, the cited draft law was submitted for consultation on two subsequent occasions, reports for which were rendered by Judge Roxana Chacón Artavia and heard in sessions 39-19 and 47-19, held on September 16 and November 11, both of 2019, Articles XIII and XV, respectively. On those occasions, it was also agreed that the draft law consulted did affect the organization and functioning of the Judicial Branch. (See attached certification). 3). In official letter No. AL-CPOECO-615-2019 of October 18, 2019, Lic. Nancy Vílchez Obando, Area Head of the Permanent Ordinary Commission on Economic Affairs of the Legislative Assembly, requested the opinion of the Supreme Court of Justice on the project called ‘Law for the solidarity contribution of luxury pensioners’, file No. 21,537. The consultation was sent for study to Judge Orlando Aguirre Gómez, who, in a note received at the General Secretariat of the Court on November 11, 2019, rendered the corresponding report, which was heard by the Full Court in session 047-2019 of November 11, 2019, Article XVI. In that session, it was agreed to consider the report as rendered and to make it known to the Permanent Ordinary Commission on Economic Affairs of the Legislative Assembly, in response to the consultation made, with the express indication that the draft law consulted does affect the organization and functioning of the Judicial Branch. II.- On the merits of the action: a). Law 9796 ‘Law to redesign and redistribute the resources of the special solidarity contribution’, in its provision 1 establishes that its purpose is to contribute to public finances by ‘redesigning’ the maximum pension caps and the cap for pensions exempt from the ‘special solidarity contribution’ established, among other pension regimes, for that of the Judicial Branch. Moreover, as inferred from Article 3, its purposes are: 1. To grant continuity and applicability to the solidarity contribution as a contribution to achieve the sustainability of pensions; 2) to contribute to the elimination of inequalities in the social benefits of pensions and retirement benefits, as well as in the tax burdens; and 3) to give sustainability to the pension systems through the new contributions. Despite the fact that neither the previously stated purpose and aims, nor a comprehensive reading of the challenged regulations, reveals the course that the mandatory and special contributions of the different regimes subject to this law will take, the phrase ‘and redistribute the resources…’ in the title is noteworthy, since initially the draft law intended to deposit the mandatory and special contributions for a term of ten years into a ‘special fund’ created by the Ministry of Finance, so that they would be used for the payment of the country’s internal and external debt. b) Regarding Article 4, subsection b) establishes that retirement benefits and pensions derived from the Judicial Branch retirement and pension regime shall be subject to the special solidarity contribution, created in Law Number 9544 which reformed the Judicial Branch retirement and pension regime, with the exception of those whose amount does not exceed six base salaries of the lowest-paid position in said branch. It should be noted that Law 9544 reformed the Judicial Branch retirement and pension regime; among other modifications, it created the special solidarity contribution indicated in the reference Article 4, which can be verified in Article 236 bis of the current Organic Law of the Judicial Branch. In what is of interest, that Article 236 bis, added by Law 9544, establishes: ‘Special, solidarity-based, and redistributive contribution of pensioners and retirees. In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall make a special, solidarity-based, and redistributive contribution, in accordance with the following table: a) On the excess above the cap established in Article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess. (...)’. Article 225, referred to in the provision partially transcribed in the preceding paragraph, establishes that no retirement benefit shall exceed ten times the base salary of the lowest-paid position in the Judicial Branch; which, in accordance with the stated Article 236 bis, determines that the special contribution would be applied to the excess above those ten base salaries, this being the case until the entry into force of Law 9796; since, as indicated, only those retirement benefits or pensions that do not exceed six base salaries of the lowest-paid position in the Judicial Branch will be exempt from the special contribution. This represents a degradation in the final amount received by a retired or pensioned person, or that another person could receive upon becoming entitled to those fundamental rights, since the exemption range for the special contribution was shortened by the reform to Article 236 bis of the Organic Law of the Judicial Branch, effected through the challenged law. The foregoing was communicated to the Legislative Branch in response to the consultation analyzed by Judge Roxana Chacón Artavia, through the Full Court agreement taken in session number 24-19, held on June 17, 2019, Article XV, which, in what is of interest, states the following: ‘B) THE SPECIAL, SOLIDARITY-BASED AND REDISTRIBUTIVE CONTRIBUTION IS ALREADY INCORPORATED IN THE ORGANIC LAW OF THE JUDICIAL BRANCH. With the Reform of the Judicial Branch Pension and Retirement Regime, an Article 236 bis was introduced, through Law No.

9544, of April 24, 2018, establishes a special, solidarity-based, and redistributive contribution for pensioners. "The article states: In addition to the common contribution established in the previous article, the pensioners and the retirees, whose benefits exceed the amounts that will be fixed, will contribute in a special, solidarity-based and redistributive manner, in accordance with the following table: a) On the excess of the top established in article 225 and up to twenty-five percent (25%) of said top, contribute with thirty-five percent (35%) of such excess. b) On the excess of the previous margin and up to a twenty-five percent (25%) more, contribute with forty percent (40%) of such excess. c) On the excess of the previous margin, contribute with fifty-five percent (55%). "The article: In addition to the common contribution established in the previous article, the pensioners and the retirees, the workers, and the employees, whose contributions are inferior to those of the workers and the servants of the Judicial Power and the contributions that the retired persons make to the Fund of Pensions of the Judicial Power. The special, solidarity-based contribution is not less than a tax on pensions, so that, if these must cancel from 10% to 15% of Income Tax, the contribution becomes a double tax burden and a confiscatory act outside of all reason. 5) Irretroactivity. The article 34 of the Political Constitution provides: "No law will be given retroactive effect in detriment of a person, or of their patrimonial rights acquired or of consolidated legal situations." The project proposes that the contribution be applied also to persons who currently enjoy the right to a pension, which is granted in a timely manner, that helps to satisfy their fundamental needs, have contributed or not to a regime of pensions. From the point of view of doctrine, it has been pointed out that the retirement by old age has a specific objective, which is to ensure that those workers who retire totally or partially from the activity, a compensation that allows them to maintain their standard of living as if they were still in a state of health. The medical attention and the care, for the elderly, the sick, and the disabled. The Constitutional Chamber in judgment 2010-1625 pointed out: 'When restricting certain rights, this rule imposes the duty that such limitation is justified, by a sufficient reason to legitimize its contradiction with the general principle of equality. The foregoing, by virtue of the fact that the act is reasonable when it complies with a triple condition: it must be necessary, suitable and proportional.' The law that is approved by the Legislative Assembly on the basis of the project that was consulted. The report issued by the Magistrate Orlando Aguirre Gómez, which considered the following: "The Court Plena already had the opportunity to refer to the legal basis that was upheld in that moment, on a similar project consulted. The report rendered by the judge, the opinion of the expert, the technical criteria, the analysis of the proposal, the creation and regulation of the special, solidarity and redistributive contribution, for the pensioners, and the retirees, whose benefits exceed the amounts that will be fixed, contribute in a special, solidarity-based manner, in accordance with the following table: a) On the excess of the top established in article 225 and up to twenty-five percent (25%) of said top, contribute with thirty-five percent (35%) of such excess. b) On the excess of the previous margin and up to a twenty-five percent (25%) more, contribute with forty percent (40%) of such excess. c) On the excess of the previous margin, contribute with fifty-five percent (55%). "The article: In addition to the common contribution established in the previous article, the pensioners and the retirees, the workers, and the employees, whose contributions are inferior to those of the workers and the servants of the Judicial Power and the contributions that the retired persons make to the Fund of Pensions of the Judicial Power."9544, of April 24, 2018, establishes a special, solidarity-based, and redistributive contribution for pensioners, said: "The article states: In addition to the common contribution established in the previous article, the pensioners and the retirees, whose benefits exceed the amounts that will be fixed, contribute in a special, solidarity-based manner, in accordance with the following table: a) On the excess of the top established in article 225 and up to twenty-five percent (25%) of said top, contribute with thirty-five percent (35%) of such excess. b) On the excess of the previous margin and up to a twenty-five percent (25%) more, contribute with forty percent (40%) of such excess. c) On the excess of the previous margin, contribute with fifty-five percent (55%). "The article: In addition to the common contribution established in the previous article, the pensioners and the retirees, the workers, and the employees, whose contributions are inferior to those of the workers and the servants of the Judicial Power and the contributions that the retired persons make to the Fund of Pensions of the Judicial Power."} We find it of particular interest to bring to the attention of the Legislative Assembly that, on this occasion, at the end of Article 236, the following was indicated: “In no case shall the sum of the mandatory contribution and the special, solidarity and redistributive contribution and, in general, the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” (The boldface does not correspond to the original text of the cited law.) Thus, the legislator, when reforming the Ley Orgánica del Poder Judicial, was clear that the pensions of judicial servants would not be levied above 55% of the gross amount of the pension. This includes the mandatory contribution and the special, solidarity and redistributive contribution already agreed upon by Law. However, the last two legislative initiatives presented in the processing of Bill No. 21.035 refer to obtaining a scale of percentages to apply to Judicial Branch pensions, without considering that a double contribution already exists on the part of those obligated to the Judicial Branch Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones del Poder Judicial): on one hand, the mandatory contribution of 13%, leaving only a maximum of 42% of the pension available to set the special solidarity and redistributive contribution to be distributed from this percentage on the suggested scale. This is so as not to violate the aforementioned provision, that it shall not be possible to exceed 55% of the gross amount of the pension. Precisely, this Magistrate, without intending any disrespect, notes that the Bill lacks technical studies that take into consideration the contribution established in the Ley Orgánica del Poder Judicial, and the one proposed in the consulted Project, called the solidarity, special and redistributive contribution. These two items have not been analyzed to determine if the recent legislative initiatives would be exceeding the limit established by the Legislator when it reformed the Chapter relating to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) and determined that they could not exceed 55% of the pension amount. IV.- PENSIONED PERSONS OF THE JUDICIAL BRANCH ALSO CONTRIBUTE FROM THEIR PENSIONS WITH THE INCOME TAX. According to Law 7092, Income Tax Law (Ley de Impuesto sobre la Renta), another obligation is established for Judicial Branch pensioners to contribute from their pensions to the Income Tax. And recently, in December 2018, the Public Finance Strengthening Law (Ley de Fortalecimiento de la Finanzas Públicas), Law No. 9635, was enacted, which came to reform several articles of Law 7092. All these burdens imposed on pensions have caused the amounts in recent years to increase considerably, in response to the economic situation our country is experiencing. However, it is important to review the obligations that the Legislator has already imposed on this Sector of the Population, pensioners, so as not to overburden them and impose double contributions, which place them at serious risk of not being able to meet their economic and subsistence obligations." Special care must be taken with the reductions imposed so that they are not confiscatory, because as indicated, in addition to this special solidarity contribution based on the six base salaries mentioned, one must not lose sight of the fact that, as was explained, an ordinary retirement fixed at eighty-two percent (82%), which bears the legal burdens that could be up to fifteen percent (15%) and which is currently thirteen percent (13%) contribution to the Fund, five point five percent (5.50%) to the CCSS Regime and ten percent (10%) to twenty-five percent (25%) for income tax, already suffers practically a decrease of between forty-five percent (45%) and sixty percent (60%) of the salary the retired person received when they were actively working (this without considering that the calculation is not being made based on the current salary, but on a pro-rata of the last twenty years of work). A situation that is also not foreign to those retirements or pensions that are already granted and enjoyed, since they currently endure levies from thirty-one percent (31%) to thirty-five percent (35%) of the total entitlement, which added to the lowest percentage of the solidarity contribution – twenty-five percent (25%) – results in a total of sixty percent (60%), which becomes confiscatory and disproportionate, in addition to violating the principle of non-retroactivity of the law, set forth in Article 34 of the Political Constitution. It is reiterated that said condition goes against the provisions of ILO Convention No. 102, which in its Article 67 establishes that: “With respect to any periodic payment to which this article applies: (a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule fixed by the competent public authorities, in conformity with prescribed rules; (b) the amount of the benefit may not be reduced except to the extent that the other resources of the beneficiary's family exceed substantial sums prescribed or fixed by the competent authorities, in conformity with prescribed rules; (c) the total of the benefit and the other resources of the family, after deduction of the substantial sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and adequate living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66.” And Recommendation No. 43 of that body concurs in establishing that the pension must satisfy the essential needs of individuals in their old age, for which reason the amount must be set taking into account the “cost of living and social situation during the period of professional activity.” That is to say, the standard of living that the judicial servant had during their active professional life must be respected. It expressly states: “(b) In schemes with contributions proportional to salaries, insured persons who have paid to their account the contributions corresponding to the average duration of active professional life should obtain a pension corresponding to their social situation during the period of professional activity. To this end, the pension guaranteed to insured persons who have accredited thirty effective years of contributions should not be less than half of the insured salary since entry into the insurance or during a determined period immediately preceding the liquidation of the pension.” Moreover, each judicial servant contributes, during their entire working life, a determined percentage that affects the totality of their income, so there is no explanation whatsoever that justifies exempting fewer base salaries than in other regimes. The justification is even more necessary and indispensable when there are judicial servants who, having contributed double, triple, quadruple, or even more times than others, end up having a lesser number of base salaries imposed as an exception from the special contribution, in comparison with other regimes. In this regard, it is noted that when the legislator set the exemption range, it did not indicate the reasons for choosing it, an explanation that should have been based on technical and, especially, actuarial criteria that justified the decision adopted and not solely on the need to eliminate “the inequalities in the social benefits of pensions and retirements, as well as in the tax burdens.” Furthermore, take into account that judicial servants, at the moment of opting for their retirement, continue contributing to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) with a worker contribution of thirteen percent (13%) according to Article 236 LOPJ, unlike other retirement and pension regimes; therefore, the amount of their retirement is diminished and, additionally, other deductions must be added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial), created pursuant to Article 239 of the cited regulation, which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial servants, as well as of the retirements and pensions covered by the fund, which could be seen as confiscatory (Constitutional Article 40), violative of the principle of non-retroactivity of the law (Article 34 of our Magna Carta) given the existence of acquired and consolidated patrimonial rights under a prior law, and violates the principle of equality established in numeral 33 ibid. In support of the foregoing, it is important to reiterate the report approved by the Full Court in session number 26-17, of August 7, 2017, Article XXX, where the following was noted in relevant part: “It is reiterated, this Court has been and will be respectful of the technical studies issued to seek the sustainability of the Fund; however, it cannot be overlooked that we are in the presence of fundamental rights and that is why the reform also merits a study adhering to actuarial technique but also with a human rights perspective. In that sense, it is worth noting that Recommendation No. 43 of the ILO “Invalidity, Old-Age and Survivors' Insurance Recommendation”, in point 13), subparagraphs a) and b) states that: “(a) To guarantee workers a deprivation-free old age, the pension should cover essential needs. It is therefore advisable that the pension guaranteed to every pensioner who has completed a determined qualifying period be set giving due consideration to the cost of living. (b) In schemes with contributions proportional to salaries, insured persons who have paid to their account the contributions corresponding to the average duration of active professional life should obtain a pension corresponding to their social situation during the period of professional activity. To this end, the pension guaranteed to insured persons who have accredited thirty effective years of contributions should not be less than half of the insured salary since entry into the insurance or during a determined period immediately preceding the liquidation of the pension. It is clear then that both Convention No. 102 and Recommendation No. 43 of the International Labour Organization are consistent in establishing that the retirement and pension must satisfy the essential needs of individuals in their old age, for which reason the amount must be set taking into account the “cost of living and social situation during the period of professional activity.” That is to say, the standard of living that the working person had during their active professional life must be respected. The need to make reforms to the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones), in order to seek sustainability, is not unknown, but these must be cloaked in suitability and reasonableness, as indicated by the Constitutional Chamber (Sala Constitucional) in ruling no. 2010-1625 of 9:30 a.m. on January 27, 2010, when declaring unconstitutional the pension cap established in Article 234 of the Ley Orgánica del Poder Judicial. The foregoing is consistent with what was stated by the Inter-American Commission on Human Rights when, analyzing the admissibility of the case “Admissibility and Merits, Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras vs. Perú”[1], it outlined that the aforementioned Article 26 does not exclude the possibility that a State impose certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis has been made of the individual affectation of the right (in this case to retirement and pension) in relation to the collective implications of the measure.” (The emphasis is supplied). d).- It must be indicated that Article 236 of the Ley Orgánica del Poder Judicial, which defines the income of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), maintains the 13% contribution that active judicial servants must make for pensioned and retired ones, unlike other retirement regimes where once a person is retired or pensioned they do not have to continue contributing. This condition must be evaluated integrally with the rest of the articles mentioned in the preceding points, where amounts are also established that reduce the percentage approved for retirement due to deductions for contribution, special, solidarity and redistributive contribution, which were established in the challenged norm, in addition to the income tax. Furthermore, it is noted that the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) has the same characteristics as a social security fund (Constitutional Articles 73 and 177) and its nature has been analyzed by this Chamber in ruling number 2014-20474, of three forty-five p.m. on December eighteenth, two thousand fourteen, in the following manner: III. On the nature of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial).- For this Tribunal, the retirement and pension system of the Judicial Branch consists of a “pay-as-you-go system (régimen de reparto)”, in which contributions concur from both workers and ex-servants, as well as public funds, given the contributions of the Judicial Branch as employer, and that of the State itself. Ergo, the nature of this social protection regime corresponds to the field, on one hand, of social security law, and, on the other, to public law by virtue of the statutory nature of the servants' relationship with the State. Thus, it is evident that the system in question has exactly the same characteristics as a social security fund, as inferred from the reading of numeral 73 of the Political Constitution: “Article 73. Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of compulsory contribution of the State, employers and workers, in order to protect them against the risks of illness, disability, maternity, old age, death and other contingencies that the law determines.” In short, the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) is constituted for the benefit of judicial workers, financially sustained by a tripartite compulsory contribution system from the State, the Judicial Branch as employer, together with judicial servants and retirees, and which aims to protect the latter from contingencies such as old age, disability or death. The necessary elements are present to consider the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) as a pay-as-you-go social security system, which inescapably implies that it must be governed in accordance with what is established in the Political Constitution and the principles that inform social security regimes. (Judgment number 2011-10513, of three-oh-one p.m. on August tenth, two thousand eleven. In the same sense, judgment number 2012-004108, of two-thirty p.m. on March twenty-seventh, two thousand twelve).” e).- It is reiterated, retired and pensioned persons of the Judicial Branch continue contributing to the regime the same percentage as working persons, currently 13%, so any additional solidarity contribution must start from this percentage already contributed. It must also be considered that retirees and pensioners of the Judicial Branch regime, in addition to this mandatory contribution to the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of 13%, must contribute to the CCSS Sickness and Maternity Insurance (Seguro de Enfermedad y Maternidad), 5.50%, and also pay income tax, whose brackets reach between 10% and 25%, according to the limits defined by the Ministry of Finance. It is highlighted that those belonging to the Disability, Old Age and Death Regime of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) do not continue contributing to the regime nor do they pay what corresponds to Sickness and Maternity Insurance, and this represents unequal treatment for former judicial servants. It is for this reason that this solidarity contribution cannot exceed 20%, considering the 13% already contributed, since, otherwise, the totality of deductions would be confiscatory and would violate international and constitutional regulations established in this matter. Likewise, in relation to the solidarity tax, it is considered that being a tax burden, the constitutional principles governing tax matters must be respected, such as the principle of legal reserve, proportionality, economic capacity, non-confiscation, among others. And that among all these principles, it is of special interest to highlight the principle of non-confiscation in relation to the right to property and what was stated by the Constitutional Chamber (Sala Constitucional) in judgment 2657-2001 of three-fifteen p.m. on April fourth, two thousand one, which indicated the following: "IV. On the argument that the tax is confiscatory: The State may take a proportional part of the income generated by the individual, to defray its expenses, but provided that it does not annul the property as such, as would be the case if the tax totally absorbs the income. If the Constitution protects the right to property in its integral patrimony, it cannot be recognized and admitted that other provisions destroy it. Thus, to be constitutional, taxes must not distort other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposal, and prohibits confiscation, so a taxation measure that goes beyond what is reasonable and proportionate cannot be permitted. […]. If the Constitution in its Article 45 establishes that property is inviolable, and in its Article 40 that no one shall be subjected to a penalty of confiscation, it is unquestionable that the tax cannot be such that it makes such guarantees illusory. But it can be established as a principle, that a levy is considered confiscatory if it exceeds the economic or financial capacity of the taxpayer, or if the tax absorbs a substantial part of the levied operation, […]. (Our emphasis).”. Therefore, it is considered that the reductions imposed are confiscatory, because as indicated, in addition to this solidarity contribution, one should not lose sight of the fact that an ordinary retirement fixed at eighty-two percent (82%) which bears the legal burdens of thirteen percent (13%) contribution to the Fund, five point five percent (5.50%) to the CCSS Regime and ten percent (10%) to twenty-five percent (25%) for income tax; already suffers a decrease of forty-six percent (46%) to sixty-one percent (61%) – according to those calculations – of what the retired person received when they were actively working, without further considering that the calculation was not made at that time based on the current salary, but on a pro-rata of the last twenty years of work), which clearly could be confiscatory and disproportionate, consequently contrary to what is stipulated in conventional and constitutional matters. For all the foregoing, it can be concluded that: 1-The modification of the special solidarity contribution established in the challenged norm affects the life project of all judicial servants, because it signifies an arbitrary and unequal decrease in the retirement, and given the percentage reduction of the amount paid as retirement recognition, it is determined to be confiscatory. The foregoing because it aggravates lower-range incomes and simultaneously re-aggravates incomes from higher-range pensions or retirements, taking as a starting point the gross income amounts without considering that income tax, social security regime contributions, and the aforementioned solidarity contribution are already deducted percentage-wise from such incomes, which implies that the new figure being imposed is certainly a double imposition of taxes. In addition, the remedy sought causes a minuscule benefit compared to the enormous harm that would be caused only to some Costa Rican families. Also, it even lowers the amount upon which the solidarity contribution starts, going from ten base salaries to six base salaries in the case of the Judicial Branch, which does not apply to the other basic regimes involved in said norm. This clearly warns of an affectation to pensions that logically have lower purchasing power, while simultaneously harming even more people who have a higher income range from pensions who are already affected by the solidarity contribution figure. Lowering the amount from 10 minimum salaries to 6 minimum salaries, maintaining the same percentage deduction scale that always starts at 35%, evidently violates the Principle of Reasonableness, besides the fact that the other regimes, in some cases such as that of the Teachers (Magisterio), only suffer the collection of the Solidarity Contribution and not the percentage contribution that equally affects the Judicial Branch Regime when judicial servants under their regime are pensioned or retired. 2- It cannot be set aside that the creation and nature of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) responds to criteria of stability, independence, preparation and suitability, as established by Article 192 of the Political Constitution, with the object of promoting the permanence of trained and qualified personnel in the institution, and the decrease in retirement enjoyment represents a disincentive for the entry of valuable professional persons, who, considering the economic result of a future valuation, would prefer to make their professional career in another labor field. With this, the judicial career, prosecutorial career, Public Defense career, and personnel in general who have more burdens on their salary —four times more than in other regimes— would receive a lesser benefit. 3- Furthermore, the renewal of personnel who manage to stay is affected. The Judicial Branch would have older functionaries who remained working solely because of the decrease their income would suffer if they retired. 4- The judicial population faces a crossroads where, although it is true, there is a desire to opt for that right and the motivation to retire and rest, they find themselves placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses, or those acquired prior to the pension, and those natural for reasons typical of age. However, that process also has its restrictions; from a legal point of view, the Ley Orgánica del Poder Judicial prohibits retired persons from opting for another job, and socially it is a reality that after the age of forty, there are factual limitations regarding labor reincorporation. 5- The regulation of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) should not be evaluated solely from the economic perspective, because we are faced with fundamental rights – inalienable – associated with every working person, who during their working years contributed a percentage higher than the general one to a regime with the expectation of having a pension that allows them to satisfy their needs and enjoy, together with their environment, their retirement years in a calm manner and with quality of life. 6- The imposition of this new tax burden affects vulnerable population groups – such as older adults – harming the weakest part, precisely that which requires greater protection from the State. The foregoing also implies a retroactive application of the law, an aspect prohibited by Article 34 of the Political Constitution. The tax is imposed at a time in the life of the retired person when they are more vulnerable, close to or already of the third age. It cannot be overlooked that it is at this stage where, generally, individuals require greater medical attention, special care, among others, being that during their working life, some in lesser or greater amounts, according to the income received, they contributed to the regime with the expectation of having the resources foreseen to face this process, and if this Bill were approved, said life plan would be truncated. 7- A significant social impact is caused, because people in their retirement lose, surprisingly, an important part of their income, but retain a status of pre-established expenses, which becomes a repercussion, not only economic, but also on their health, being contrary to the objective foreseen for a pension system, which is to have sufficient income during life after work, a scenario within which it is important to remember that on many occasions, the retired person continues to have under their care and maintenance other older adults or minors (…)”.

**10.-** By briefs submitted to the Chamber on June 1, 2020, Luis Antonio Chang Pizarro and Silenne Castro Vindas, in their capacity as retirees of the Judicial Branch, request that they be considered as active coadjuvants in this proceeding.

**11.-** By a brief submitted to the Chamber on June 2, 2020, María del Pilar Vargas Acosta, in her capacity as a retiree of the Judicial Branch, requests that she be considered as an active coadjuvant.

**12.-** By a brief submitted to the Chamber on June 2, 2020, Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas and Alfredo Jones León, in their capacity as retirees of the Judicial Branch, request that they be considered as active coadjuvants in this constitutional proceeding.

**13.-** By a brief submitted to the Chamber on June 3, 2020, María del Pilar Garrido Gonzalo, in her capacity as Minister of National Planning and Economic Policy, answers the granted hearing and expressly states the following: "(…) 1.- FORMAL ASPECTS: As a preliminary aspect, it is necessary to clarify that the Ministry of National Planning and Economic Policy (MIDEPLAN) did not participate in the drafting process of the Bill.

Likewise, note that the subject of pensions, by its nature, is the responsibility of other specialized public bodies and institutions; consequently, it does not fall per se within the powers granted to this Ministry by the National Planning Law, No. 5525 of May 2, 1974, as the governing body of the National Planning System, nor those granted to the head of this ministry by Article 46 of the Public Administration Salary Law, No. 2166 of October 9, 1957, amended and supplemented by Article 3 of the Public Finance Strengthening Law, No. 9635 of December 3, 2018, as the governing body of public employment. By reason of the foregoing, this Ministerial Office can only render the requested Report based on the current text of the cited Law —which will enter into force only on June 21, 2020, that is, it has not yet produced legal effects, so as of today none of the retired persons of the Judicial Branch Retirement and Pension Regime, nor of any other of the pension regimes within the scope of application of said Law, have been affected—, as well as based on the public information available in the various institutions. Likewise, in the most respectful manner, this Honorable Chamber is urged to include as an informant the Ministry of Labor and Social Security, the governing body for pension matters, so that the Magistrates may have greater inputs to resolve on the constitutionality of the Law to redesign and redistribute the resources of the special solidarity contribution, No. 9796 of December 5, 2019. 2.- ON THE MERITS: As a first element for the constitutionality analysis, it is appropriate to consider the aims pursued by the Law to redesign and redistribute the resources of the special solidarity contribution, which, according to its Article 3, are not only aimed at contributing to public finances, whose current difficult situation is publicly known, and at the redesign and redistribution of the special solidarity contribution established for the special pension regimes contained in Articles 3 of the Framework Law for the Special Contribution of Pension Regimes, No. 9383 of July 29, 2016; 236 bis of the Organic Law of the Judicial Branch, No. 8 of November 29, 1937, and Article 71 of the Law on Pensions and Retirements of the National Teachers' Fund, No. 2248 of September 5, 1958 (comprehensively amended by Law No. 7531 of July 10, 1995); it also seeks the sustainability of the systems and pensions, as well as to lessen the inequalities in the social benefits of pensions, retirements, and in the tax burdens. In this regard, the criterion issued by the Operational and Evaluative Audit Division of the Audit Area of the Republic's Financial Administration System of the Comptroller General of the Republic (CGR) in Official Letter No. DFOE-SAF-0336 (9232) of July 1, 2019, must be taken into consideration, when the Law to redesign and redistribute the resources of the special solidarity contribution was made known as a Bill, in which it indicated the following: “The sustainability and fiscal impact of pension and retirement regimes has been a constant concern for many years, and has been communicated in multiple documents from the Comptroller General's Office and other sources. In particular, funded regimes, such as that of the Judicial Branch and the Disability, Old Age, and Death Regime, have been addressed through various studies, with a view to their long-term sustainability, given that they may come to represent a contingent liability for the State. In the case of regimes financed from the National Budget, which are closed to new entrants, these already generate a deficit for the Government directly. This reality has given rise, as the bill points out, to some reforms for the establishment of measures that contribute to sustainability, or that reduce the effect of said regimes on public finances. There are also legislative initiatives, in addition to that of this project, with proposals in that direction, which it is suggested be consolidated or harmonized with those of this initiative.” Subsequently, regarding the solidarity contribution and the pursuit of promoting uniformity and reducing inequalities among retired and pensioned persons, it added: “The solidarity contribution by those with higher benefits is one of the measures that has been put into execution, and this bill seeks certain uniformity on this point, in such a way that progress is made in reducing the inequalities present in the contributions (…)” This Ministerial Office agrees with the criterion expressed by the Comptroller Body, and considers that the Law to redesign and redistribute the resources of the special solidarity contribution does not violate any fundamental right, since the variation in the amount of the pension exempt from the special solidarity and redistributive contribution in the retirements and pensions of the Judicial Branch Regime, rather responds to the constitutional principles of reasonableness, proportionality, equity, and financial equilibrium, within the framework of a Social State of Law such as ours, where we have the task of adopting the necessary measures to build a just political, economic, and social order, for which the State is responsible for guaranteeing the existence and sustainability of the social security regime and, in turn, of the pension and retirement regimes, not only the one that occupies us in this case, for which it is impossible to extract the legal plane from the factual one, in which the measures, norms, and resolutions adopted must take effect. The appellants outline in broad strokes the evolution of the Judicial Branch retirement and pension regime, and express their concern as they estimate that the modification of the maximum pension amount and that exempt from the special solidarity contribution will affect the quality of life of the retired and pensioned persons of the Judicial Branch regime, who withdraw from active working life and support themselves on the lifetime annuities they receive as pension or retirement benefits. That said, and despite the fact that the appellants, by reason of their position, must look after the interests of the persons affiliated with the Savings and Credit Cooperative of Judicial Servants, R.L., it cannot be lost sight of that the Costa Rican State must not only attend to the needs of judicial retired and pensioned persons, but by mandate of Article 50 of the Public Constitution2 must procure the greatest well-being of all the inhabitants of the country, for which it must, in addition to organizing and stimulating production, ensure the most adequate distribution of wealth and guarantee, preserve, and defend that right, and more specifically, constitutional Article 733 assigns it the task of ensuring that social insurance benefits working persons and protects persons with disabilities or permanent incapacity and older adults. That said, this does not mean that the needs of some persons should be neglected for the benefit of others, but rather that the State must advocate for the sustainability of all pension regimes, including the Judicial Branch Retirement and Pension Fund itself (despite the appellants' affirmation of its self-sustainability4 ), as well as constantly seek to reduce inequality, generate greater equity, unify rules, and eliminate disproportionate benefits that in the long term severely compromise the availability of limited resources to attend to the assigned retirements and pensions as well as future ones. Regarding the alleged violations of constitutional norms and principles, it is appropriate to point out the following: With respect to constitutional Article 75 and the preeminence of international treaties and conventions over the Law and over the Political Constitution itself in matters of Human Rights, and in particular regarding the right to retirement, it must be clarified that starting from an erroneous premise will lead to an erroneous conclusion; thus, with the implementation of a lower amount that is exempt from payment of the special solidarity and redistributive contribution, what is stipulated in ILO Conventions 102 and 118 is respected, as well as in other international conventions on human rights, regarding social benefits and for the benefit of the vulnerable or older adult population, since principles such as social justice and equity are being protected, given that the purpose of this legal reform is precisely the search for a balance between the income received from contributions and the expenditures involved in the payment of retirement benefits, as well as the reduction of inequalities and the creation of equity. Likewise, although it is true that there is a fundamental right to retirement or pension widely consolidated in the jurisprudence of this Honorable Chamber, it has also been specified that there is no right to the benefit derived from that right being for a specific amount, since: “(…) the pension or retirement may be varied according to circumstances, whether to reclassify the benefit by increasing or decreasing it, when the contribution of benefits is not sufficient to cover their share in the cost of the regime (...)" (Votes No. 1925-91 of 12:00 hours on September 27, 1991, 2379-96 of 11:06 hours on May 17, 1996, and 3250-96 of 15:27 hours on July 2, 1996, 1625-2010 of 09:30 on January 27, 2010, 19485-2018 of November 21, 2018, and 236-2019 of 12:02 on January 9, 2019). Particularly regarding the invoked infringement of ILO Convention 102, it must be emphatically rejected, since its articles 65, numeral 3, and 67, subsection a) expressly establish that a maximum amount may be prescribed, that is, determined by national legislation or by virtue thereof, in accordance with article 1.1., provided that this maximum respects the minimum established by the Convention itself, which in the case of old-age benefits is 40% of the total salary of the ordinary unskilled worker (pursuant to articles 65, 66, 67), which constitutes a parameter of constitutionality for the amount of the retirement or pension. Likewise, regarding the alleged lack of actuarial technical basis for the Law to redesign and redistribute the resources of the special solidarity contribution, or at least a misinterpretation by the deputies, it is necessary to indicate that in accordance with what ILO Convention 102 establishes, within the limits to the legislative power for the configuration of the various special substitute retirement and pension regimes, is the respect for the constitutional principles of reasonableness and proportionality, as well as the necessary adaptation to the principle of non-confiscation, the best way to avoid infringements of these constitutional principles being to base the reform intended on technical-actuarial studies that demonstrate the necessity, reasonableness, and proportionality of the initiative. In this case, the required studies were requested with a view to long-term sustainability, and having them available, unconstitutionality for that reason is not applicable. Even on this point, the CGR pointed out in a report rendered on the matter that equity must prevail, the search for the reduction of inequalities in the conditions of the different regimes, in addition to the establishment of measures that contribute to their sustainability or that reduce the effect of said regimes on public finances. In this regard, the Constitutional Chamber, in Vote No. 2379-96 of 11:06 hours on May 17, 1996, held that: “(…) the fact that the petitioner is recognized as having an acquired right to retirement from the moment of entering the regime cannot imply a disappearance of the attributes and conditions that form an intrinsic part of it —including, of course, those that may be restrictive for the beneficiary— so that all these characteristics survive as an indeterminate set of presumptive or implicit clauses, which are inserted within any regime or system for the realization of the right to retirement and which, for that very reason, are potentially applicable to the petitioner at any time and while belonging to the regime. And he could not rely on Article 34 of the Political Constitution to oppose its application, given that it is not a new regulation but the effective exercise of an implicit power of variation existing from the moment of entering the regime. Of course, this possibility of modification that the State has agreed in its favor finds limits not only from the Political Constitution, but also from International Law, among which those fixed in Convention number 102 of the International Labor Organization regarding the minimum standard of social security stand out, which indicates, in what is relevant here, that the benefits granted in application of the cited Convention and the administration costs are backed by technical studies and not that they are implemented or modified by a political, arbitrary, or capricious decision of the Administration, benefits among which is the contribution amount for the pension regime by the employee and the State as such and as employer, and which obliges that these variations be based on actuarial studies related to the solvency of the regime by affecting it.” (Emphasis supplied) From the foregoing, it follows that the ordinary legislator can validly regulate the conditions under which the special retirement and pension regimes must operate, complying with the minimum conditions established by both supranational and national regulations, in this case, those emanating from the ILO and the constitutional limits that subject it to the existence of support in objective data emanating from technical studies. Regarding the alleged violation of the principle of equality, contained in Article 33 of our Political Constitution7 and returning to what was pointed out by the Costa Rican treatise writer Rubén Hernández Valle, who categorizes it as: “Derived directly from the principles of the French Revolution, equality before the law establishes the prohibition that, within the legal system, discriminations be established for reasons of sex, race, religion, and any others based on unreasonable grounds. Its ideological substratum is human dignity and the Christian principle of the equality of all men”. And to which, later in his work “El Derecho de la Constitución,” he places within the Social State of Law, by holding: “The Social State of Law means an increase in power for the benefit of equality, more than of property and liberty; its purpose is to distribute and maximize the use of community resources for the benefit of those most in need. Therefore, it involves an intervention in economic life to favor certain persons, classes, or groups in order to raise the standard of living of those most in need in the enjoyment of property, that is, to achieve real equality for all citizens.”9 It is thus, and reiterating what was pointed out earlier regarding the tasks of the Costa Rican State as a Social State of Law, that as a manifestation of the principle of equality, the retirement and pension regimes are created within a framework that must advocate for their sustainability over time and that must observe the principles of solidarity and sufficiency established in the doctrine of social security. Similarly, this sustainability is coupled with the economic and financial equilibrium in safeguarding public finances, given that these must maintain a balance while ensuring the satisfaction and effective remuneration of retired and pensioned persons. For this reason, it is considered opportune to return to the necessary weighing between the principle of budgetary equilibrium and the benefits borne by a Social State of Law, to which the Constitutional Chamber referred in Considerando IV of Vote No. 19511-2018 of 21:45 hours on November 23, 2018, and with which the optional consultations of constitutionality of bill No. 20,580 (now the Public Finance Strengthening Law, Law No. 9635 of December 3, 2018) were resolved, which, due to their relevance, are transcribed below: “…On this matter, faced with a critical condition in public finances (duly supported by technical studies), which puts the effective or adequate execution of benefits of constitutional relevance at risk, the decision of the competent authorities to define and apply measures apt to alleviate or solve the problem is not only reasonable, but, even more so, unavoidable. (…) In this context, a harmonious interpretation of the principle of budgetary equilibrium and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, inexorably there must be a balance between benefit rights and state economic solvency, since the former depend on the material possibilities propitiated by the latter, while the purpose of the latter is to strengthen the development of a solidarity-based political system, one in which the less favored strata of society find shelter for their human dignity and their right to progress. In other words, the ‘ideal’ Social State of Law is the ‘possible’ Social State of Law, against which precisely action is taken when the principle of budgetary equilibrium is breached, since, in the medium term, this seriously risks or entirely prevents obtaining the necessary resources to sustain a ‘real’ Social State of Law, one that the most vulnerable can truly and effectively enjoy. (…) Corollary of what has been expressed: the non-observance of the principle of budgetary equilibrium has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and emphasize its real implementation for the sake of the principle of the Social State of Law (…)” There is no doubt that the weak state of public finances has forced the country to have to take and apply unavoidable measures that contribute to achieving the balance to which the Constitutional Chamber refers, for the sake of having economic solvency to be able to attend to the benefits borne by the State and to give sustainability to the retirement and pension regimes. The constitutional precepts that support these healthy finances compel the State to always have as its purpose to satisfy the needs of the country's inhabitants, without entailing an irresponsible increase in spending, nor neglecting some for the benefit of others. Therefore, from the joint and coordinated application of Articles 33 and 50 of the Political Constitution, it can be concluded that the principle of equality is not intended to be absolute in nature, as it does not properly grant a right to be equated to any person without distinction of their particular circumstances or conditions, but on the contrary, implies that no distinctions be made between two or more persons or groups thereof, who are in either identical conditions or the same legal situation, so equal treatment cannot be sought when the conditions or circumstances are unequal. On this subject, in resolution number 1372-1992 dated May 26, 1992, the Constitutional Chamber, sustained the following: “III.- The constitutional jurisprudence through various pronouncements has managed to decant the content of the principle of equality established in Article 33 of the Constitution, pointing out that through it, it is prohibited to make differences between two or more persons who find themselves in the same legal situation or in identical conditions, without being able to seek equal treatment when the conditions or circumstances are unequal; in principle, equal treatment is agreed for equal situations and different treatment is made possible for different personal situations and categories. This very simple formula was recognized many years ago by the Constitutional Court, as of that date the Supreme Court of Justice, which was in charge of hearing unconstitutionality appeals before the creation of this specialized Chamber. But the requirement of equality does not legitimize just any inequality to authorize differentiated treatment; to determine if discrimination is truly justified, it must be analyzed whether the reason that produces it is reasonable, that is, whether, considering the particular circumstances of the case, diverse treatment is justified”. (In a similar vein, see Votes No. 580-1995, 633-1994, 5749-1993, and 2197-1992) And more recently, in Vote No. 236-2019 of 12:02 on January 9, 2019, which in turn cites Votes No. 2018-19030 and 2018-19485 that share the considerations, the operative part, and, where applicable, the dissenting votes, indicated: “IV. The right to retirement and the Social State of Law. Articles 50, 56, and 74 of the Political Constitution configure ‘the model of a social and democratic State of Law’ (Res. 9255 of 16:03 hours on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law ‘entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations’ (Res. 13205 of 15:13 hours on September 27, 2005). Consequently and based on the Social State of Law, ‘our Political Constitution contemplates a set of benefit rights related to the protection of… workers’ (ibid), as is the case of the right to retirement. (…)”. VII.- The right to retirement is not an absolute right. Like any other fundamental right, the right to retirement is not unrestricted, as it can be subjected to certain limitations, provided that these are established by a formal law, are reasonable, and do not impede its exercise – the essential content is not affected. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement, when it can be proven that certain situations exist, such as inequalities or privileges, that put the sustainability of a regime at risk, and, therefore, threaten the nature of the system as such. On this matter, in vote number 2379-96 of 11:06 on May 17, 1996, the following was established: II.- ON THE RIGHT TO RETIREMENT.- In repeated rulings, a fundamental right in favor of the worker has been recognized in the pension or retirement. See, for all, the pronouncement of this Chamber number 1147-90 of sixteen hours on September twenty-first, nineteen ninety, in which it was established: \"First of all, this Chamber declares that there is a constitutional and fundamental right to retirement, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being under conditions of equality and without any discrimination in accordance with Articles 33 and 73 of the Political Constitution...\" However, in the same cited pronouncement, it was established that said right is not absolute and can be subject to conditions and limitations: \"In reality, it is not ignored that the right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are also reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than the expression of a well-known principle of Human Rights Law, which can be called proportionality and which is generally recognized as a sine qua non condition for the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them.\". From the transcribed text, it is clear that within the whole universe of limitations, conditions, and restrictions that the fundamental right to retirement may suffer, there will be a group of them for which it can be affirmed that they are constitutionally valid provided they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the very exercise of the right in accordance with its nature and purpose. It is also correct to conclude that —by imperative of the structural logic of our legal system— the first of the recently indicated conditions can be expanded to include limitations and conditions that come from texts of higher hierarchy or even of the same rank, as happens in this case with the limitations that may arise from the Political Constitution itself, understood not only as a grouping of norms, but as a set of regulations and integrated principles aspiring to harmony (…)”. (Emphasis supplied) Said principle will be violated when the inequality is deprived of an objective and reasonable justification; therefore, there must necessarily be a reasonable relationship of proportionality between the means employed and the purpose itself. The principle of equality, together with the right to social security and other fundamental rights, seeks to be satisfied only with the participation of all, in order to satisfy the protected legal interest through a shared responsibility between the individual and society, which is exactly the factual picture of the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution. In this case, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution seeks, through its Article 4, to lower the exempt base for payment so that, from this point forward, the solidarity contribution is charged in accordance with the salary regime to which the retired or pensioned person belongs, in the case of the Judicial Branch Retirement and Pension Regime, moving to 6 base salaries of the lowest position. In this way, an attempt is being made to achieve economic equilibrium and the sustainability of the pension regimes, in order to maintain the same current and future benefits for all persons who opt for retirement. With the mandatory and staggered special solidarity contribution contemplated by the challenged Law, the pension exempt from the special solidarity contribution would be around the approximate amount of ¢2,550,000 colones for the Judicial Branch Retirement and Pension Regime, an amount that allows an adequate standard of living and which, in turn, is far superior to the current pensions of the Disability, Old Age, and Death Regime administered by the CCSS and which is the largest in the country. In addition to the foregoing, regarding Article 34 of the Political Constitution10 , it must be pointed out that it is improper to rely on the principle of non-retroactivity to support the existence of an acquired right or a consolidated legal situation in favor of a person (or group of them) to indefinitely enjoy a specific system, since this would be equivalent to admitting the immutability of the legal system, or what is the same, freezing the norms that were issued at a historical moment and under certain demographic, social, and economic conditions, among others, which inevitably change over time and to which the State and the legal system must adapt and regulate. In this regard, regarding the principle of non-retroactivity, acquired rights, and consolidated legal situations, this Honorable Chamber, in Vote No. 2765-97 of 15:03 hours on May 20, 1997, stated: \"The concepts of 'acquired right' and 'consolidated legal situation' appear closely related in constitutional doctrine. It is feasible to state that, in general terms, the first denotes that consummated circumstance in which a thing —material or immaterial, be it a previously foreign good or a previously non-existent right— has entered into (or had an impact on) the person's patrimonial sphere, such that the person experiences an ascertainable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial gain, but a state of affairs fully defined in terms of its legal characteristics and its effects, even when these have not yet been extinguished.

What is relevant regarding the consolidated legal situation is precisely not whether those effects still persist or not, but rather that—by virtue of a legal mandate or a judgment that has so declared—a clear and defined rule has already emerged in legal life, connecting a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the "if..., then..." type; that is to say: if the conditioning fact has occurred, then the consolidated legal situation implies that the conditioned effect must necessarily also occur. In both cases (acquired right or consolidated legal situation), the legal system protects—rendering it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing the asset or the already acquired right from the person's patrimony, or of causing that if the factual premise had occurred prior to the legal reform, the consequence (beneficial, it is understood) that the interested party expected from the consolidated legal situation no longer arises. Now, specifically regarding the latter, it has also been understood that no one has a "right to the immutability of the legal system," that is, that the rules never change. Therefore, the constitutional precept does not consist of the idea that, once born into legal life, the rule connecting the fact with the effect cannot be modified or even suppressed by a subsequent norm; what it means is that—as explained—if the conditioning premise has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the prior norm from arising. This is so because, it was said, what is relevant is that the state of affairs the person enjoyed was already defined as to its elements and its effects, even though these are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule." (Emphasis added) In such manner, retroactivity manifests when a legal norm invades the domain of application of the prior one, applying itself to facts that have occurred before its entry into force. Therefore, to establish the retroactivity of a norm, it must be defined whether its application is prospective, or if, on the contrary, it attempts to regulate facts or situations that have already occurred or are in the course of execution. Thus, in light of the cited Article 34 as well as constitutional jurisprudence, the right to retirement or a pension for those who have already fulfilled the age, contributions, and years of service required by law is incontrovertible; however, this condition gives them the right to the consequence, that is, to receive a lifetime economic benefit, but not to the rule, and even less to those that established a specific amount or left the maximum remuneration cap undefined. Likewise, if the effects have already occurred, the new norm cannot affect them, but it can affect future effects. In this case, the reform at no time determines the return of retirement or pension amounts that have been paid; rather, its effects will be produced prospectively and insofar as modifying the amounts exempt from the special solidarity contribution and defining a reasonable cap on future amounts to be disbursed as pensions. The foregoing, provided that the premise established by the challenged norm is met, that is, that the amount received as a retirement or pension exceeds more than six times the base salary of the lowest paid position in the Judicial Branch. Neither can one lose sight of the fact that if the state of affairs sought by the petitioners were maintained over time, the continuity of the social security regimes, and not only those for retirements and pensions, would be placed at severe risk, with consequent harm to the persons who have already achieved the status of retirees or pensioners, and to those who have a justified expectation, based on their contributions, of obtaining the right to retirement or a pension in the future. Closely related to the case before us, in Voto N°3250-96 of 15:27 hours on July 2, 1996, the Constitutional Chamber indicated that special contributions are not unconstitutional because they find their foundation in the social nature of the right to retirement, a nature that is inscribed within the principles that make up the Social State of Law, encompassed by Article 50 of the Political Constitution; it also ratified the validity of a contribution very similar to the one challenged in this action. On that occasion, it indicated the following: “(...) the contribution established to be paid by pensioners of the National Teachers' Pension Regime in Article 12, and the exclusion from said contribution made as an acquired right in Transitory Provision I, both of Law Number 7268, do not violate Article 34 of the Political Constitution, as they form part of the list of limitations that have validly formed part of the fundamental right to retirement that the petitioner has held since his entry and from which he cannot withdraw because he acquired them along with it. (...)” Adding further: “The manner in which Article 12 of Law 7268 regulates the contribution payable by pensioners of the National Teachers' Regime does not contravene Article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only fault that was pointed out when the Legislative Consultation was processed in due course and which the Parliament took care to amend), leaving practically intact an amount sufficient, in the Chamber's judgment, to guarantee the effective enjoyment of the right to retirement, and second, because the amounts charged for the various excesses that occur in specific cases have a clear protective and standardizing purpose for the benefit of the group of persons for whom the regime was established; that is, they are directed at the social welfare of all or of the great majority of the members for whom the regime was conceived. This may entail that in some retirement systems there are redistributive rules for those cases that may be called, if you will, extraneous to the regime's reason for being and which must therefore undergo a standardization process to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the beneficiaries of the regime, thus having to make—if it is their desire to continue enjoying the system's benefits—a greater contribution for receiving a greater compensation in relation to the persons who were taken into consideration when the system was designed—in this case, the teachers—, who receive a substantially lower salary and, consequently, so is their retirement or pension. It is therefore just—due to the solidarity-based nature of the regime—to set a maximum amount sufficiently high to include the higher salaries of the fund's own beneficiaries and to subject to greater contributory requirements those who are above it, since they always come from obligations not contemplated among those taken into consideration when establishing the system's bases.” (Emphasis added) By reason of the foregoing, this Ministerial Office considers that the challenged norms do not infringe upon acquired rights, consolidated legal situations, the prohibition of retroactivity, or constitutional jurisprudence. Regarding the issue of legal certainty, it must be considered that the State must provide a normative framework that defines with certainty what is prohibited, mandated, and permitted, as well as the legal consequences in the face of certain facts or acts, so that both institutions and citizens know what to expect. This presupposes, on the one hand, a certain knowledge of the valid, effective, and current norms, and, on the other, a certain stability of the norms and the situations defined within them. In this regard, the Office of the Attorney General of the Republic, in Dictamen N°C-058-2004 of February 18, 2004, stated: “Different corollaries derive from the principle of security. Among them, normative clarity and non-confusion, the publicity of norms, and above all, their non-retroactivity. Law must promote certainty, and this is affected when the norm is confusing, prevents the citizen from knowing what to expect, or if it is applied retroactively, affecting consolidated situations. The Constitutional Chamber has indicated in this regard: ‘Legal certainty...is the situation of the subject, of the individual as an active and passive subject of social relations, who, knowing or being able to know what the current legal norms are, has fundamental expectations that they will be fulfilled. This legal value aims to provide certainty against modifications to Law, seeks to avoid the uncertainty of current Law, that is, arbitrary legal modifications, carried out without prior study and consultation...’ (Constitutional Chamber, resolution N° 8390-97 of 16:21 hrs. on December 9, 1997). Now, as has been previously maintained, in the case before us, the principle of non-retroactivity of norms, constitutionally guaranteed (Article 34), has been respected, as well as compliance with the general rule; the norms of the challenged Law take effect prospectively, six months after its publication, that is, June 21, 2020, to apply to future income from retirement or pensions that exceed the amount of six (6) base salaries of the lowest paid position in the Judicial Branch. For this reason, the Law to redesign and redistribute the resources of the special solidarity contribution reflects respect for the principle of legal certainty on the part of the legislator, by establishing objective criteria and clear rules for the redesign and redistribution of the resources of the special solidarity contribution in a more equitable manner. As regards the principles of reasonableness, proportionality, and non-confiscation, it must be noted first that the petitioners do not provide proof or, at least, sufficient elements of judgment to support their claim, and the failure to meet these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to carry out the corresponding analysis without the existence of a coherent line of argument that departs from the exposition of subjective and extremely abstract concepts. And regarding the analysis of reasonableness, this Honorable Constitutional Chamber, in Voto N°5236-99 of 14:00 hours on July 7, 1999, indicated: “To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide proof or at least elements of judgment on which to base their argumentation, and the same procedural burden corresponds to whoever refutes the arguments of the action, and the lack of compliance with these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to carry out an analysis of reasonableness without the existence of a coherent line of argument that is evidentially supported." (Reiterated in Votos N°10153-2001 of 14:44 hours on October 10, 2001, and N°14392-2016 of 9:05 hours on October 5, 2016). Nevertheless, the Law to redesign and redistribute the resources of the special solidarity contribution cannot be framed as irrational, disproportionate, or confiscatory, since from the reasons that have been adduced throughout this Report, it is inferred that the norm was issued by the competent authority, complying with all substantive procedures and indispensable requirements, besides the fact that the purpose, content, and motive are lawful, possible, clear, and precise and conform to the vision of a Social State of Law, which seeks to correct the economic distortions of the Retirement and Pension Regimes, with the aim of ensuring sufficient resources are available to cover the remuneration for retirements and pensions and to guarantee their financial stability and sustainability. Furthermore, it must be indicated that the contribution established by the Law to redesign and redistribute the resources of the special solidarity contribution is not disproportionate or unreasonable, nor abusive or arbitrary, nor can it be considered to aggravate the socioeconomic conditions of judicial retirees and pensioners, especially taking into account that Article 712 defines that in the case of Judicial Branch retirees and pensioners, the special contribution applies only after the amount of six (6) base salaries of the lowest paid position in the Judicial Branch is exceeded, which, as previously indicated, at the date would be remunerations exceeding approximately ₡2,550,000 colones, which exceed not only the income of many retired and pensioned persons from other retirement and pension regimes (and by far that of the CCSS) but also that of many salaried employees or independent workers who, as of today, form part of the economically active population. Moreover, it must be considered that the contribution is gradual and progressive. In the same manner, it is rejected that the Law to redesign and redistribute the resources of the special solidarity contribution is confiscatory and consequently unconstitutional, given that in accordance with its Article 513, the sum of the solidarity contribution plus the totality of deductions cannot exceed the cap of 55% of the gross pension amount. In this sense, it is worth underlining, as indicated previously, that this cap is even higher than the minimum established by ILO Convention 102. IV.- PETITION 1.- That the action of unconstitutionality filed against the Law to redesign and redistribute the resources of the special solidarity contribution, N°9796 of December 5, 2019, be rejected. 2.- That the petitioners be ordered to pay costs (...)”. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">14.-</span><span style="font-family:'Times New Roman'"> By means of a brief filed with the Chamber on June 3, 2020, Alejandra Hernández Sánchez, in her capacity as </span><a name="_Hlk164321686"></a><span style="font-family:'Times New Roman'">Vice Minister of Expenditures of the Ministry of Finance, responds to the granted hearing and expressly indicates the following: </span><span style="font-family:'Times New Roman'; font-style:italic">“(…) On the merits i. Concerning Law Number 9796, “Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution.” The object of this law is to contribute to the country's public finances by applying a redesign of the maximum pension caps and the pension exempt from the special solidarity contribution established on the special pension regimes. Likewise, the law seeks to grant continuity and applicability to the solidarity contribution as a contribution to achieve the sustainability of pensions, contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in tax burdens, and give sustainability to the pension systems through the new contributions. Regarding the cited law, when it was known as a Bill, the Office of the Comptroller General of the Republic indicated the following: 'The sustainability and fiscal impact of the retirement and pension regimes has been a constant concern for many years and has been communicated in multiple documents of the Office of the Comptroller General and other sources. In particular, regimes that operate with funds, such as that of the Judicial Branch and the Disability, Old Age, and Death regime, have been addressed through different studies, with a view to their long-term sustainability, given that they may come to represent a contingent obligation for the State. In the case of regimes financed from the National Budget, which are closed to new entrants, these already generate a deficit for the Government directly. This reality has originated, as the bill points out, some reforms for the establishment of measures that contribute to sustainability or that reduce the effect of said regimes on public finances.' In accordance with the foregoing, this Office considers that the variation in the amount of the pension exempt from the special solidarity and redistributive contribution on the pensions of the Pension Regimes indicated in its numeral 2, among these the one established in Law N° 8 called 'Organic Law of the Judicial Branch,' specifically, the reform of subsection a) of Article 236 bis of said normative body, does not violate any fundamental right, but rather that it obeys the constitutional principles of reasonableness, proportionality, equity, and financial equilibrium. The petitioners allege that the cited Law Number 9796 violates the constitutional principles of equality, legal reasonableness, non-retroactivity of the law, consolidated legal situations, legal certainty and the inviolability of one's own acts, and non-confiscation, which will be analyzed separately. ii. Concerning the violation of the principle of equality and alleged discriminatory categorization of pensions: The petitioner indicates that Judicial Branch personnel contribute 13.5% of their salary for their pension, while the rest of the population contributes 3.8%. Furthermore, retired judicial persons continue with a similar and equally disparate contribution compared to the rest of the pension regimes. They affirm that the Judicial Branch pension regime is self-sufficient and does not need help for its sustainability. They accuse that the reform specifically affects one group over any other pension regime, namely retired judicial persons, for whom, due to the amount of deductions, special contributions, CCSS, and taxes, their patrimony inevitably tends to diminish progressively and rapidly. Likewise, they allege that this contribution is not rational and creates inequalities for those who are pensioned, generating deterioration in their economic condition, by setting confiscatory deduction levels, which are not supported by technical and/or specialized studies involving all socioeconomic, actuarial, and quality-of-life factors of those who contribute to the regime, generating an economic deterioration of great proportions. They add that Law N° 9796 violates the principle of reasonableness, posing as an essential problem the discernment of a normative decision and how this would allow an unequal treatment to be reasonable. They indicate that this is the unresolved question of the law they challenge, by virtue of the fact that its foundation is inconsistent or even disproportionately burdensome for the sector of retired judicial persons, without any graduality that would allow the application of the regulations in a manner respectful of the stages of permanence in the regime. These rights must and have to be above the 'pro-regime' principle spoken of so much these days and which dehumanizes the reality and purpose inherent to the pension. On this matter, it is important to indicate that pension regimes are created within a framework of sustainability over time, in observance of the principles of solidarity and sufficiency established in the doctrine of social security. In the same manner, this sustainability is paired with the economic and financial equilibrium safeguarding public finances, since these must maintain an equilibrium seeking the satisfaction and payment of the respective amounts to pensioned persons. For this reason, it is considered opportune to reiterate the necessary balancing between the principle of budgetary equilibrium and the benefits borne by a Social State of Law, to which the Constitutional Chamber referred in Considerando IV of resolution N°19511-2018 of 21:45 hours on November 23, 2018, with which the facultative consultations of constitutionality of the bill N.° 20.580 (now the Law for the Strengthening of Public Finances, Law N.° 9635 of December 3, 2018) were decided, which due to their relevance are transcribed below: '…On this matter, in the face of a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant benefits, the decision of the competent authorities to define and apply suitable measures to mitigate or solve the problem is not only reasonable but, even more, is unavoidable. (…) In this context, a harmonious interpretation of the principle of budgetary equilibrium and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary that sound management of public finances be carried out; that is, there must inexorably be an equilibrium between the benefit rights and the state's economic solvency, since the former depend on the material possibilities fostered by the latter, while the sense of the latter is to strengthen the development of a solidary political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Stated another way, the "ideal" Social State of Law is the "possible" Social State of Law, against which precisely action is taken when the principle of budgetary equilibrium is breached, since, in the medium term, that seriously risks or entirely prevents obtaining the necessary resources to sustain a "real" Social State of Law, one that the most vulnerable can truly and effectively enjoy. (…) Corollary of what has been expressed: the non-observance of the principle of budgetary equilibrium has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal character of this principle and to emphasize its real implementation for the sake of the principle of the Social State of Law. (…)' There is no doubt that the weak state of public finances has forced the country to have to take and apply unavoidable measures that contribute to achieving the budget balance referred to by the Constitutional Chamber, so that there is economic solvency to be able to meet the State's obligations and give sustainability to the pension regimes. The constitutional precepts that sustain those healthy finances compel the State to always have the purpose of satisfying the needs of the country's inhabitants, without entailing an irresponsible increase in spending, nor neglecting some for the benefit of others. In this regard, constitutional Article 33 develops the topic of equality before the law as follows: 'Article 33.- Every person is equal before the law and no discrimination contrary to human dignity may be practiced.' On the other hand, we have that Constitutional Article 50 develops the topic that the State must ensure an adequate distribution and management of public resources, as follows: 'The State shall procure the greatest welfare for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth...' The principle of equality does not purport to be absolute in character, as it does not properly grant a right to be equated to any individual without distinction of circumstances or conditions; on the contrary, it demands that no differences be made between two or more individuals or groups thereof who are in conditions that are either identical or in the same legal situation, meaning that equal treatment cannot be sought when the conditions or circumstances are unequal. On this topic, in resolution number 1372-1992 dated May 26, 1992, the Constitutional Chamber held the following: 'The principle of constitutional equality generates the administrative principle of equality before public burdens, that is, giving the same treatment to those who are in analogous situations, excluding any arbitrary or unjust distinction against certain persons or categories of persons; consequently, persons or assets that are singularly determined must not be affected, because if that were possible, taxes would have a persecutory or discriminatory character. Generality is an essential condition of the tax; it is not admissible to tax one part of the subjects and exempt another.' (Resolution N° 4829-1998 and in a similar sense, 580-1995, 633-1994, 5749-1993, and 2197-1992) 'III.- Constitutional jurisprudence, through various pronouncements, has managed to distill the content of the principle of equality established in Article 33 of the Constitution, indicating that by means of it, it is prohibited to make differences between two or more persons who are in the same legal situation or in identical conditions, without it being possible to seek equal treatment when the conditions or circumstances are unequal; in principle, equal treatment is accorded to equal situations and different treatment is possible for different situations and different personal categories. That very simple formula was recognized many years ago by the Constitutional Court, currently the Supreme Court of Justice, which was in charge of hearing appeals of unconstitutionality before the creation of this specialized Chamber. But the requirement of equality does not legitimize just any inequality to authorize differentiated treatment; to determine if discrimination is truly justified, one must analyze if the reason producing it is reasonable, that is, if, based on the particular circumstances of the case, diverse treatment is justified.' Said equality will be violated when the inequality lacks an objective and reasonable justification; therefore, there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. The principle of equality, together with the right to social security and other fundamental rights, is intended to be satisfied only with the participation of all. The point is that the protected legal interest is satisfied through shared responsibility between the individual and society. With which, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution seeks to safeguard this. In the present case, the cited Law N° 9796 intends, through its Article 4, to lower the exempt base for payment so that, from this base, the collection of the solidarity contribution proceeds in accordance with the salary regime to which the official belongs, among them the Pension Regime established in the Organic Law of the Judicial Branch, providing the following: b) Up to six (6) base salaries of the lowest paid position in the Judicial Branch for the case of pensions and retirements contemplated in Law N.º 8, Organic Law of the Judicial Branch, of November 29, 1937. In this way, an attempt is made at economic equilibrium and the sustainability of the pension regimes, in order to maintain the same current and future benefits for all persons who opt for retirement. We must remember that precisely in accordance with the principle of equality, differentiations must be established for unequal circumstances, thus complying with the principle of equality, so that unequals are treated unequally. Under these premises, it would be unconstitutional for pensions chargeable to the National Budget not to be regulated in a gradual manner in accordance with the amount to be received, based on the contributions made and the time worked, and establishing a maximum and fair cap according to those circumstances. Currently, a percentage of the State's income is allocated to the payment of this item, while the remaining percentage comes from taxes paid by all Costa Rican persons, a situation that violates just distribution as a constitutional legal interest and rewards some retirees with a very high standard of living for their life as a pensioner, just as if they were still in their productive life. With the special, mandatory, and scaled solidarity contribution contemplated by Law 9796 in question, the minimum contribution base would be reduced to the base amount of 2,600,000 colones, in the case of the Judicial Branch regime, an amount that allows for an adequate standard of living and is much higher than the current pensions of the retirees of the Disability, Old Age, and Death Regime administered by the Costa Rican Social Security Fund. On the other hand, with respect to the alleged discriminatory categorization of pensions, it should be noted that pension regimes are created within a framework of sustainability over time, in observance of the principles of solidarity and sufficiency established in the doctrine of social security. iii.

On the Principle of Non-Retroactivity of the Law: Regarding the alleged violation of the principles of non-retroactivity and inviolability of assets (intangibilidad patrimonial), in the present case, there is in reality no controversy over the right to the pension (there is a right to the payment of an economic benefit, but not to a specific amount), as it is rather a matter of the "future" application of a special, mandatory, and staggered solidarity contribution, whose minimum contribution base is reduced by virtue of the reform referenced in the cited Ley 9796. On this aspect, the petitioner argues that the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired good or right from a person's assets. He points out that what is relevant is that the state of affairs enjoyed by the person was already defined as to its elements and its effects, even though these are still being produced or have not even begun to be produced. In this way, he considers that the person has a right to the consequence, not to the rule. Therefore, he indicates that acquired rights (derechos adquiridos) must be understood as rights that definitively enter the assets of their holder (they do not fall under the concept of mere expectations) and consolidated legal situations (situaciones jurídicas consolidadas) are those that can never be modified. He claims that the reform established in Ley N° 9796 affects acquired rights of all persons who have already contributed and have been granted pensions under the guidelines issued for the pension fund in the Ley Orgánica del Poder Judicial, such that those rights must continue just as they were granted before the enactment of the challenged Law, otherwise legally granted rights would be violated, affecting the economic, family, security, and quality of life situations of the majority of older adults, who depend on this right for their maintenance. He indicates that the deputies, in their discussions, referred to an actuarial study which indicates that pensions should not be granted in amounts exceeding 2,600,000 colones, but that recommendation is for the future; at no point does the study state that the setting is retroactive. He adds that, from the moment a worker enters the retirement system, the worker is protected, not only by the legal and regulatory rules and criteria of the system itself, but also by the constitutional norms and principles that enshrine their right to retirement or surround it with the special guarantees of the Fundamental Law, among them the one that prohibits giving the former retroactive effect to the detriment of any person, or of their acquired rights or consolidated legal situations, as well as the principle of "one's own acts" (actos propios), according to which public authorities cannot go against their own declarative acts of rights, except for strictly regulated exceptions. Likewise, he considers that the Law challenged here is contrary to the provisions of Article 73 of the Constitución Política, which endows pensions and retirements with the character of a constitutional right. In the first instance we must indicate that in our system, various special pension regimes have been created by legislative means, substituting the general disability, old age, and death regime administered by the Caja Costarricense de Seguro Social. The existence of these special regimes has been repeatedly endorsed by the Sala Constitucional, for example, in its judgment number 846-92 of 1:30 p.m. on March 27, 1992, in which it ruled that the existence of special retirement or pension regimes is not contrary to the Constitution, provided that the State's contribution as such is equal for all regimes. Based on the foregoing, it is important to note that the Asamblea Legislativa has not only the possibility but the duty to adopt the necessary measures to guarantee the sustainability of the various special pension regimes, through the approval of the laws necessary to achieve that objective. On the other hand, it must be remembered that said principle has constitutional value, as established in Article 34 of our Constitución Política, let us see: "Article 34: No law shall be given retroactive effect to the detriment of a person, or of their acquired property rights or consolidated legal situations." Likewise, the Principle of Non-Retroactivity (Principio de Irretroactividad) is defined in doctrine as follows: "Retroactivity is understood as the projection of the temporal scope of norms to facts or conduct prior to their enactment"… Those past situations, to which present legal consequences are connected, may have been carried out entirely in the past (authentic retroactivity), or have begun in the past and continue into the present (improper retroactivity)". A., PEREZ LUÑO: La Seguridad Jurídica, Editorial Ariel S.A., Barcelona, 1991, p. 91. That is, if the effects have already occurred, the new norm cannot affect them, but it can affect effects in the course of execution where they have not yet generated effects. On the contrary, improper non-retroactivity must be settled by taking into account the occurrence of the fact to which the norm connects a legal effect. On the matter, the author Juan Alfonso Santamaría Pastor defines non-retroactivity in the following terms: "That is, to the extent that the extension of the effects of norms to facts and conduct occurring prior to their effectiveness has as its limit the acquired property rights and the consolidated legal situations under the protection of other norms, these other norms, which are no longer formally in force, continue to regulate those rights and those legal situations (see, SANTAMARÍA PASTOR, Juan Alfonso, Fundamentos de Derecho Administrativo, 1991, p. 384.)". Thus also, the Sala Constitucional has ruled on the Principle of Non-Retroactivity in the following terms: "The concepts of 'acquired right' and 'consolidated legal situation' appear closely related in constitutionalist doctrine. It is feasible to affirm that, in general terms, the former denotes that circumstance consummated in which a thing -material or immaterial, whether a previously owned good or a previously non-existent right- has entered into (or impacted upon) the patrimonial sphere of the person, such that the person experiences an ascertainable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much an additional asset, but a state of affairs fully defined as to its legal characteristics and its effects, even though these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not that those effects still persist or not, but that -by virtue of a legal mandate or a judgment that has so declared- a clear and defined rule has already come to legal life, which connects a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then'; that is to say: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that, necessarily, the conditioned effect must also occur. In both cases (acquired right or consolidated legal situation), the legal system protects -making it intangible- the situation of the one who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired good or right from a person's assets, or of causing that if the factual premise had occurred prior to the legal reform, the consequence (advantageous, it is understood) that the interested party expected from the consolidated legal situation will no longer arise. Now, specifically regarding the latter, it has also been understood that no one has a 'right to the immutability of the legal system', that is, that the rules never change. Therefore, the constitutional precept does not consist of the fact that, once born into legal life, the rule that connects the fact with the effect cannot be modified or even suppressed by a later norm; what it means is that -as explained- if the conditioning premise has occurred, a legal reform that changes or eliminates the rule cannot have the power to prevent the conditioned effect that was expected under the empire of the prior norm from arising. This is so because, it is said, what is relevant is that the state of affairs enjoyed by the person was already defined as to its elements and its effects, even though these are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule...". Resolution N. 2765-97 of 3:03 p.m. on May 20, 1997. From the above, it is understood that an element for stipulating whether a legal norm has a retroactive effect and for establishing the application of laws over time is the existence of legal situations. Now, the consolidated legal situation is a subjective situation, because it is the consequence of an individualization of the normatively established rule, and which grants or recognizes a right or removes a legal quality or state. Thus also, in judgment number 2765-97, at three hours and three minutes in the afternoon on May 20, 1997, the Constitutional Court stated regarding the scope of the Principle of Non-Retroactivity what is detailed below: "In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired good or right from a person's assets, or of causing that if the factual premise had occurred prior to the legal reform, the consequence (advantageous, it is understood) that the interested party expected from the consolidated legal situation will no longer arise. Now, specifically regarding the latter, it has also been understood that no one has a 'right to the immutability of the legal system', that is, that the rules never change. Therefore, the constitutional precept does not consist of the fact that, once born into legal life, the rule that connects the fact with the effect cannot be modified or even suppressed by a later norm; what it means is that – as explained- if the conditioning premise has occurred, a legal reform that changes or eliminates the rule cannot have the power to prevent the conditioned effect that was expected under the empire of the prior norm from arising. This is so because, it is said, what is relevant is that the state of affairs enjoyed by the person was already defined as to its elements and its effects, even though these are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule". In the case under analysis, the new precept is not suppressing the granted benefit. All it does is regulate a future situation, in the sense that it expands the grounds for restitution by virtue of eventual future acts in which the beneficiary might incur. From this perspective, the norm has no effect of a retroactive nature that affects an acquired right or its consequences or effects, since it is situated in the future. Furthermore, it is sufficient for the governed subject to determine not to incur in one of the new grounds to avoid the future application of the new law". Thus, retroactivity manifests when a new legal norm seeks to invade the domain of application of the prior one, applying itself to facts that occurred before its entry into force. If one wishes to establish whether a norm is retroactive, it must be defined whether its application is to the future, or, on the contrary, if it attempts to break into facts or situations already occurred or in the course of execution. In light of the provisions of Article 34 cited, it must be understood that the referenced contribution must be applied to pensions that are in progress and those granted in the future, that is, there is no violation of the principle of non-retroactivity because it does not meet the premise contained in said article. The foregoing, provided that the premise established by the challenged norm is met, that is, that the amount received as a pension exceeds more than six times the lowest base salary paid by the Poder Judicial for the case of pensions and retirements in Ley N° 8, Ley Orgánica del Poder Judicial, dated November 29, 1937. Furthermore, as we have already indicated, with the intent to apply said contribution to pensions, it is not intended that retired persons return the amounts that were paid to them up to June 21, 2020 (acquired right) for the pension, since the application of the deduction for the cited contribution is being carried out towards the future. Said contribution, by way of contribution, obeys the objectivity required to maintain both the economic balance of the resources and the security for current and future pensioners, and in this way provide stability to the regime, which can only be achieved by applying the repeatedly cited Ley número 9796, for which reason it in no way implies a violation of the Principle of Non-Retroactivity as the petitioner makes it seem. It is reiterated that the stability or sustainability of the pension regimes must not suffer a financial imbalance; on the contrary, what is sought is that with the application of the norm, and therefore the referenced contributions, permanence is given to the retiree and their pension is not compromised, such that other solutions that might compromise the existence of the budget allocated for that purpose do not have to be sought. In the case under study, there is no injury to the prohibition of non-retroactivity, since what the challenged norm has ordered is the mandatory application ex nunc (from now) and not ex tunc (from then), of a determined special, mandatory, and staggered solidarity contribution; whose minimum contribution base is reduced, by virtue of the referenced reform, to apply the charge to a base amount of 2 million 600 thousand colones, both to future pensions and to pensions and retirements in the course of payment. As of the effectiveness of the cited Ley número 9796 and into the future, the rules regarding the establishment of that minimum threshold for the application of the contributions are different, thereby seeking to compensate past imbalances and guarantee the survival of the system; with which acquired rights are not affected either, given that what has been recognized is a fundamental right to a pension, but not to a specific amount. According to the dynamic meaning of acquired rights, one must differentiate the emergence of the right from its effects; the right emerges from the exhaustion of the hypotheses provided for in the regulation; that is, they respond to exhausted situations, while the effects are projected into the future and can be varied by virtue of new norms. Thus, the distinction between the rights and their effects allows the application of new laws to the successive effects of a right, without this entailing that said laws have retroactive effects. It is concluded that these dynamic theses suggest that acquired rights can have two components: an intangible core represented in the right itself, and dynamic elements, which can vary over time and which relate mainly to the conditions under which the right can be exercised or to the periodic benefits that arise from it. Thus, based on that conceptual premise it can be affirmed that the Constitution protects acquired rights against normative retroactivity; that is, already formed situations and not the conditions for exercising the right, which means that whoever is enjoying a right whose effects are consolidated in a staggered manner or in a successive tract - such as, for example, a pension, has their right protected by the Constitution, but the effects that have not yet been consolidated are modifiable by virtue of constitutional purposes and subject to the limits imposed by the Charter itself. Likewise, it must be indicated that, while there exists a fundamental right to a pension widely consolidated in the jurisprudence of the Sala Constitucional, this Court has also specified that there is no right to the benefit derived from that right being for a specific amount, because "…the pension or retirement can be varied according to circumstances, either to reclassify the benefit by increasing or decreasing it, when the contribution of the benefits is not sufficient to cover its quota in the cost of the regimen...". (Judgments 1925-91 of 12:00 p.m. on September 27, 1991, 2379-96 of 11:06 a.m. on May 17, 1996, and 3250-96 of 3:27 p.m. on July 2, 1996). Thus, in judgment 1925-91 of 12:00 p.m. on September 27, 1991, that Court ruled on a constitutionality consultation filed by several deputies regarding the validity of a comprehensive reform to the Ley de Pensiones y Jubilaciones del Magisterio Nacional. Among the consulted topics was the validity of the then Article 6 of the bill, as it was considered that it could violate the principle of constitutional reasonableness by providing that any person enjoying a pension would be excluded from the possibility of holding positions in the Public Administration. This Chamber, in the aforementioned judgment, considered that the norm did not violate the Constitution, but, on the contrary, was in accordance with the principle contained in Articles 50, 56, and 74 of the Constitución Política, according to which the State must promote the most adequate distribution of wealth, organizing production and promoting that everyone has an honest and useful occupation; given that resources and means of subsistence are limited, it is not unreasonable to restrict the simultaneous receipt of a pension and a State salary: "The Constitución Política in the Chapter on Social Rights and Guarantees declares its adherence to the Christian principle of social justice, which is the cornerstone of all solutions that the legislator must dictate regarding the social question. Thus, there are values and principles constitutionally assumed, such as solidarity, equality, and the effective participation of all in the economic life of the country, which are an expression of that essential cause of the social. Indeed, Article 50 establishes that the State must procure the greatest well-being of all the country's inhabitants, being obliged to organize and stimulate production and the most adequate distribution of wealth; Article 56 indicates that the State must procure that everyone have an honest and useful occupation; and Article 74 declares that the legislation enacted to organize the factors participating in the production process (social and labor legislation) must essentially be based on the indicated principle. Consequently, starting from the fact that the means of production and subsistence are not unlimited, that a sector of the population, as is public and notorious, lacks justly remunerated occupation, and that social rights and guarantees are supported by these essential principles and values, the provision intended to be approved is not irrational. If one of the goals of the State is the better distribution of wealth to achieve, among other things, the incorporation of all into productive life, it cannot be contrary to reason to prevent the accumulation of resources in some to the detriment of the needs of others, which would implicitly involve the accumulation of privileges not based on a situation of need, to the detriment of those who, legitimately aspiring, see access to the right to work, to an honest subsistence, and to self-fulfillment closed, for causes beyond their own will. The Chamber does not share the terms of the Consultation, in the sense that the bill excludes retired or pensioned persons, in a general manner, from holding positions in the Public Administration. What the norm proposes is to reiterate a concept of long-standing identity, which is to avoid the simultaneity of holding a public function and enjoying a retirement benefit". Now, in the specific case of special contributions, this Chamber, in its judgment No. 3250-96 of 3:27 p.m. on July 2, 1996, indicated that such contributions are not unconstitutional because they find their basis in the social nature of the right to retirement, a nature that is inscribed within the principles that make up the Social State of Law, reflected in Article 50 of the Constitución Política. In the mentioned resolution, the Sala Constitucional ratified the validity of a contribution very similar to the one challenged in this action. On that occasion, it indicated the following: "… the contribution charged to pensioners of the Régimen de Pensiones del Magisterio Nacional in Article 12, and the exclusion from said contribution made as an acquired right in Transitory Provision I, both of Ley número 7268, do not violate Article 34 of the Constitución Política, as they form part of the list of limitations that have validly formed part of the fundamental right to retirement that the petitioner holds since its inception and from which they cannot withdraw because they acquired them along with it. (…) The manner in which Article 12 of Ley 7268 regulates the contribution charged to pensioners of the Régimen del Magisterio Nacional does not contravene Article 45 of the Constitución Política, first, because it respects the principle of progressivity (the only fault noted when evacuating the Legislative Consultation in due course and which Parliament took care to amend) thereby leaving practically intact an amount sufficient in the Chamber's judgment to guarantee the effective enjoyment of the right to retirement, and second, because the amounts collected for the various excesses that occur in specific cases have a clear protective and uniforming purpose for the benefit of the group of people for whom the regime was established; that is, they are aimed at the social well-being of all or of the great majority of the members for whom the regime was conceived. This may entail that in some retirement systems there exist redistributive norms for those cases that can be called, if you will, extraneous to the rationale of the regime and that must therefore undergo a process of uniformization to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the regime's beneficiaries, having to make, consequently, -if it is their desire to continue enjoying the system's benefits- a greater contribution for receiving a greater compensation in relation to the persons who were taken into consideration when designing the system -in this case, the teachers-, who receive a substantially lower salary and, consequently, so is their retirement or pension. It is just then -due to the solidarity-based nature of the regime- to set a sufficiently high maximum amount that allows the inclusion of the higher salaries of the fund's own beneficiaries and to subject to greater participatory requirement those who are above it, as they always come from obligations not contemplated among those taken into consideration when setting the system's bases." (Emphasis not in original) In this regard, it must be taken into consideration that the guarantees that the Constitution provides in favor of pensioned persons cannot be interpreted in the sense of curtailing the legislator's exercise of the function that the Constitution itself has entrusted to it, because that would be to petrify the dynamic exercise of legislating on specific groups of individuals, to the frank detriment of generality. It is for this reason that this Office considers that the challenged norms do not infringe acquired rights, consolidated legal situations, the prohibition of retroactivity, or the doctrine of the survival of the abolished right. iv. On acquired rights and consolidated legal situations Our Constitución Política establishes the rules governing the validity and effectiveness of legal norms, which is how this Fundamental Charter indicates that the legal norm maintains its validity and the possibility of producing legal effects until it is repealed by a later one2 or declared unconstitutional by the Sala Constitucional. This means that, legally, the law is obligatory and applicable until the corresponding act of the competent authority aimed at ending that obligatoriness occurs. The foregoing does not in any way mean that the Administration may or must ignore acquired rights in good faith (derechos adquiridos de buena fe) or consolidated legal situations upon the disappearance of a norm, because such action would go against the provisions of Articles 34 of the Constitution4 and 193 of the Ley de la Jurisdicción Constitucional. Indeed, Article 193 of the Ley de la Jurisdicción Constitucional establishes that the provision contained in Article 91 of that body shall not be applied with respect to those legal relationships or situations that have been consolidated by statute of limitations (prescripción) or lapse (caducidad), by virtue of a final judgment having the authority of res judicata (cosa juzgada material) or by consummation in fact, when these are materially or technically irreversible, or when their reversal would seriously affect acquired rights in good faith; all of the foregoing, without prejudice to the powers of the Sala Constitucional, in accordance with said article. Now, given that an adequate understanding of the legal scope of the concepts "acquired rights in good faith" and "consolidated legal situations" is pertinent, we shall set forth below what doctrine and administrative and judicial jurisprudence have said on the matter. For Costa Rican doctrine, a right is acquired or a legal situation is consolidated when the factual situation provided for by the norm for the production of the effects that the same provision regulates occurs. For his part, Diego Baudrit Carrillo, a Costa Rican jurist, makes a correct distinction between acquired rights and mere expectations of a right, noting that the former are those that have definitively entered the holder's assets and that, therefore, a third party cannot dispossess them of them, while the expectation can disappear by a private will unrelated to its holder. In this sense, German Cascante Carrillo tells us that an acquired right is that which, by reason of the law itself, is irrevocably and definitively incorporated into a person's assets, for which reason, he adds, when a new legislation clashes with, suppresses, or modifies the preceding legal situation, in principle and by effect of the non-retroactivity of laws, unless expressly indicated otherwise, acquired rights are respected by the new law. For the delimitation of the concept of acquired right, the jurist García Trevijano sets forth three criteria. The first puts emphasis on the mode of acquisition of the rights, considering as such those recognized only in specific titles, but not those derived from a law. For the author, this position is unconvincing, since there "is no doubt that a singular law can derive acquired rights like any other legal act (…)". The second criterion poses the differentiation of the subjective right and the reflexive right and, also, between the right in itself and the expectation of the right. In this way, only those cited in the first place in each of the two alternatives could be considered as acquired rights. This thesis, of clear German inspiration, understands that the central core of acquired rights would be constituted by patrimonial rights and fundamentally by property. The combination of the previous thesis with the one proposed below provides a method for the definition of the concept under analysis. This third criterion proposes the investigation in each specific case of whether the right has been exercised or at least, whether it could have been exercised. Only in the event that the above questions could be answered affirmatively could one speak with certainty of the existence of an acquired right. By reason of the foregoing, it is observed that for an acquired right to exist, it is necessary for the holder of the right to fulfill the requirements established by the legal system. The foregoing so that it is irrevocably incorporated into their assets, becoming a certain and unmodifiable right of which the holder can no longer be dispossessed; not even by virtue of the enactment of new legislation. This is because an acquired right exists when all the normative premises provided for in the law in force as the generating cause of such right have been realized. Now, the consolidated legal situation is the position in which the holder of the acquired right finds themselves, whether this is the product of law or contract.

For example, the creditor finds themselves in a consolidated legal situation (situación jurídica consolidada) insofar as they are the holder of an acquired right (derecho adquirido) of credit. While the acquired right is the credit, their position as creditor constitutes a consolidated situation. On this matter, the Constitutional Chamber (Sala Constitucional) has repeatedly ruled on the concepts of “acquired rights in good faith” and “consolidated legal situations,” noting that these figures are logical consequences of the constitutional guarantee of non-retroactivity of the law, enshrined in Article 34 of our Political Constitution. Furthermore, that constitutional Court has noted that the word “law” must be understood in its generic sense, as referring to legal norms in general. From its beginnings, the Constitutional Chamber has been noting that the principle of non-retroactivity, like the others relating to fundamental rights or freedoms, is not merely formal, but also material. Thus, it is affected not only when a new norm or the reform of a previous one illegitimately alters acquired rights or consolidated situations under the protection of the previous norm; but also when the effects, interpretation, or application of the latter produces an unreasonable or disproportionate harm to the holder of the right or situation that it itself enshrines. For the Constitutional Chamber, a legal situation can be consolidated with a judicial ruling that declares or recognizes a disputed right, and also under the protection of a legal norm that establishes or guarantees certain consequences that a later law cannot disregard without incurring a defect of unconstitutionality, due to an infringement of Article 34 of the Political Constitution. The concepts of "acquired right (derecho adquirido)" and "consolidated legal situation (situación jurídica consolidada)" appear closely related in constitutional doctrine. The acquired right denotes that consummated circumstance in which a thing—material or immaterial, whether it be a previously foreign good or a previously non-existent right—has entered into (or had an impact on) the person's patrimonial sphere, such that they experience a verifiable advantage or benefit. Also, the Constitutional Chamber16 has noted that the acquired right is that which has been definitively obtained, by the validity of the norm, even when it has formally ceased, provided it gave a basis for the enjoyment of the right, to the extent that there is no need to resort again to the repealed text, for if that were the case, it is evidently no longer possible to grant any benefit, because it was repealed. For its part, the consolidated legal situation represents not so much a patrimonial gain, but a state of affairs fully defined in terms of its legal characteristics and its effects, even when these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still endure or not, but rather that—by virtue of a legal mandate or a ruling that has so declared—a clear and defined rule has already emerged in legal life that connects a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type «if..., then...»; that is to say: if the conditioning fact has occurred, then the "consolidated legal situation" necessarily implies that the conditioned effect must also occur. In both cases (acquired right or consolidated legal situation), the legal system protects—making it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the law's non-retroactivity translates into the certainty that a change in the legal system cannot have the consequence of removing the good or the already-acquired right from the person's patrimony, or of causing that, if the factual premise had occurred prior to the legal reform, the (advantageous, it is understood) consequence that the interested persons expected from the consolidated legal situation no longer arises. Now then, specifically in relation to the latter, it has also been understood that no one has a "right to the immutability of the legal system," that is, for the rules to never change. Therefore, the constitutional precept does not consist of the rule that connects the fact with the effect, once born into legal life, being unable to be modified or even suppressed by a later norm; what it means is that—as explained—if the conditioning premise has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the previous norm from arising. This is so because, it was said, what is relevant is that the state of affairs the person enjoyed was already defined in terms of its elements and its effects, even if these are still occurring or have not even begun to occur. Thus, what the person has a right to is the consequence, not the rule. Now then, in the case sub examine, it is feasible to exemplify the previous concepts based on the elements of the specific case. In this way, the contribution will be paid on the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch, so we can say that: a) The protection of the acquired rights of pensioned persons means, in this case, that despite the entry into force of the mentioned Law 9796, all the patrimonial rights of said pensioned persons must be considered irrepeatable, that is, the pensioned person does not have to pay any money to the Administration for the amount they contributed by way of contribution to the respective regime, before the entry into force of the challenged law. To the extent that they had definitively entered the patrimony of these persons prior to the new law’s entry into force, it would be absurd—and unconstitutional—to intend that they must be returned, or something similar. b) The protection of consolidated legal situations implies that, while the interested persons could not claim that the norms in question (and, with them, the rule they created) could never again be subject to reform, they did have the right to expect that the consequence they anticipated would arise regarding themselves and all other persons subject to the same state of affairs. That state of affairs was characterized by the rule that causally connected their factual situation to the effect provided for in the norm. The fact that the rule has been reformed cannot have the virtue of producing that the consequence to which they were already entitled no longer arises for them. This could only occur, ex nunc, for those who, on the date of the legal reform or the declaration of unconstitutionality, had not acquired that title. This means that all the payments that pensioned persons had enjoyed prior to the legal reform that modifies the amount exempt from the special, solidarity-based, and contributory Contribution, can be classified as acquired rights in the terms previously set forth. After said reform, only those consolidated legal situations would be protected, that is, those situations whose effects have already been produced under the protection of the norm that was reformed. Regarding this last aspect, it is important to insist, for purposes of clarity, that the fact that a pensioner had been enjoying, for “x” number of years, a pension without the application of any additional contribution, by way of contribution to the regime, does not mean that they have an acquired right or a consolidated legal situation with respect to this benefit, because from the moment the norm was reformed, there no longer exists legal support to cover said payment; let us recall that the enjoyment of a specific pension amount in the future cannot be qualified as an acquired right or a consolidated legal situation, but rather as an expectation of right. Added to the foregoing, it is necessary to indicate that the legislator can modify the conditions of the pension regimes without this implying the violation of any acquired right. Moreover, this Honorable Chamber has stated that the implementation of limitations on pension regimes does not represent any problem of constitutionality, provided said limitations adhere to the principles of reasonableness and proportionality. Hence, the amount of future pensions may vary as long as they are not completely suppressed, since if they are suppressed, this would imply that the right to a pension has been revoked in disregard of the protection of acquired rights. Ultimately, the guarantees that the Constitution provides in favor of pensioned persons cannot be interpreted as curtailing the legislator's exercise of the function that the Constitution itself has entrusted to them, for this would petrify the dynamic exercise of legislating on specific groups of individuals, to the frank detriment of generality. v. On the constitutional principle of rationality and proportionality. As part of the basis set forth by the plaintiff in their arguments, they indicate that the percentages established in the challenged law are applied to gross amounts, which generates a double levy on the monies received, since that deduction is applied on mandatory deductions that each pensioned person must pay, such as income tax and the 13% mandatory contribution percentage to the regime, becoming a double tax rate on the same benefit, which they consider improper and evidence the tax voracity sought to be imposed on pensions. For the foregoing, they also deem the challenged regulations contrary to Article 40 of the Political Constitution. Now then, to carry out an examination of this aspect, it is necessary for the claimant to provide proof or, at least, elements of judgment on which to base their argument, being that the failure to meet these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to perform an analysis of “reasonableness” without the existence of a coherent line of argument that is evidentially supported. From the study of the action, it is noted that it not only fails to clearly and concisely indicate the reasons that lead them to conclude that the challenged norm is unreasonable, but also fails to provide any proof that allows reaching that conclusion, transforming the debate into the exposition of subjective and highly abstract concepts. Moreover, this case does not present the characteristics of a situation of "unreasonableness" that is evident and manifest, and also easily perceptible; rather, it could be justified that the norm conforms to the purpose of the legislative reform, which is to correct the economic distortions of the pension system charged to the National Budget, with the purpose of securing the payment of pensions and guaranteeing the financial stability of the system. vi. On the violation of the principle of protection of older adults. Added to the foregoing, regarding this allegation, the plaintiff indicates that the right to a retirement forms part of the list of rights to be protected by the constitutional judge, rights that, although they can be limited, these limitations must be imposed in accordance with international agreements with supra-constitutional weight that increase the spectrum of protection of workers' rights: for example, ILO Convention No. 102. Based on the foregoing, they allege that the pension fund of the Judicial Branch cannot be modified by means of the law they challenge in this venue, first, because it undermines the higher value of international norms; second, and more importantly, because it must be interpreted according to the pro homine principle in favor of retired persons, that is, the non-affectation of their fundamental human rights and those of vulnerable groups: much less to regulate aspects that are not specific to the same pension regime, but to be diverted to sustain public finances or other pension regimes that have been neglected and inefficient in their management. For the foregoing, they deem the challenged regulations contrary to Article 7 of the Political Constitution and with irreversible consequences for the pensioned older adult population. Regarding this, we must indicate that while there exists a fundamental right to a pension widely consolidated in the jurisprudence of the Constitutional Chamber, it has also been specified that there is no right to the benefit derived from that right being for a specific amount, because “…the pension or retirement can be varied according to the circumstances, whether to recalibrate the benefit by increasing or decreasing it, when the contribution of benefits is not sufficient to cover its quota in the cost of the regime...". (Rulings 1925-91 at 12:00 hrs on September 27, 1991, 2379-96 at 11:06 hrs on May 17, 1996, and 3250-96 at 15:27 hrs on July 2, 1996, 1625-2010 at 09:30 on January 27, 2010, 19485-2018 on November 21, 2018, and 236-2019 at 12:02 on January 9, 2019). Recapitulating, nothing opposes, within the constitutional framework, the legislator introducing reforms to the Social Security system and regulating or modifying, towards the future, the normative elements that legal operators must consider to recognize the pension amount in the special contributory systems charged to the National Budget, which it does in the exercise of the powers that the Political Constitution itself has entrusted to it and which entail a certain margin of discretion, allowing it to validly introduce the reforms that, according to economic needs and social conveniences, as well as the evolution of the times, it deems necessary for the effectiveness and guarantee of the right to a pension, it being so that at no time is the older adult left unprotected, for it is always done under the principles of reasonableness and proportionality. Now then, regarding the alleged absence of fair studies in accordance with what Norm 102 of the International Labour Organization (ILO) establishes, it is important to mention that, within the limits to the legislative power of configuration of the different special substitute pension regimes, is the respect that must prevail for the constitutional principles of reasonableness and proportionality, as well as the necessary adjustment of the law to the prohibition of confiscation, being that the best way to avoid infringements of those constitutional principles is basing the reform intended to be carried out on technical-actuarial studies that demonstrate the necessity, reasonableness, and proportionality of the initiative. It is worth mentioning that the required studies were requested with a view to long-term sustainability, and being that the referred reports are available, there would be no unconstitutionality in this regard. On this point, the Comptroller General of the Republic (Contraloría General de la República) noted in report number DFOE-SAF-0336 of July 1, 2019, that equity and similarity in the conditions of the different regimes must prevail. On the subject, the Constitutional Chamber has indicated that “…that possibility of modification that the State has granted in its favor finds limits not only from the Political Constitution, but also from International Law, among which those established in Convention number 102 of the International Labour Organization relating to the minimum standard of social security stand out, which indicates, for what is relevant here, that the benefits granted in application of the cited Convention and the administrative expenses must be backed by technical studies and not be established or modified by a political, arbitrary, or whimsical decision of the Administration, benefits among which is found the contribution amount for the pension regime by the employee and the State as such and as employer and which obliges basing those variations on actuarial studies related to the solvency of the regime affected.” (Ruling No. 2379-96 at 11:06 hrs on May 17, 1996). Evidently, the legislator has a certain margin of discretion to regulate the conditions under which the special pension regimes must operate, but that margin of discretion is not absolute, but rather must find backing in objective data emanating from technical studies. Regarding the possible infringement of ILO Convention 102, we must indicate that articles 65.3 and 67.a of that instrument expressly establish that a maximum may be prescribed (meaning determined by national legislation or by virtue thereof, according to art. 1.1 Ibid.), according to the rule fixed by the competent authorities, for its amount, provided that this maximum respects the minimum established by the Convention itself, which in the case of old-age benefits is 40% of the total salary of the ordinary unskilled worker (arts. 65, 66, 67 Ibid.); which constitutes a parameter of constitutionality (conventionality) of the quantum of the pension. Regarding this, the plaintiff points out that, upon retiring, attention to family obligations does not end. However, setting a cap on the calculation of the pension right is constitutionally valid, for which reason this Office considers that the challenged norms do not infringe at any time the right to a dignified remuneration contained in Article 3 of the Universal Declaration of Human Rights, nor do they impair what is established in the Inter-American Convention on the Human Rights of Older Persons (approved by Costa Rica through Law No. 9394 of September 8, 2016), nor the Comprehensive Law for the Older Adult, because the reform introduced in Law No. 9796 obeys the constitutional principles of reasonableness, proportionality, equity, and financial balance and, with it, seeks rather to give future sustainability and stability to the pension systems. Furthermore, according to the ruling of February 28, 2003, in the case of five pensioners –vs− Peru, the Inter-American Court of Human Rights admitted that by law in the strict sense and for public or social purposes (reasonable financial criteria –fiscal savings–, which, with a legitimate aim, tend to preserve the general welfare, justified in the financial stability of the State in general, and in particular, of the public sector pension system), the patrimonial effect of Social Security pensions and especially their amount can be limited or reduced “in the future”; implying that the restrictions can validly encompass existing pensions (in the course of payment) and not only future ones accruing from the validity of said law. vii. On the intangibility of one's own acts and legal certainty. On the subject of legal certainty, the plaintiff states that the reform of the Judicial Branch pension regime flagrantly contravenes the principle of legal certainty, understood as the citizenry's trust in valid and current legal systems, such that no breaches to this system can occur that dilute their rights. They argue that this parameter of constitutionality in pension regimes forms part of our legal system and in this way signifies protection and confidence for those who maintain periods of stay in pension regimes. In the case of the reform of the Judicial Branch pension fund, this variable is aggravated because it is a mandatory fund to which workers in the sector must submit independently of their will. Within this framework of ideas, the variations imposed by the project shatter that trust and security of judicial personnel in attention to the overwhelming difference posed in the reforms, introducing a contribution by way of solidarity for the sustainability of the other pension regimes. They point out that, in the case of retired persons, the situation is extremely burdensome, since they have developed a life project, acquiring long or medium-term economic commitments, and suddenly, counting on that legal certainty, they see their conditions abruptly modified with severe impacts on their patrimonial sphere, which in the case of retired persons is increased by anguish, frustration, and helplessness at being able to do something about it, in the time of their life when they should be calm and secure with their retirement, after a lifetime of dedication and work for the institution. Moreover, they consider these reductions to be confiscatory, for, as they explain in the law they challenge, deduction percentages of 35% are set for those retirements exceeding 6 base salaries of the lowest-paid position in the Judicial Branch, approximately the base is 2,530,000 colones and on the excess a 35% is charged, a 45% on the excess of 3,200,000 colones and a 55% on that of 4,200,000 colones (approximate data), percentages set without any technical study, therefore being arbitrary and confiscatory, appropriating money that belongs to retired persons through acquired rights. Finally, the plaintiff alleges that through Law 9796, the legal certainty granted by international treaties, the Constitution, the laws of the Republic, and the Rulings of the Constitutional Chamber is ignored. Which is not true, since the application of the challenged norm reflects respect for the principle of legal certainty by the legislator, by only acting in function of the valid legal provisions for the application of the cap on pensions, redesigning and redistributing the resources of the special solidarity contribution in a more equitable manner. In the same vein, it is convenient to highlight that with the implementation of this Contribution, the safeguarding of a series of principles has been sought, such as the Pro Fundo Principle. The Pro Fundo Principle has been developed by the Second Chamber (Sala Segunda) of the Supreme Court of Justice, in rulings numbers 1995-0390 at sixteen hours on November fifteen, nineteen ninety-five, 2006-0213 at nine hours ten minutes on April seven, two thousand six, and 2010-0075 at fourteen hours on June three, two thousand ten, which indicate that: “According to the jurisprudence that, as doctrine, contributes to interpreting, delimiting, and integrating the scope of legal norms, the solution given to the litis by the ruling under review is also not correct; given that, when pensions and retirements are discussed, the \"protective principle\" in its derivation of the \"indubio pro operario rule\" is not applicable, since when it comes to the matter of social security, any doubt must be resolved in favor of the debtor, for the sustainability and validity of the Pension Fund must prevail in the interest of potential beneficiaries; a criterion that is in tune with precept 17 of the Labor Code, which commands interpreting the legal system, not only in accordance with the worker's interest, but also in harmony with social convenience;(…)” “Regarding the first argument, the appellant is not correct, for the pro fundo principle is not reduced to a doctrinal thesis from many years ago, but is of wide application at the jurisprudential level, in the search to give the different pension funds, whether administered by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) or by some authorized entity, the greatest stability and duration, to achieve the development and execution of the principle of solidarity that also governs in matters of social security. On the application of the pro fundo principle, this Chamber has stated the following: “IV.- Nor has the Court incurred an improper application of the in dubio pro operario, or of the most beneficial condition. Regarding the first, repeatedly, this Chamber has pointed out that in matters of social security, this principle gives way in favor of a pro fundo interpretation, which nourishes the benefits of the universality of current and potential beneficiaries.” Therefore, it must be considered that while it is true that the pension or retirement is a right granted to pensioned or retired persons, it cannot be "considered as" unrestricted or unable to be limited in its enjoyment, especially when speaking of public funds. In this sense, the Constitutional Chamber in its ruling number 20100001625 dated January twenty-seven, two thousand ten, referring to another of its rulings, states the following: “… within the entire universe of limitations, conditions, and restrictions that the fundamental right to retirement may suffer, there will be a group of them that can be predicated as constitutionally valid provided they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the very exercise of the right in accordance with its nature and purpose. (…) what must be kept in mind is that the study and ruling on each particular case must consider that every limitation and restriction must meet the requirements established by this venue, to be reasonable and proportionate to the nature and purpose of the retirement right and also derived from the norms that recognize and guarantee them, as has been explained.” From the foregoing, it is inferred that not every restriction on the fundamental right to a pension is unconstitutional in itself, but only that which is not reasonable and proportionate (…) that cap, so as not to be unreasonable, disproportionate, or arbitrary, must maintain some relationship with the income the active servant received, precisely because it is based on that income that the contribution to the regime is calculated (…) IV. The right to retirement and the Social State of Law. Articles 50, 56, and 74 of the Political Constitution configure “the model of the social and democratic State of Law” (Res. 9255 at 16:03 hrs on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State’s internal policy, because the Social State of Law “entails an orientation of our political regime toward social solidarity, that is, toward equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discrimination” (Res. 13205 at 15:13 hrs on September 27, 2005). Consequently and based on the Social State of Law, “our Political Constitution provides a set of benefit rights relating to the protection of… workers” (ibid), as is the case of the right to retirement. Precisely, as a consequence of the foregoing, that same model fulfills the functions proper to every fundamental principle, by becoming a parameter of normative validity, hermeneutical criterion, and functional integrative instrument: “In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of the Law. Properly in what concerns constitutionality control, the Principle of the Social State of Law proves useful as a parameter of normative validity, hermeneutical criterion, and functional integrative instrument of the legal system” (Res. 13205 at 15:13 hrs on September 27, 2005). V.- On the cap on the retirement amount. The first thing that must be noted is that the existence of a cap on the retirement amount is not in itself unconstitutional, given that in matters of social security, solidarity in sustaining the fund that backs the disbursements for those who benefit from it is vital for all who contribute to the retirement regime to continue benefiting from that right, for resources are not unlimited. In setting the cap, the legislator may choose one or several parameters with different values or weightings, which must pursue the objective for which that limit on the benefit is imposed. Consequently, the parameter used may refer to elements endogenous or exogenous to the regime itself. However, it is indeed essential that the procedure followed for choosing these parameters responds to the constitutional principles of reasonableness and proportionality. (…) This Court has previously indicated that the principle of reasonableness arises from the so-called "substantive due process," that is, that public acts must contain a substratum of intrinsic justice. When it comes to the restriction of certain rights, this rule imposes the duty that said limitation be justified by a reason of sufficient weight to legitimize its contradiction with the general principle of equality. The foregoing, because a limiting act of rights is reasonable when it meets a triple condition: it must be necessary, suitable, and proportionate.

The necessity of a measure directly refers to the existence of a factual basis that makes it essential to protect some good or set of goods of the community—or of a specific group—by adopting a measure of differentiation. That is, if that action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore cannot be constitutionally valid. Suitability, on the other hand, involves a judgment as to whether the type of restriction to be adopted fulfills the purpose of satisfying the identified need. The suitability of the measure indicates to us that other mechanisms may exist that better solve the existing need, some of which could fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, such that the limitation is not markedly greater in magnitude than the benefit intended to be obtained for the benefit of the community. Of the latter two elements, it could be said that the first is based on a qualitative judgment, while the second is based on a quantitative comparison of the two objects analyzed. In the present case, the legislator chose to establish a ceiling as a social security measure, which may be considered valid and necessary, as already stated, to guarantee the funds of the pension system underpinned by the principle of social solidarity…”. Following this line of reasoning, the right to a pension or retirement, while it is true that it safeguards a constitutional nature, it is also true that it cannot be unrestricted, as has been repeatedly pointed out, since at a certain point in time, it may vary in light of different circumstances that arise in society; indeed, we find doctrine in comparative law that is in agreement with this legal position, and therefore we consider it important to cite the ruling of the Spanish Constitutional Court, which in its judgment number 134/1987 stated the following: “…the Court declares the non-existence of a subjective right to a pension of a determined amount arising from having made a specific contribution, denies that imposing maximum ceilings affects the concept of sufficiency. It defines the concept of an adequate pension taking into account the system as a whole, without forgetting that it is a matter of administering limited economic resources, and understands that the non-acceptance of maximum ceilings implies the negation of the principle of solidarity. Furthermore, it implicitly considers that non-regressiveness must be predicated of the system as a whole (a general reduction in the level of protection) and not partially. It also adopts a broad conception of budget laws as a ‘vehicle for directing and guiding economic policy, which corresponds to the Government.’” (GARCÍA VALVERDE, María D., Comentario Sistemático a la Legislación Reguladora de las Pensiones, Granada, España, Editorial COMARES, 2004, p. 808). Likewise, this contribution protects, besides the Pro-Fund Principle, other constitutional principles, such as solidarity, social justice, and equity, because the purpose or necessity of applying this legal figure is precisely to protect the pension regimes in light of the existing social and economic reality in the country. This is because, in matters of social security, the fundamental pillar for sustaining the fund that backs the disbursements for those who benefit from the regime is solidarity, to the end that all those who contribute to the regime may benefit from that fundamental right. Thus, it is essential to establish a financial equilibrium that guarantees the soundness of the fund, and for this purpose, a series of limits must be imposed to guarantee its soundness. Also, consider that the State, in fulfilling its obligations, must take into account the needs both of persons already retired and of those who will be so in the future, likewise seeking their protection. Thus, in accordance with the factual and legal grounds presented, it is evidenced that with the provisions established in the cited Law number 9796, this Office, within its competencies, has acted appropriately, since no legal or constitutional norm is being infringed. In light of the foregoing, it is important to mention that numerals 9 and 11 of the Political Constitution establish that the Public Administration must exclusively and preclusively exercise only the competencies granted by law, such that it is impossible for it to carry out any action not covered by law. Added to this, regarding the specific topic of accountability, the cited Article 11 of the Political Constitution states: “The Public Administration, in a broad sense, shall be subject to a procedure for evaluating results and accountability, with the consequent personal responsibility for public servants in the performance of their duties. The law shall indicate the means for this system of results control and accountability to operate as a system that covers all public institutions.” (The underlining is not from the original) viii. Non-confiscatory nature. Finally, the present action claims that Article 3 of the challenged law speaks of creating a contribution, and this contribution, being a tax burden on the retirement amount, has a fiscal nature and by its structure entails a confiscatory nature over the assets of retired judicial servants and those who will retire. This Office wishes to express that the decision of the Executive Branch to establish a lower exempt amount from the payment of the Special Solidarity and Redistributive Contribution for the different pension regimes addressed by Law No. 9697, particularly for the Judicial Branch Pension Regime, is not in fact curtailing the rights of retired persons, nor has their standard of living been infringed or limited; since the formulation and approval of the Law to Redesign and Redistribute the Resources of the Solidarity Contribution responds to the promotion of the common welfare in the Democratic Rule of Law, as part of the constitutional mandate enshrined in Article 50 of the fundamental text, insofar as it seeks to address extreme poverty and contribute to the eradication of inequality in the social benefits of pensions. (See webpage: https://www.elpais.cr/2020/04/30/presidente-alvarado-defiende-fijacion-de-tope-a-pensiones-de-lujo/) Moreover, the implementation of a lower amount exempt from payment of the Special Solidarity and Redistributive Contribution respects the stipulations of Conventions 102 and 128 of the International Labour Organization (ILO), as it protects principles such as social justice and equity; given that the purpose of employing this legal figure is precisely the search for a balance between the income received from contributions and the expenditures involved in paying retirement benefits, as well as the sustainability of the Regime. By virtue of the foregoing, while it is true that the Political Constitution establishes the necessary imposition of an accountability system, this is applicable to the Public Administration in a broad sense, in addition to which said system must be developed by law, while, in a specific sense, public servants shall be subject to responsibility regarding the performance of their duties. Added to the above, it must be considered that the Administration, in strict adherence to the principle of legality, enshrined in Article 11 of both the Political Constitution and the General Law of Public Administration, is obligated to apply the provisions established in Law 9796, and therefore it is not possible to grant merit to the allegations raised by the plaintiff, since the Administration acts in strict adherence to the constitutional and legal norms governing the matter. Petition Pursuant to the legal elements set forth, we respectfully request: a) To dismiss the unconstitutionality action filed by Mr. Johnny Mejías Ávila, in his capacity as Chairman of the Board of Administration, and Mr. Eric Enrique Loría Campos, in his capacity as General Manager with powers of a general attorney-in-fact without limit of sum of Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), against Articles 1, 2, subsection d); 3; 4, subsection b); 5 and 7; all of Law number 9796 dated December 5, 2019, titled “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria,” through which subsection a) of Article 236 bis of the Ley Orgánica del Poder Judicial is reformed. b) To exempt this Office from the payment of any amount for personal and/or procedural costs, as well as damages and losses (…)”.</span><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">15.-</span><span style="font-family:'Times New Roman'"> By a document submitted to the Chamber on June 4, 2020, Linda Casas Zamora, in her capacity as a retiree of the Judicial Branch, requests to be considered an active co-adjuvant in this proceeding.

16.- By a document submitted to the Chamber on June 5, 2020, Laura María León Orozco and Denis Alberto Villalta Canales, in their capacity as retirees of the Judicial Branch, request to be considered active co-adjuvants.

17.- By a document submitted to the Chamber on June 7, 2020, Jorge Luis Morales García, in his capacity as General Secretary of the Sindicato de la Judicatura, requests to be considered an active co-adjuvant in this proceeding.

18.- By documents submitted to the Chamber on June 7 and 8, 2020, José Gustavo Zelaya and Marco Antonio Cordero Costo, in their capacity as retirees of the Judicial Branch, request to be considered active co-adjuvants in this proceeding.

19.- By a document submitted to the Chamber on June 8, 2020, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, requests to be considered an active co-adjuvant in this proceeding.

20.- By a document added to the case record on June 8, 2020, Damaris Molina González, in her capacity as President of the Asociación de Jubilados y Pensionados del Poder Judicial, requests to be considered an active co-adjuvant in this constitutionality proceeding. This document was signed by Lic. Dennis Rubie Castro.

21.- By an order issued at 16:28 hrs. on June 11, 2020, the Presidency of the Chamber ordered the following: “(…) Before ruling on the requests for co-adjuvancy, the acting party MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, is warned that she must provide the current legal status certification of the ASOCIACIÓN COSTARRICENSE DE JUEZAS. Furthermore, the acting party DAMARIS MOLINA GONZÁLEZ, identity card 2-0269-0487, in her capacity as President of the ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, is warned to clarify the following: 1) if the signatory attorney DENNIS RUBIE CASTRO appears in his capacity as authenticator of the co-adjuvancy request or, in turn, as a co-adjuvant in this action; if so, he must indicate his legal standing to appear as a co-adjuvant. 2) if the persons included in the list of Anexo 1 are members of the Asociación de Jubilados y Pensionados del Poder Judicial. The foregoing must be complied with within a period of THREE DAYS, running from the day following notification of this order and under warning that their petitions will be denied processing in case of non-compliance (Articles 80 and 83 of the Ley de la Jurisdicción Constitucional). Notify (…)”.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">22.-</span><span style="font-family:'Times New Roman'"> By a document added to the case record on June 12, 2020, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, provides the certification of the current legal status of her represented entity.

23.- By means of a filing submitted to the Chamber on June 16, 2020, Damaris Molina González, in her capacity as President of the Asociación de Pensionados y Jubilados del Poder Judicial, and Dennis Rubie Castro, in his capacity as authenticator of Molina González and acting party for the co-adjuvancy, respond to the warning issued by the order of 16:28 hrs. on June 11, 2020. Molina González clarifies that Mr. Rubie Castro appears as authenticator regarding her intervention as President of the association. She also states, in relation to the inquiry as to whether the persons listed in Anexo 1 are members of the Asociación de Jubilados y Pensionados del Poder Judicial, that many of them are “(…) but there are other members of the Association who are not on this list, but who enjoy the representation of our association, even without appearing in the co-adjuvancy brief (…)”. For his part, Rubie Castro confirms that his signature on the co-adjuvancy brief is in a dual capacity, that is, as authenticator of Ms. Molina González, President of the Asociación de Pensionados y Jubilados del Poder Judicial, and also in his capacity as the attorney acting for the co-adjuvancy of all and each one of the persons listed in Anexo 1. He maintains that all those persons are retirees of the Judicial Branch and, therefore, have a legitimate interest in the proceeding. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">24.-</span><span style="font-family:'Times New Roman'"> By an order issued at 09:18 hrs. on June 23, 2020, the Presidency of the Chamber ordered the following: “(…) Having reviewed the documents filed in the Secretariat of this Chamber at 14:59 hours on May 15, 2020, by HÉCTOR LUIS RUÍZ SALAS, identity card 0502230397; at 11:20 hours on June 1, 2020, by LUIS ANTONIO CHANG PIZARRO, identity card 0601540414; at 11:23 hours on June 1, 2020, by SILENNE CASTRO VINDAS, identity card 0104770967; at 12:19 hours on June 2, 2020, by MARIA DEL PILAR VARGAS ACOSTA, identity card 0203170792; at 15:43 hours on June 2, 2020, by RODRIGO MONTENEGRO TREJOS, identity card 4- 0075-0723, ANABELLE LEÓN FEOLI, identity card 1-0466-0883, ANA VIRGINIA CALZADA MIRANDA, identity card 1-0434-0791, LUIS FERNANDO SOLANO CARRERA, identity card 1-0455-0325, EVA MARÍA CAMACHO VARGAS, identity card 4-0113-0745, ROLANDO VEGA ROBERT, identity card 1-0503-0990, ADRIÁN VARGAS BENAVIDES, identity card 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, identity card 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, identity card 6-0106-0565, LUPITA CHAVES CERVANTES, identity card 1-0596-0893, MILENA CONEJO AGUILAR, identity card 1-0624-0446, FRANCISCO SEGURA MONTERO, identity card 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, identity card 1-0288-0592, RAFAEL SANABRIA ROJAS, identity card 3-0249-0099 and ALFREDO JONES LEÓN, identity card 1-0467-05; at 17:49 hours on June 7, 2020, by JORGE LUIS MORALES GARCÍA, identity card 2-399-222, in his capacity as General Secretary of the SINDICATO DE LA JUDICATURA, legal status 3-011-729381; at 15:26 hours on June 8, 2020, by MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, in her capacity as president of the ASOCIACIÓN COSTARRICENSE DE JUEZAS; at 11:50 hours on June 4, 2020, by LINDA MARIA CASAS ZAMORA, identity card 0900640769; at 11:37 hours on June 5, 2020, by LAURA MARÍA LEÓN OROZCO, identity card 106100476, and DENIS ALBERTO VILLALTA CANALES, identity card 601000361; at 09:49 hours on June 7, 2020, by JOSÉ GUSTAVO ZELAYA MUÑOZ, identity card 0203140196; and at 09:36 hours on June 8, 2020, by MARCO ANTONIO CORDERO COTO, identity card 0302250494. Before ruling on the requests for co-adjuvancy made in this action, the aforementioned acting persons are warned that they must pay and attach the Colegio de Abogados stamp for the sum of two hundred seventy-five colones—for each of the signatories—corresponding to the authentication of the filing of the co-adjuvancy brief. In the case of signatories who are not attorneys and whose brief lacks authentication, they must also provide the corresponding authentication. The foregoing, within a THIRD DAY running from the day following notification of this order and under warning that the action will be denied processing in case of non-compliance, in accordance with Article 4 of Law No. 3245 of December 3, 1963 and Article 80 of the Ley de la Jurisdicción Constitucional. Notify (…)”. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">25.-</span><span style="font-family:'Times New Roman'"> By an order issued at 09:41 hrs. on June 23, 2020, the President of the Chamber ordered the following: “(…) Before ruling on what is appropriate in the UNCONSTITUTIONALITY ACTION being processed under case file number 20- 007715-0007-CO, request the Oficial Mayor Electoral to send this Chamber a death certificate for OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, a document that must be sent to this Chamber within a period of THREE DAYS from the receipt of this order, under warning of incurring liability for disobedience to authority if not done. Issue the corresponding official notice (…)”.</span><span style="font-size:11pt"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">26.-</span><span style="font-family:'Times New Roman'"> By documents submitted to the Chamber on June 23, 2020, Jorge Luis Morales García, in his capacity as General Secretary of the Sindicato de la Judicatura, and Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, state that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica, in accordance with the warning issued by the order of 09:18 hrs. on June 23, 2020.

27.- By documents submitted to the Chamber on June 24, 2020, Luis Antonio Chang Pizarro and Silenne Castro Vindas state that they provided the stamp of the Colegio de Abogadas y Abogados de Costa Rica on June 1 of that same year.

28.- By means of documents submitted to the Chamber on June 24, 2020, Denis Villalta Corrales and María del Pilar Vargas Acosta state that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by the order of 09:18 hrs. on June 23, 2020.

29.- By means of documents submitted to the Chamber on June 25, 2020, Linda Casas Zamora, José Gustavo Zelaya Muñoz, and Marco Antonio Cordero Coto state that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by the order of 09:18 hrs. on June 23, 2020.

30.- On June 25, 2020, the death certificate of Mr. Oscar Luis Fonseca Montoya is added to the case record.

31.- By a document submitted to the Chamber on June 26, 2020, Milena Conejo Aguilar (in her dual capacity as co-adjuvant and authenticator of the signatures of the other co-adjuvants presented on June 2, 2020, namely: Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas, and Alfredo Jones León—the latter a non-attorney—), states that she ratifies that the annotation “are authentic” and her signature corresponds to the authentication of the co-adjuvants’ signatures. She clarifies that on folio 23 of the filed document, the payment of the assessment corresponding to the Colegio de Abogados de Costa Rica stamp for the authentication of the co-adjuvants’ signatures appears. She mentions that she provides a new payment of the assessment for each one of the sixteen co-adjuvants.

32.- By means of documents submitted to the Chamber on June 29, 2020, Laura María León Orozco and Dennis Villalta Canales state that they are providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by the order of 09:18 hrs. on June 23, 2020.

33.- On June 29, 2020, Magistrate Garro Vargas files a recusal request to hear this constitutionality proceeding. This is by virtue of the fact that her maternal aunt is a pensioner of the Judicial Branch retirement regime and is affected by the normative framework under analysis.

34.- By means of a document submitted to the Chamber on June 30, 2020, Héctor Luis Ruiz Salas states that he is providing the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by the order of 09:18 hrs. on June 23, 2020.

35.- By means of an order issued at 14:08 hrs. on June 30, 2020, the Presidency of the Chamber ordered the following: “(…) Having reviewed the documents filed in the Secretariat of this Chamber at 14:59 hours on May 15, 2020, by HÉCTOR LUIS RUÍZ SALAS, identity card 0502230397; at 13:30 hours on May 18, 2020, by JOSÉ MARCELINO SILVA SILVA, identity card 0502160858; at 12:07 hours on May 25, 2020, by GUSTAVO ADOLFO DE LA TRINIDAD RAMÍREZ REDONDO, identity card 0106700103; at 11:20 hours on June 1, 2020, by LUIS ANTONIO CHANG PIZARRO, identity card 0601540414; at 11:23 hours on June 1, 2020, by SILENNE CASTRO VINDAS, identity card 0104770967; at 12:19 hours on June 2, 2020, by MARIA DEL PILAR VARGAS ACOSTA, identity card 0203170792; at 15:43 hours on June 2, 2020, by RODRIGO MONTENEGRO TREJOS, identity card 4-0075-0723, ANABELLE LEÓN FEOLI, identity card 1-0466- 0883, ANA VIRGINIA CALZADA MIRANDA, identity card 1-0434- 0791, LUIS FERNANDO SOLANO CARRERA, identity card 1-0455- 0325, EVA MARÍA CAMACHO VARGAS, identity card 4-0113-0745, ROLANDO VEGA ROBERT, identity card 1-0503-0990, ADRIÁN VARGAS BENAVIDES, identity card 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, identity card 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, identity card 6-0106-0565, LUPITA CHAVES CERVANTES, identity card 1-0596-0893, MILENA CONEJO AGUILAR identity card 1-0624-0446, FRANCISCO SEGURA MONTERO, identity card 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, identity card 1- 0288-0592, OSCAR LUIS FONSECA MONTOYA, identity card 4-0080- 0442, RAFAEL SANABRIA ROJAS, identity card 3-0249-0099 and ALFREDO JONES LEÓN, identity card 1-0467-055; at 17:49 hours on June 7, 2020, by JORGE LUIS MORALES GARCÍA, identity card 2-399-222, in his capacity as General Secretary of the SINDICATO DE LA JUDICATURA, legal status 3-011-729381; at 15:26 hours on June 8, 2020, by MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, in her capacity as president of the ASOCIACIÓN COSTARRICENSE DE JUEZAS, legal status no. 3-002-130811; at 11:50 hours on June 4, 2020, by LINDA MARIA CASAS ZAMORA, identity card 0900640769; at 12:10 hours on June 4, 2020, by DAMARIS MOLINA GONZÁLEZ, identity card 2-0269-0487, in her capacity as President of the ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, legal status 3- 002-071245; at 11:37 hours on June 5, 2020, by LAURA MARÍA LEÓN OROZCO, identity card 106100476, and DENIS ALBERTO VILLALTA CANALES, identity card 601000361; at 09:49 hours on June 7, 2020, by JOSÉ GUSTAVO ZELAYA MUÑOZ, identity card 0203140196; and at 09:36 hours on June 8, 2020, by MARCO ANTONIO CORDERO COTO, identity card 0302250494; who request to be considered active co-adjuvants in this action.

It is resolved: Article 83 of the Constitutional Jurisdiction Law states that within fifteen days following the first publication of the notice referred to in the second paragraph of Article 81, the parties appearing in matters pending as of the date the action was filed, or those with a legitimate interest, may appear in this action to assist in the arguments that may justify its admissibility or inadmissibility, or to expand, as the case may be, the grounds of unconstitutionality regarding the matter of their interest. In the specific case, all the managing individuals mentioned previously appeared between May 15 and June 8, 2020, and requested to be considered active coadjuvants (coadyuvantes activos) on the grounds that they hold a legitimate interest in this matter. Consequently, and given that the first publication of the notice in the Judicial Bulletin (Boletín Judicial) took place on May 18, 2020, what is appropriate is to include them as active coadjuvants (coadyuvantes activos) in this matter. This is with the exception of OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, given that, according to a certification from the Civil Registry (Registro Civil) provided to the case file, he passed away on June 12, 2020, so in his case, the procedural action is deemed concluded. It must be clarified that with respect to the coadjuvancy (coadyuvancia) petition of Damaris Molina González, it is admitted in her capacity as president and legal representative of the Association of Pensioners and Retirees of the Judicial Branch (Asociación de Pensionados y Jubilados del Poder Judicial) and, therefore, on behalf of the members of said association, but not the coadjuvancy (coadyuvancia) of Dennis Rubie Castro, authenticating attorney who stated that he appeared before this Chamber in the capacity of “managing attorney for the coadjuvancy (coadyuvancia) of each and every one of the persons indicated with their respective names and identities in the list of Annex I (Anexo I)” (brief received at 2:09 p.m. on June 16, 2020), since he did not provide a judicial power of attorney (poder judicial) that legitimizes him to act as a coadjuvant on behalf of the listed persons. Interested parties are warned that—regarding the effects of the coadjuvancy (coadyuvancia)—since the coadjuvant (coadyuvante) is not a principal party to the proceeding, they will not be directly harmed or benefited by the judgment, meaning the effectiveness of the judgment does not reach the coadjuvant directly and immediately, nor does it affect them as res judicata (cosa juzgada), nor are they reached by the immediate effects of the execution of the judgment, because through coadjuvancy (coadyuvancia), the jurisdictional authority cannot be compelled to issue a ruling in their favor, since they were not a principal party in the proceeding. What can affect them, but not in their condition as coadjuvant, but rather like anyone else, is the erga omnes effect of the ruling. A judgment in constitutional matters does not particularly benefit anyone, not even the plaintiff; it is in the prior trial where this can be recognized. The hearings granted to the Attorney General of the Republic (Procurador General de la República), the Minister of Finance (Ministro de Hacienda), the Minister of Planning and Economic Policy (Ministra de Planificación y Política Económica), and the President of the Supreme Court of Justice (Corte Suprema de Justicia) in the resolution at 11:37 a.m. on May 12, 2020, are deemed answered. Regarding the request for a precautionary measure of suspension: the requesting coadjuvants (coadyuvantes) must abide by what was resolved by this Chamber in the resolution at 11:37 a.m. on May 12, 2020, regarding the effects of this action: “(…) in cases of direct action (as occurs in the present action), the suspensive effect of the filing does not operate (see votes No. 537-91, 2019-11633, as well as resolutions issued in files numbers 2019-11022, 19-006416 and 19-015543 of the Constitutional Court (Tribunal Constitucional)).” The case file being ready, this action of unconstitutionality is assigned to Magistrate Jorge Araya García, who by turns is responsible for the substantive study thereof (...).

**36.-** By resolution at 2:47 p.m. on September 23, 2020, the President of the Chamber ordered the acceptance of the request for recusal (inhibitoria) filed by Magistrate Garro Vargas.

**37.-** On September 25, 2020, Substitute Magistrate Ronald Salazar Murillo filed a request for recusal (inhibitoria) to hear this constitutional proceeding. The foregoing, because he is a retiree of the Judicial Branch (Poder Judicial).

**38.-** By resolution at 8:49 a.m. on September 30, 2020, the President of the Chamber ordered the acceptance of the request for recusal (inhibitoria) filed by Magistrate Salazar Murillo.

**39.-** On October 1, 2020, drawing No. 8371 was held in the Office of the Presidency of the Court and Substitute Magistrate Hubert Fernández Arguello was selected to replace Magistrate Garro Vargas, to hear this matter.

**40.-** In a brief provided to the Chamber on October 18, 2020, José H. González Fernández, retiree of the National Teaching Profession (Magisterio Nacional), requested to be included as an active coadjuvant (coadyuvante activo) in this proceeding. He requested that Articles 70 and 71 of the National Teaching Profession Pensions and Retirements Law (Ley de Pensiones y Jubilaciones del Magisterio Nacional) and Law No. 9796 be declared unconstitutional.

**41.-** On October 20, 2020, Magistrate Fernando Cruz Castro filed a request for recusal (inhibitoria) to hear this constitutional proceeding. The foregoing, for having rendered a report in this matter, in his capacity as President of the Supreme Court of Justice (Corte Suprema de Justicia).

**42.-** By resolution at 12:33 p.m. on October 22, 2020, the President of the Chamber ordered the acceptance of the request for recusal (inhibitoria) filed by Magistrate Cruz Castro and ordered him separated from hearing this matter.

**43.-** In a brief added to the case file on October 26, 2020, drawing No. 8454, held in the Office of the Presidency of the Court, is recorded, by which Substitute Magistrate Marta Esquivel Rodríguez was selected to replace Magistrate Cruz Castro, to hear this matter.

**44.-** In a brief provided to the Chamber on October 30, 2020, Danilo Eduardo Ugalde Vargas, who states he appears in the capacity of special judicial attorney-in-fact (apoderado especial judicial) for Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, and others (who in June 2020 requested to be included as active coadjuvants (coadyuvantes activos) in this proceeding), attached a series of evidentiary items for a better resolution.

**45.-** In a brief added to the case file on February 22, 2021, a copy (unsigned) of the brief filing the action of unconstitutionality presented on February 18 of that same year by Víctor Rodríguez Rescia on behalf of various interested parties and against the provisions of Law No. 9796 and Law No. 9635, is attached, which, in turn, is being processed under file No. 21-003071-000-CO.

**46.-** In a brief provided to the Chamber on June 7, 2021, Jorge Luis Morales García, in his capacity as Secretary General of the Judiciary Union (Sindicato de la Judicatura), requested that the oral appearance (comparecencia oral) be scheduled as soon as possible, in accordance with the provisions of Article 10 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional). He considers that said hearing is mandatory and not optional.

**47.-** In a brief provided to the Chamber on October 1, 2021, Eloy José Araya Paz filed a petition for expeditious processing (pronto despacho).

**48.-** Through a memorial provided to the Chamber on March 7, 2022, Antonio Ortega Vindas (who filed an amparo appeal related to the regulations challenged in this proceeding) filed a petition for expeditious processing (pronto despacho).

**49.-** Through briefs provided to the Chamber on June 17 and 23, 2022, Erick Castro Zamora and Jessica Espinoza Cerdas (who filed amparo appeal No. 20-010662-0007-CO related to the regulations challenged herein) filed a petition for expeditious processing (pronto despacho).

**50.-** Through a memorial provided to the Chamber on November 3, 2022, José H. González Fernández, retiree of the National Teaching Profession (Magisterio Nacional), issued other observations regarding this proceeding.

**51.-** Through a brief dated February 20, 2023 (added to the case file on February 22, 2023), Jorge Steve Rodríguez Fernández, in his capacity as Secretary General of the Judiciary Union (Sindicato de la Judicatura), requested that the oral appearance referred to in section 10 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) be scheduled. He considers that said hearing is mandatory and not optional.

**52.-** In a brief added to the case file on July 12, 2023, drawing No. 11431, held in the Office of the Presidency of the Court, is recorded, by which Substitute Magistrate Ana Cristina Fernández Acuña was selected to replace the previously named Magistrate Esquivel Rodríguez (since the latter, at that time, no longer served as magistrate because her constitutional term had concluded).

**53.-** In a brief added to the case file on July 12, 2023, drawing No. 11436, held in the Office of the Presidency of the Court, is recorded, by which Substitute Magistrate Jorge Isaac Solano Aguilar was selected to replace Magistrate Fernández Acuña (since the latter, at that time, remained appointed to the Chamber). Regarding this appointment, reference should also be made to what is stated in recital (resultando) No. 62 of this judgment.

**54.-** By interlocutory resolution No. 2023-17098 at 1:00 p.m. on July 12, 2023, the Chamber rejected the request filed by the Secretaries General of the Judiciary Union (Sindicato de la Judicatura) on June 7, 2021, and February 20, 2023, for an oral appearance or hearing of conclusions (comparecencia oral o audiencia de conclusiones) to be scheduled regarding what was raised in this action of unconstitutionality. Likewise, it was placed on record that Magistrates Salazar Alvarado, Araya García, Fernández Arguello, and Fernández Acuña are members of COOPEJUDICIAL, and it was clarified that this situation does not in any way affect the hearing of the action.

**55.-** By brief dated August 7, 2023 (added to the case file on August 8, 2023), Jorge Steve Fernández Rodríguez, in his capacity as Secretary General of the Judiciary Union (Sindicato de la Judicatura), argued that they should be considered as plaintiffs (accionantes), requested the Chamber to schedule an oral appearance or hearing of conclusions, and filed a petition for expeditious processing (pronto despacho).

**56.-** By interlocutory resolution No. 2023-23500 at 9:15 a.m. on September 20, 2023, this Court (Tribunal) ruled on the petition of August 7, 2023, filed by Jorge Steve Fernández Rodríguez, in his capacity as Secretary General of the Judiciary Union (Sindicato de la Judicatura), and resolved the following: *“(…) I.- Preliminarily. In recital (considerando) I of resolution No. 2023017098 at 1:00 p.m. on July 12, 2023, Magistrates Salazar Alvarado, Araya García, Fernández Argüello and Garita Navarro, and Magistrate Fernández Acuña, placed on record that they are members of COOPEJUDICIAL-; in this regard, the Chamber records that such condition does not in any way affect the hearing of this action. Related to the foregoing, Magistrate Rueda Leal records that his wife is a member of this cooperative; in this regard, it is likewise considered that such condition does not in any way affect the hearing of this action. II.- Regarding the coadjuvancy (coadyuvancia) petition, the procedural acts, and the petitioner's request to be considered as plaintiff (accionante) (...) Therefore, it is improper to argue that because an “Expansion of Grounds” was raised in the coadjuvancy (coadyuvancia), they must be considered an active party, actor, or plaintiff (accionante), since as was timely resolved, the Union's intervention was as an active coadjuvant (coadyuvante activo) in this action, and, as has been repeatedly stated, such condition of coadjuvant is insufficient for raising other types of petitions, such as, precisely, requesting that the Union be considered a plaintiff (accionante) or active party in this proceeding. III.- Regarding the request to hold a hearing or oral appearance. In determining that, in accordance with the provisions of Article 83 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), the actions that a coadjuvant person (persona coadyuvante) may perform within a proceeding are limited to the presentation of arguments for or against what was raised by the plaintiff (persona accionante)—including expansions of arguments, it is likewise concluded that they also lack the possibility to make a formal or express request for the holding of an oral appearance (comparecencia oral), hearing, or hearing of conclusions. In any case, it must be noted that holding an oral appearance or hearing of conclusions, by its very nature, is a procedural aspect that corresponds to the Full Chamber (Pleno de la Sala) to determine at the procedural moment when it is considered necessary, appropriate, or timely by the Court (Tribunal), in accordance with the processing and discussion of the constitutional question raised, and in accordance with the provisions of Article 9 of the Constitutional Jurisdiction Law and its application in proceedings of this nature—see, among many others, judgments numbers 4528-99 and 2021-11957-. IV.- Regarding the petition for expeditious processing. Finally, concerning the petition for expeditious processing (pronto despacho), it is important to note that the processing provided to this action so far is due to objective reasons, such as the complexity of the proceeding—a characteristic inherent to an action of unconstitutionality—and also given the number of petitions filed, as well as the significance of the Chamber's eventual ruling, which requires a thorough analysis by this jurisdictional body of the elements raised in the case file. To this must be added the fact that the caseload of the constitutional jurisdiction this year already exceeds 21 thousand new files, which suggests that by the end of the year, the highest figure in the Court's history will be reached. This situation generates a greater workload that directly impacts the Chamber's resolution timelines, just as the petitioner considers has occurred in this specific case. V.- In conclusion, in accordance with what is stated in the preceding recitals (considerandos), the appropriate course is to declare that the petitions filed are dismissed. Therefore, The petitions filed are dismissed (…)”.* **57.-** In a brief provided to the Chamber on February 26, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended due to this action of unconstitutionality) filed a petition for expeditious processing (pronto despacho).

**58.-** In a brief provided to the Chamber on April 9, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended due to this action of unconstitutionality) reiterated his petition for expeditious processing (pronto despacho).

**59.-** Through a memorial provided to the Chamber on April 11, 2024, Silvia Elena Arce Meneses, in her capacity as Secretary General of the Judiciary Union (Sindicato de la Judicatura), filed a petition for expeditious processing (pronto despacho).

**60.-** In a brief provided to the Chamber on April 11, 2024, José H. González Fernández, retiree of the National Teaching Profession (Magisterio Nacional), issued other observations regarding this proceeding.

**61.-** In a brief provided to the Chamber on April 23, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended due to this action of unconstitutionality) reiterated his petition for expeditious processing (pronto despacho).

**62.-** Through a resolution of the Presidency of the Chamber, at seven hours fifty minutes on May 7, 2024, it is confirmed that Magistrate Fernández Acuña is the one designated to replace Magistrate Cruz Castro in this action, by virtue of the recusal (inhibitoria) filed by the latter, as indicated in recitals (resultandos) 41, 42, 43, and 52 of this judgment. In this resolution, the following was expressly stated and explained regarding this designation: *“(…) IV.- As stated in the judicial file, Magistrate Fernández Acuña was selected to replace Magistrate Cruz Castro (supra recital 4). The fact that, to resolve an interlocutory issue (supra recital 7), Magistrate Solano Aguilar was designated (supra recital 6) to replace Magistrate Cruz Castro because Magistrate Fernández Acuña was part of the Court—replacing Magistrate Rueda Leal— (supra recital 5), such designation does not have the legal consequence of displacing Magistrate Fernández Acuña, since the designation of Magistrate Solano Aguilar was for an ad-hoc case. Subsequently, and as is legally appropriate, it fell to Magistrate Fernández Acuña to resolve another interlocutory issue in this file (supra recital 8). Ergo, since there is no cause displacing Magistrate Ana Cristina Fernández Acuña, what is appropriate is that she hear and resolve what is legally appropriate in this action (…)”.* **63.-** Through a memorial added to the file on May 20, 2024, Magistrate Hess Herrera filed a formal recusal (inhibitoria) to hear this action.

**64.-** Through a resolution of the Presidency of this Chamber, at ten hours forty-six minutes on May 20, 2024, the recusal (inhibitoria) filed by Magistrate Hess Herrera is accepted.

**65.-** Through a memorial added to the file on May 21, 2024, the drawing held by the Presidency of the Supreme Court of Justice (Corte Suprema de Justicia), number 12342, is accredited, by which Substitute Magistrate Lara Gamboa is appointed to replace Magistrate Hess Herrera.

**66.-** Through briefs added to the file on May 31 and June 10, both in 2024, Mr. Humberto González Fernández requested the resolution of this action.

**67.-** Through a brief added to the file on June 21, 2024, Mr. Humberto González Fernández referred to the content of various aspects related to the hearing of this action.

**68.-** Through briefs provided to the Chamber on August 22, 23, and 30, as well as on September 1, 4, and 9, all in 2024, José Humberto González Fernández issued an additional series of observations related to this proceeding.

**69.-** Through a memorial added to the file on September 10, 2024, Substitute Magistrate Lara Gamboa filed a recusal (inhibitoria) to hear this action.

**70.-** Through a resolution of the Presidency of this Chamber, at seven hours thirty-three minutes on September 11, 2024, the recusal (inhibitoria) filed by Substitute Magistrate Lara Gamboa is accepted.

**71.-** Through a memorial added to the file on September 16, 2024, the drawing held by the Presidency of the Supreme Court of Justice (Corte Suprema de Justicia), number 12,771, is accredited, by which Substitute Magistrate Pacheco Salazar is appointed to replace Substitute Magistrate Lara Gamboa.

**72.-** In the substantiation of the proceeding, the prescriptions of law have been observed.

Drafted by Magistrate **Araya García**; and, **Considering:** **I.- Preliminarily.** Magistrates Rueda Leal, Salazar Alvarado, Araya García, and Fernández Argüello, as well as Magistrate Fernández Acuña, state for the record that they are members of COOPEJUDICIAL R.L. In this regard, the Chamber notes—as indicated in interlocutory resolutions No. 2023-17098, at 13:00 hrs. on July 12, 2023, and No. 2023-23500, at 09:15 hrs. on September 20, 2023—that this condition in no way affects their consideration of this action.

**ii- Regarding the formal admissibility requirements for the acción de inconstitucionalidad (constitutional challenge)**. The acción de inconstitucionalidad is a process with specific technical requirements that must be met so that the Chamber may validly hear the merits of the challenge. Article 75 of the Ley de la Jurisdicción Constitucional stipulates the admissibility requirements for an acción de inconstitucionalidad; among these, the existence of a pending base or prior matter (asunto base o previo) to be resolved, whether in judicial proceedings or in the procedure to exhaust administrative channels, in which the unconstitutionality has been invoked as a reasonable means to protect the allegedly infringed right or interest, is required. Meanwhile, the second and third paragraphs of the same rule exceptionally regulate the circumstances in which the prior matter is not required, that is, when, due to the nature of the matter, there is no individual and direct harm, or it involves the protection of diffuse or collective interests, or when it is brought directly by the Contralor General de la República, the Procurador General de la República, the Fiscal General de la República, and the Defensor de los Habitantes. Regarding the requirement of a pending matter to be resolved, the Chamber, through judgment number 1995-4190, indicated that the acción is “a process of an incidental nature, and not a direct or popular action, which means that the existence of a pending matter to be resolved—whether before the courts of justice or in the procedure to exhaust administrative channels—is required to access the constitutional jurisdiction, but in such a way that the acción constitutes a reasonable means to protect the right considered harmed in the main matter, so that what is resolved by the Constitutional Court has a positive or negative repercussion on said pending process, as it rules on the constitutionality of the rules that must be applied in that matter; and it is only by exception that the legislation allows direct access to this jurisdiction—requirements of the second and third paragraphs of Article 75 of the Ley de la Jurisdicción Constitucional”. For that reason, the requirement of a pending prior matter does not constitute a mere procedural formality, as neither the existence of a base matter nor the invocation of unconstitutionality is sufficient, since it is essential that the acción constitutes a reasonable means to protect the right or interest considered violated, which means the challenged rules must be applicable in the base matter—see, in a similar sense, Judgments Nos. 1990-1668, 1993-408, 1994-798, 1994-3615, 1995-409, 1995-851, 1995-4190, and 1996-791. Furthermore, it is appropriate to note that other technical requirements must also be met, such as, for example, the explicit determination of the challenged rules, duly reasoned, with specific reference to the constitutional mandates and principles considered infringed; the authentication of the brief filing the acción through legal counsel; the accreditation of standing conditions—powers of attorney and certifications—as well as the literal certification of the challenging brief, which, if not provided by the plaintiffs, may be required by the Presidency of the Chamber for compliance.

**III.- STANDING AND PROPRIETY OF THIS ACCIÓN DE INCONSTITUCIONALIDAD.** In accordance with what was stated in the preceding considerando (whereas clause), one of the exceptions for bringing an acción de inconstitucionalidad without the existence of a prior matter where the alleged unconstitutionality has been asserted and which serves as a basis for filing the acción, is precisely the defense of collective interests, understood as those concerning a specific collectivity, and, therefore, also identified as corporate or group interests.

Regarding the collective interests whose defense provides standing for bringing an acción de inconstitucionalidad, in Judgment No. 2006-13323, at 17:26 hrs. on September 6, 2006, this Court stated:

“This Court considers that the acción is admissible under the terms provided in the first paragraph (sic) of Article 75 of the Ley de la Jurisdicción Constitucional, as the plaintiffs allege the defense of corporate interests, relating to the interests of the members of the associations they represent, these being the Asociación Cámara Nacional de Transportes, the Asociación Cámara Nacional de Transportistas de Servicios Especiales, and the Asociación Nacional de Transportistas de Turismo. Indeed, as this Court has previously recognized (in judgments number 6433-98, 7615-98, 0467-99, 1313-99, 1830-99, 2289-99, 2745-99, 6644-99, 7975-99, 0877-2000, 2856-2000, 5565-2000, 6973-2000, 7160-2000, and 2001-9677), corporate interests are those characterized ‘[...] by the representation and defense of a core of interests belonging to the members of the specific collectivity or common activity, and, insofar as it represents and defends them, the Chamber acts on behalf of its associates, the collectivity of merchants. Therefore, we are facing an interest of that Chamber and, at the same time, of each one of its members, in a non-individualized but individualizable manner, which constitutes a corporate interest or one concerning that legally organized collectivity, which is why this acción is admissible under the terms of the second paragraph of Article 75 of the Ley de la Jurisdicción Constitucional.’” (Judgment number 1631-91, at fifteen hours and fifteen minutes on August twenty-first, nineteen ninety-one).

Thus, in these cases, the existence of a pending matter (in administrative or jurisdictional channels) is not necessary, as required by the first paragraph of the cited Article 75 to prove the plaintiff’s standing, because by the very essence of the matter, it involves the defense of corporate interests. The Chamber considers that it would not be legitimate to disregard this type of interest, as doing so would imply disregarding an important function of corporate entities, which have been created according to the guidelines of the law, and in the case of Chambers, professional associations (colegios profesionales), associations, or unions, it would distort their mediating function regarding the defense of the interests of their members, a function that has been recognized as essential to these entities by this Court’s own jurisprudence (…)”.

For its part, in Judgment No. 2020-20839, at 09:20 hrs. on October 28, 2020, the Chamber stated:

“Regarding collective interests, which are briefly mentioned in the brief, it is appropriate to note that the Chamber has clarified that through the expression ‘interests concerning the collectivity as a whole,’ the legislator intended to refer to the standing held by a corporate entity when it acts through its representatives in defense of the rights and interests of the persons who make up its membership base, and provided that it involves the questioning of rules or provisions that affect that core of rights or interests that constitutes the reason for being and the unifying factor of the group. As of judgment 2006-9170, at sixteen hours and thirty-six minutes on June twenty-eighth, two thousand six, this Court revisited a prior criterion, according to which corporate entities are authorized to directly request the finding of unconstitutionality (declaratoria de inconstitucionalidad) of a rule when it directly affects the sphere of action of the entity and its members, without relevance as to whether the rule is capable of directly affecting the rights of the members (…).” Thus, when alleging the defense of collective interests, it must directly involve situations affecting the sphere of rights of those who make up the grouping, collective, guild, or corporation, precisely because they are integral parts thereof, or the rights that said collective or grouping may hold in its own right as a corporate-based entity. That is, it is not about the possibility of alleging, through this route, the unconstitutionality of any rule or general act, but only those that affect said sphere of rights.

In the case under study, this acción is brought by the President of the Board of Directors and the General Manager, both of the Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), which is a corporate organization, alleging the defense of the rights of the associated persons (active and retired) to that grouping, given that, in their view, the regulations in question (articles 1, 2, subsection d; 3; 4, subsection b; 5, and 7; all of Law No. 9796 of December 5, 2019, called “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria” [Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution], and the provisions of article 236 bis, subsection a, of the Ley Orgánica del Poder Judicial No. 8) concern and directly affect them. In view of the foregoing, this Chamber considers that the plaintiffs have sufficient standing to bring this acción (see the Chamber’s ruling in vote No. 2021-11957, at 17:00 hrs. on May 25, 2021; an occasion on which, upon hearing a similar matter, an acción de inconstitucionalidad also filed by COOPEJUDICIAL R.L. was admitted).

**IV.- Regarding the coadyuvancias (interventions as coadjuvant).** Article 83 of the Ley de la Jurisdicción Constitucional establishes that within fifteen days following the first publication of the notice referred to in the second paragraph of numeral 81, parties with matters pending as of the date of filing the acción, or those with a legitimate interest in the definition of the object in dispute, may appear to coadyuvar (to intervene as coadjuvant) with either of the two positions under discussion; in the case of acciones de inconstitucionalidad, basically the coadjuvant appears to defend the plaintiff’s annulment claim or to support the validity of the challenged act. In this case, through a resolution of the Presidency of this Chamber, issued at 14:08 hrs. on June 30, 2020, the matters concerning the active coadyuvancia applications filed within the period indicated in the cited numeral 83 of the Ley de la Jurisdicción Constitucional were resolved. On that occasion, the following were accepted as active coadjuvants: Héctor Luis Ruiz Salaz, José Marcelino Silva Silva, Gustavo Adolfo de la Trinidad Ramírez Redondo, Luis Antonio Chang Pizarro, Silenne Castro Vindas, María del Pilar Vargas Acosta, Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magda Lorena Pereira Villalobos, Alejandro López Mc Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Álvaro Fernández Silva, Rafael Sanabria Rojas, Alfredo Jones León, Jorge Luis Morales García, in his capacity as Secretario General of the Sindicato de la Judicatura, Magda Díaz Bolaños, in her capacity as Presidenta of the Asociación Costarricense de Juezas, Linda María Casas Zamora, Damaris Molina González, in her capacity as Presidenta of the Asociación de Jubilados y Pensionados del Poder Judicial, Laura María León Orozco, Denis Alberto Villalta Canales, José Gustavo Zelaya Muñoz, and Marco Antonio Cordero Coto, as all demonstrated a legitimate interest and appeared within the corresponding timeframe.

Likewise, this resolution clarified that the coadyuvancia request made by Mr. Oscar Luis Fonseca Montoya was not proper, given that he died on June 12, 2020. Regarding the request made by Damaris Molina González, it was indicated that it was admissible in her capacity as Presidenta and judicial representative of the Asociación de Pensionados y Jubilados del Poder Judicial and, therefore, in representation of the members of said association. Also, said resolution indicated that the request formulated by Dennis Rubie Castro was not proper, “(...) authenticating attorney and who stated he was appearing before this Chamber in the capacity of ‘managing attorney for the coadyuvancia of each and every one of the persons indicated with their respective names and identities in the list of Anexo I’ (brief received at 14:09 hours on June 16, 2020), as he did not provide a judicial power of attorney that authorizes him to act as coadjuvant on behalf of the listed persons (…)”.

It should be noted that, on October 18, 2020, Mr. José H. González Fernández, a pensioner of the Magisterio Nacional, requested to be considered an active coadjuvant in this process. However, as said request was filed untimely, exceeding the period clearly established in ordinal 83 of the Ley de la Jurisdicción Constitucional, it is improper and must be rejected.

**V.- OBJECT OF THE ACCIÓN.** The plaintiffs allege the unconstitutionality of the provisions in articles 1, 2, subsection d); 3; 4, subsection b); 5, and 7; all of Law No. 9796 of December 5, 2019, called “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria” [Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution], and the provisions in article 236 bis, subsection a), of the Ley Orgánica del Poder Judicial. These rules expressly state the following:

From Law No. 9796:

“ARTÍCULO 1 (ARTICLE 1)- Purpose of the law. The purpose of this law is to contribute to the public finances of the country by applying a redesign of the maximum pension ceilings and the pension exempt from the special solidarity contribution (contribución especial solidaria) established on the special pension regimes contained in articles 3 of Law No. 9383, Ley Marco de Contribución Especial de los Regímenes de Pensiones, of July 29, 2016; 236 bis of Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937; and in article 71 of Law No. 2248, Ley de Pensiones y Jubilaciones del Magisterio Nacional, of September 5, 1958, which contemplate the regimes of the Poder Judicial and the Magisterio Nacional, respectively.” “ARTÍCULO 2 (ARTICLE 2)- Scope of application. This law shall apply to the pension regimes established in the following laws: (…) d) Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937. This law shall not be applicable to persons covered by the Invalidez, Vejez y Muerte (Disability, Old Age, and Death) regime administered by the Caja Costarricense de Seguro Social (CCSS).” “ARTÍCULO 3 (ARTICLE 3)- Purposes. This law shall have the following purposes: a) To give continuity and applicability to the solidarity contribution as a contribution to achieve the sustainability of pensions. b) To contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in tax burdens. c) To give sustainability to pension systems through the new contributions.” “ARTÍCULO 4 (ARTICLE 4)- Universal maximum pension exempt from the special solidarity contribution. All those retirements, single pensions, or multiple pensions derived from the contributory and non-contributory regimes included in article 2 of this law, except for supplementary ones regulated in Law No. 7983, Ley de Protección al Trabajador, of February 16, 2000, and any other supplementary one existing in the Public Administration, granted to the same person for different legal causes, which exceed the amounts to be stated below, according to the public salary regime to which they belong, shall be subject to the special solidarity contribution created through the laws indicated in articles 1 and 2 of this law. The amounts exempt from the special solidarity contribution are the following: (…) b) Up to six (6) base salaries of the lowest paid position in the Poder Judicial for the case of pensions and retirements contemplated in Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937.” “ARTÍCULO 5 (ARTICLE 5)- Principle of progressive contribution. The deduction of the mandatory and solidarity contribution shall be applied in compliance with the progressive contribution scale established in each of the laws indicated in article 2 of this law. For the case of deductions that must be applied to multiple pensions, only those paid within the same pension regime may be considered for the purposes of the special solidarity contribution, and the sums of pension amounts among different regimes may not be applied. In no case may the sum of the solidarity contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions that correspond by right to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted such that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” “ARTÍCULO 7 (ARTICLE 7)- Reform of subsection a) of article 236 bis of Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937 Subsection a) of article 236 bis of Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937, is reformed.” Article 236 bis- Special, solidarity-based, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch (Poder Judicial) and up to twenty-five percent (25%) of said ceiling, they shall contribute thirty-five percent (35%) of such excess.” For its part, Article 236 bis, subsection a), of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), states:

“Article 236 bis- Special, solidarity-based, and redistributive contribution of pensioners and retirees.

In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest-paid position paid in the Judicial Branch and up to twenty-five percent (25%) of said ceiling, they shall contribute thirty-five percent (35%) of such excess.” In essence, the claimants estimate that the content of such norms caused the contribution percentages to be increased, such that they are forced to pay up to 55%, thus arbitrarily depriving Judicial Branch retirees of sufficient economic resources to meet their needs, principally by virtue of the elderly status (condición de adultos mayores) that most of them hold.

For the foregoing reasons, they allege that such norms contravene the rights to retirement (jubilación) and social security, the principle of non-confiscation (no confiscatoriedad), the principle of no double taxation (no doble imposición en materia tributaria), the principle of non-retroactivity to detriment (no retroactividad en perjuicio), the principle of legal certainty (seguridad jurídica), the principle of equality (igualdad), the principles of reasonableness (razonabilidad) and proportionality (proporcionalidad), and the principle of solidarity (solidaridad). They also accuse that, for the establishment of the contribution percentages to the regime, no technical studies were available.

VI.- METHODOLOGY FOR ANALYSIS OF THIS UNCONSTITUTIONALITY ACTION (ACCIÓN DE INCONSTITUCIONALIDAD). For the purpose of facilitating the study of this action, we shall first proceed to conduct a general analysis of the reasons that gave rise to Law No. 9796 (Ley No. 9796), as well as of the right to retirement and the figure of the special solidarity contribution, to subsequently focus the study on the contributions of up to 55% that judicial retirees are currently obliged to pay and what this Chamber has stated regarding that maximum ceiling. All this, as a means to then punctually examine the grievances that, on this particular point, the claimants presented.

VII.- ON THE REASONS THAT GAVE RISE TO LAW NO. 9796 AND THE TEXT OF INTEREST FINALLY APPROVED. To begin the study of this constitutionality proceeding, it is appropriate first to understand, in broad terms, the origins or reasons that led to the creation of the law challenged by the claimants.

Thus, it must be noted that on April 24, 2018, Law No. 9544 (Ley No. 9544), called the Reform of the Organic Law of the Judicial Branch (Reforma a la Ley Orgánica del Poder Judicial) was enacted (published in La Gaceta No. 89 of May 22, 2018). Through this latter normative body, the provisions of Title IX of the cited Organic Law of the Judicial Branch were reformed, namely, specifically, what is indicated in articles 224 to 233 (Chapter I referring to benefits), article 234 (Chapter II concerning the transfer of contributions), articles 235 to 238 (Chapter III called The Fund (El Fondo)) and articles 239 to 242 (Chapter IV regarding administration); likewise, several norms were repealed and some transitory provisions were inserted. The antecedents and reasons that gave rise to this particular law were extensively explained by this Constitutional Chamber (Sala Constitucional) in Considerando VII of Judgment No. 2021-11957 of 17:00 hrs. on May 25, 2021, through which, precisely, its constitutionality was analyzed, as will be stated and explained further below.

Now then, of particular interest and, for the purposes of this constitutionality proceeding, it is worth pointing out what was set forth, on that occasion, in articles 236 and 236 bis of the cited Law No. 9544 (corresponding to Chapter III called the fund). The first of these articles provided that the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) would have a series of revenues, namely: 1) A worker contribution of thirteen percent (13%) of the salaries earned by judicial servants, as well as of the retirements and pensions charged to the Fund, a percentage that shall be withheld in the corresponding periodic payment. 2) An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the wages and salaries of its servants. 3) A contribution from the State that shall be a percentage of the wages and salaries equal to that established for the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS) and 4) The returns and other benefits that the Fund produces or may come to generate or obtain. Furthermore, it was clarified that, in no case, could the sum of the mandatory contribution and the special, solidarity-based, and redistributive contribution and, in general, the totality of deductions applied by law to all pensioners and retirees of the Fund, represent more than 55% of the total gross amount of the pension that rightfully corresponds to the beneficiary. It was also said that, for cases in which this sum exceeded that 55% of the total gross amount of the pension, the special contribution would be readjusted in such a way that the sum would equal 55% of the total gross amount of the pension. Finally, in that article it was clarified that the resources obtained from that established mandatory contribution would enter that Judicial Branch Retirement Fund.

For its part, through Article 236 bis, the matter of the special, solidarity-based, and redistributive contribution to which the pensioners of this institution would be obligated was established. It was provided, then, that, in addition to the common contributions established in the previous article, pensioners whose benefits exceed the following amounts must contribute in a special, solidarity-based, and redistributive manner: a) On the excess over the ceiling established in Article 225 (which, in turn, provided that no retirement could be greater than 10 times the base salary of the lowest-paid position nor less than one-third of the base salary of the lowest-paid position paid in the Judicial Branch) and up to 25% of said ceiling, they shall contribute 35% of such excess. b) On the excess over the previous margin and up to an additional 25%, they shall contribute 40% of such excess. c) On the excess over the previous margin and up to an additional 25%, they shall contribute 45% of such excess. d) On the excess over the previous margin and up to an additional 25%, they shall contribute 50% of such excess and e) On the excess over the previous margin, they shall contribute 55%. Similarly, in this article it was clarified that, in no case, could the sum of this special contribution and the totality of the deductions applied by law to all Judicial Branch pensioners represent more than 55% of the total gross amount of the pension. It was also said that, for cases in which that sum exceeded that 55%, relative to the total gross amount of the pension, the special contribution would be readjusted in such a way that the sum would equal 55% of the total gross amount of the pension. It was added that the resources obtained from the special contribution would enter the Judicial Branch Retirement and Pension Fund.

Shortly thereafter, in October of that same year 2018, eleven Deputies of the Legislative Assembly (Asamblea Legislativa) introduced a new bill intrinsically related to the previous law, then called “Law to fix equitable ceilings on luxury pensions, redesign and redistribute the resources of the special solidarity contribution, and create the figure of exceptional mandatory retirement (Ley para fijar topes equitativos a las pensiones de lujo, rediseñar y redistribuir los recursos de la contribución especial solidaria y crear la figura de la jubilación obligatoria excepcional)”, which, in turn, was processed under legislative file No. 21.035.

A reading of the statement of motives of said bill allows one to glimpse that its main objective (at least with respect to what interests us for the study of this proceeding), was to make a new “cut” to the pensions received by retirees from different regimes, including that of the Judicial Branch, through a redesign specifically regarding the issue of the special solidarity contribution. The foregoing, with the aim, in turn, of “giving a bit more uniformity” to the regimes, regarding benefits and burdens, reducing the exempt bases of pension amounts “so that the progressive tables of the solidarity contribution can be applied to them” and thereby avoid what was considered “enormous inequality in the benefits of a pension or retirement.” In its original version, the bill sought that, above the 8 lowest salaries (outside the Judicial Branch, the Executive Branch, the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), etc.), those deduction percentages for the solidarity contribution concept would be applied.

According to said statement of legislative intent, with the legislation then in force, this was the panorama regarding the bases exempt from payment of the mandatory solidarity contribution:

And, with the bill, the intent was to try to standardize the situation of the various regimes, in the following manner:

Likewise, the bill maintained that the foregoing measures sought to provide the Executive Branch with "new and constant" resources, broadening the taxpayer base by lowering the exempt cap on pensions and collecting income over a 10-year period to advance the payment of internal and external debt and thereby overcome the fiscal and unemployment crisis which, it was stated, threatened the country's economic stability and development. In conjunction with the foregoing, it was clarified that these measures were originally temporary in nature regarding the treatment of the resources' destinations, "so that at the end of the term established in this legislative initiative, they would be returning to the purpose established in the affected norms, that is, for the support of the pension funds and single fund, as applicable." The aforementioned bill was published in Supplement No. 14 to La Gaceta No. 214 of December 18, 2018, and subsequently continued with the corresponding legislative procedure. Finally, on December 5, 2019, the currently challenged Law No. 9796 was enacted, under the name of "Law to redesign and redistribute the resources of the special solidarity contribution," which, in turn, was published in Supplement No. 286 to La Gaceta No. 243 of December 20, 2019, with the express indication that it would enter into force as of June 21, 2020.

It should be noted that, regarding the Judicial Branch pension regime and insofar as it is relevant for the purpose of resolving this matter, the pertinent regulation ultimately stipulated that the amount exempt from the special solidarity contribution would be up to 6 base salaries of the lowest position in the Judicial Branch (Article 4, subsection b). Furthermore, Article 5 indicated that the deduction of the solidarity contribution would be applied according to the progressive contribution scale, and it was again clarified that, in no case, could the sum of the solidarity contribution and all deductions applied to all pensioners and retirees covered by the law represent more than 55% of the total gross amount of the pension, so that, otherwise, the respective adjustment would be made so that the sum would equal that 55%. In accordance with the foregoing, through provision 7 of the law under study, it was also ordered to reform the aforementioned Article 236 bis of the Organic Law of the Judicial Branch, specifically, its subsection a), such that this precise number established the following:

"In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidary, and redistributive manner, in accordance with the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest position paid in the Judicial Branch and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess." In this way, at that time and before the issuance of Judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021—which, as stated, ruled on the constitutionality of Law No. 9544—provision 236 bis of the Organic Law of the Judicial Branch read as follows; that is, without any interpretation having been issued regarding its content:

"Article 236 bis- Special, solidary, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidary, and redistributive manner, in accordance with the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest position paid in the Judicial Branch and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess over the previous margin, they shall contribute fifty-five percent (55%).

In no case may the sum of the special, solidary, and redistributive contribution and all deductions applied by law to all pensioners and retirees of the Judicial Branch Pension and Retirement Fund represent more than fifty-five percent (55%)(*) of the total gross amount of the pension to which the beneficiary is entitled by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the special, solidary, and redistributive contribution established in this law shall be deposited into the Judicial Branch Pension and Retirement Fund." In addition to the foregoing, it is worth highlighting that the approved Law No. 9796 discarded the provision that originally contemplated transferring the obtained resources to the payment of the State's debt. This previous situation can be accredited by a reading of the final part of the provisions in the supra-cited provision 236 bis of the Organic Law of the Judicial Branch.

Thus, as can be seen with crystal clarity, the substantial or most important change made by Law No. 9796, with respect to the previous Law No. 9544, lies fundamentally in the shortening of the exemption range for the solidarity contribution, given that it changed from obligating payment of the solidarity contribution for those exceeding the amount of ten base salaries of the lowest position paid in the Judicial Branch to obligating those exceeding the amount of six of these salaries. This last aspect, it is worth highlighting and noting from the outset, is of great importance for the purposes of resolving this constitutional proceeding, above all, based on the precedents that this Constitutional Chamber has already issued on this same subject.

Likewise, it bears reiterating and making clear that Law No. 9796 not only made a modification to the Judicial Branch pension regime, but also to other regimes, including, for example, that of the National Teachers, a situation regarding which this Chamber has also already issued a pronouncement, as will be indicated in the upcoming recitals.

VIII.- ON THE RIGHT TO RETIREMENT AND THE CONSTITUTIONALITY OF SOLIDARITY CONTRIBUTIONS, ESPECIALLY REGARDING THE JUDICIAL BRANCH RETIREMENT REGIME. On several occasions, this constitutional body has referred to the so-called solidarity contributions imposed on pensioners. Of special interest, for purposes of resolving this unconstitutionality action, mention must be made of Judgment No. 2020-19274, of 4:30 p.m. on October 7, 2020, through which this jurisdiction ruled on the fundamental right to retirement, the limitations that may be applied to it, and, in particular, regarding this type of special contribution imposed, in that specific case, on pensioners of other regimes (different from the Judicial Branch regime) through Laws Nos.

9380 and 9383. On that occasion, it was expressly stated as follows:

"**VI.- On the right to social security and the right to retirement (jubilación)**. This Chamber, on no few occasions, has established in its jurisprudence the importance of social security, a right that in turn encompasses several rights; and, among them, the right to a pension or retirement (jubilación). The right to social security is one of many other Economic, Social and Cultural Rights, which encompasses other fundamental rights established in a series of norms contained in human rights instruments and treaties. In this sense, they are part of Constitutional Law (values, principles, and rights), which allow it to be given specific content, as well as to support state actions that seek to materialize the political goals and state conduct inherent to them, with the objective of materializing those fundamental rights. In Costa Rica, these are rights that appear not only in the Political Constitution (as the great national social pact), but are also accepted as legal duties through the international obligations that the State freely and voluntarily acquires before the international community.

Thus, the right to social security, in the Political Constitution, finds its basis in Articles 50, 73, and 74, as well as the integration pursuant to Constitutional Articles 7 and 48, with Articles 11 and 16 of the Declaration of the Rights and Duties of Man; 22 and 25 of the Universal Declaration of Human Rights; 31 of the International American Charter of Social Guarantees; 25, 28, 29, and 30 of Convention No. 102 of the International Labour Organization, as well as Article 9 of the International Covenant on Economic, Social and Cultural Rights. In one of the most emblematic rulings of a young Constitutional Chamber, it was established, with complete clarity, the interrelation of these norms to establish the fundamental right to retirement (jubilación). Thus, in Decision No. 1990-1147 issued at 16:00 hours on September 21, 1990, it was established that:

"III.- In the first place, the Chamber declares that there does exist a constitutional and fundamental right to retirement (jubilación), in favor of every worker, in general; a right which, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination whatsoever, in accordance with Articles 33 and 73 of the Constitution, according to which: "Article 33. Every man is equal before the law and no discrimination contrary to human dignity may be made" "Article 73. Social insurance (seguros sociales) are established for the benefit of manual and intellectual workers, regulated by a system of compulsory contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law...".

This conclusion is confirmed in a series of international human rights principles and norms, which have not only the rank superior to ordinary law conferred upon them by Article 7 of the Constitution, but also a direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself, pursuant to Article 48 thereof, (reformed by Law No. 7128 of August 18, 1989); among those rights, specifically, those recognized in Articles 25, 28, 29, and 30—thus corrected from those invoked in the action—of the Social Security Convention, No. 102 of the ILO, in which it is established: "Article 25. Each Member for which this part of the Convention is in force shall guarantee to the persons protected the provision of old-age benefits, in accordance with the following articles of this part" "Article 28. The benefit shall consist of a periodical payment, calculated as follows... " "Article 29. 1. The benefit mentioned in Article 28 shall be guaranteed, in the contingency covered, at least: a) to the persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence... "2. When the granting of the benefit mentioned in paragraph 1 is conditional upon the completion of a minimum period of contribution or employment, a reduced benefit shall be guaranteed at least: "a) To the persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment... " "Article 30. "The benefits mentioned in Articles 28 and 29 shall be granted throughout the entire duration of the contingency".

Other international texts also recognize, either specifically the right to retirement (jubilación)—due to age or old age—(e.g., Art. 16 American Declaration of the Rights and Duties of Man; 22 and 25 Universal Declaration of Human Rights; 31 International American Charter of Social Guarantees; 5th Convention concerning Equality of Treatment in Matters of Social Security, No. 118 ILO), or, in general, the Right to Social Security, within which retirement (jubilación) is universally understood to be included (e.g., Art. 11 American Declaration of the Rights and Duties of Man; and Art. 9 International Covenant on Economic, Social and Cultural Rights).

IV.- As can be seen, in both classes of the aforementioned norms, the fundamental right of every worker to their retirement (jubilación) is recognized, and clear reference is made to old age, as the "contingency" determining the right to the benefit—retirement (jubilación)—in what concerns us here. […] VII.- In any case, the Chamber considers that the right to retirement (jubilación), in general or in the special regimes alluded to, cannot normally be conditioned upon the conduct of its holder, whether this occurs before or after its consolidation as an acquired right. In reality, it is not ignored that the right to retirement (jubilación), like any other right, is subject to conditions and limitations, but these only insofar as they are provided for by the norms that recognize and guarantee them and are, furthermore, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than an expression of a well-known principle of Human Rights Law, which may be called proportionality, and which is taken up, in general, as a *sine qua non* condition of the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them; a principle that is listed, for example, in Articles 29.2 and 30 of the Universal Declaration of Human Rights, 29 and 30 of the American Convention on Human Rights, 5 of the International Covenant on Civil and Political Rights, and 4 and 5 of the International Covenant on Economic, Social and Cultural Rights"(…) .” The precedent cited shows that, **from very early on in the jurisprudence of this Constitutional Chamber, the right to retirement (jubilación) was recognized as a constitutional right in favor of every working person, under conditions of equality and without any discrimination, and is part of a general right to social security, as explained above**.

In line with the discussion of the right to social security, as an Economic, Social, and Cultural Right, the Inter-American Court of Human Rights has also contributed to its protection by establishing the justiciability of such rights in the inter-American system, in light of Article 26 of the American Convention on Human Rights, by recognizing it "autonomously, as an integral part of economic, social, cultural, and environmental rights," and within the international and national *corpus juris* as the norms of the Charter of the Organization of American States (OAS), as well as norms of interpretation of the American Convention in Article 29. In this sense, as should rightly be recognized, both the Inter-American Court and the Constitutional Chamber use protective criteria of interpretation, especially when national norms grant greater rights than international norms, and vice versa, as this Chamber has done in enunciating Constitutional Law (principles, values, and rights), granting primacy to the constitutional norm over the rights contained in the international *corpus juris*, especially when they guarantee more rights than the Political Constitution. Similarly, it is important to mention that the American Convention enunciates the principles of minimum guarantee and the protective pro-person principle. The first is the recognition that every international treaty constitutes a floor or base that prevents the State itself from failing to recognize the rights it committed to at the international level, in favor of the human person. Thus, it must always respect the minimum set in a specific treaty or other international agreement that exceeds it, but above all, without prejudice to improving those conditions through national legislation. As for the pro-person principle, it must be noted that it privileges, prefers, and favors the application of norms that offer greater protection to the rights of the human person, whether in a national norm or in international law.

More specifically, the right to social security at the international level must be characterized by being composed of a minimum level of benefits that comprise at least basic health care, sickness cash benefits, unemployment benefits, old-age benefits, in case of employment injury and occupational diseases, family benefits, maternity benefits, invalidity benefits, and survivors' benefits, all in accordance with Convention No. 102 of the International Labour Organization. The right to social security and social protection refers to the right that social security coverage cannot be denied arbitrarily or unreasonably, and the right to equality in the enjoyment of adequate protection in case of unemployment, sickness, old age, or lack of means of subsistence, in circumstances beyond the person's control. In Decision No. 2012-16628 issued at 16:30 hours on November 28, 2012, this Chamber established, in relation to Convention No. 102, previously mentioned, the following:

"What is certain is that international norms establish what social security jargon in some ILO documents calls the social floor or social protection floor as a minimum of fundamental obligations that could indeed be justiciable; there exist unfulfilled legal obligations that are demandable domestically, or once this is exhausted, at the international level. […] What is important is that ILO Convention 102 contains nine branches of social security, where it establishes minimum standards for each of them, and enunciates principles for the sustainability and good governance of said systems. This convention includes a flexibility clause so that upon ratifying the Treaty, the State may choose at least three areas of protection." In this sense, it is clear that there exists an obligation to recognize the floor or normative base contained in international instruments, so that when the State interferes with these minimums, these constitute a true limit; they become a nucleus of resistance that allows repelling unjustified transgressions or interferences by the State. Likewise, they must be protected from infringements by omission when these rights are disregarded. In this regard, such violations can be judicially claimed when fundamental rights are deemed injured. The foregoing allows us to understand that there is a true hard core of the right to a pension (pensión). This must be comprised, first, of the right to the minimum benefits defined by social security as a constitutional right and specified by international norms. **In this way, the base of the hard core of the right to a pension (pensión) includes the enjoyment of a series of national and international regulations that allow the insured person to have a dignified and adequate standard of living, without prejudice to affirming that there must be a reasonable and proportional relationship to the contribution made toward such right, as this is a composite right, resulting from a social and economic effort by the different factors of production: State, Employer, and Workers.** It must also include other international parameters freely accepted by the country, as international norms that collect the concerns of the international community. As an economic, social, and cultural right, some of its characteristics must be taken into account that could nourish the right to social security, as indeed specific international treaties on the matter of older adults do. Others, for example, derive from the protection of the marital bond or de facto unions due to widowhood, such as a right to receive survivors' benefits and those for other beneficiaries.

Secondly, through the improvement in the benefits scheme of the rights achieved by society at a certain historical moment prior, which should only be diminished with justification (actuarial, national, and international economic studies), such that there is a right to the maintenance of the protection that the insured person receives pursuant to national legislation, upon belonging to a regime and specifically declared when fulfilling the necessary conditions and requirements, for the enjoyment of a right to peaceful enjoyment. As a result, a very important obligation arises, that is, that there must be a very precise definition of the reasons that compel the State to reduce conditions previously established through benefit policies, such that it must face stricter criteria according to its level of impact on the population (varying according to temporality and permanence). These policies, of course, must be specified in legislation and secondary regulation approved under the respective legal framework (pursuant to regulatory power), but without being as general as an economic or fiscal crisis, since evidently, State resources will always be scarce and limited, and whose function of distributing wealth will always lead it to ponder where to place more resources in certain economic and social benefits, based on the need to achieve political, economic, or social objectives (in a positive and programmatic sense), which can cause "urgencies" in other areas that push for more state resources. In other words, the financial crisis is neither in itself nor can it be a justification for regressive decision-making, but rather a trigger that must materialize in the public interest of the State to bring forward concrete actions in its legislation. This, without forgetting that the Committee on Economic, Social and Cultural Rights itself establishes a primacy of law and policy of these rights, where the lack of resources cannot serve as a pretext for non-compliance with them.

Convention No. 102 of the International Labour Organization is not a rigid instrument, as it offers a framework that allows States to adapt their national realities to the protected schemes, but there exist certain rules that must accompany national efforts to achieve the universalization of insurance, with coverage that is reasonable and balanced for the sectors involved. It should be noted, again, that when referring to the hard core of a right, reference is made to that part of fundamental rights in which the State would not be legitimized to interfere or transgress, because, in that case, it would be infringing the fundamental rights and freedoms contained in the Political Constitution as well as in international obligations acquired in international instruments on Economic and Social Rights. (…) **the question of whether it is possible to establish taxes on the benefits received, derived from the right to a pension (pensión), is of importance**. From the viewpoint of Constitutional Law, insofar as it integrates the principles, values, and rights contained in the Political Constitution, the close link with human rights in force in the Republic, the application of the contested measures are the product of a democratic process, based on the public interest to contain and control public spending that has come to decimate the country's economic position and reaction capacity. In this sense, this Chamber brings up Article 5 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, known as the Protocol of San Salvador, which states: "The States Parties may establish restrictions and limitations on the enjoyment and exercise of the rights established in this Protocol only through laws enacted with the purpose of preserving the general welfare within a democratic society, to the extent that they do not contradict the purpose and reason of the same." Thus, **it must be affirmed that the right to a pension (pensión) is not an absolute right; while the conditions under which it was granted must be respected, this does not imply that the amount received month by month is exempt from restrictions and limitations**. What the provision establishes is the recognition that economic and social rights entail benefit obligations for the State, which commit its resources, such that there is recognition that a counterbalance can operate to help delineate these restrictions and limitations, of course, provided they are reasonable and proportional. In this way, they cannot contradict the purpose and reason of the right in question. **Implicit in this provision is the necessity that it be the laws, approved through a democratic process and by a democratic body such as the Legislative Assembly, that manage to establish those restrictions and limitations that provide that balance, duly pondered.** In the case of the claimants, it is clear that the amount received by pensioners and retirees (jubilados) is adjusted to the amounts received by active officials, in this case, Deputies of the Republic. On the other hand, the approval of taxes, through law, in accordance with Article 121, subsection 13), of the Political Constitution ensures compliance with constitutional requirements, as well as conventional ones, of Article 5 of the Pact of San Salvador. The special, solidarity-based, and redistributive contribution thus complies with another important aspect, which is the principle of tax legality, in which only through formal and material law can the income of citizens of the Republic be taxed, which is inherited from the Anglo-Saxon legal tradition of necessary representation in the approval of taxes: "no taxation without representation".

Furthermore, as a tax, the special, solidarity-based, and redistributive contribution falls within the doctrine of the Tax Rules and Procedures Law, in the sense that it defines the taxable event (the benefit-pension) received as a state and welfare activity, and provides that the resources collected will be allocated to social security. In this regard, Article 4 of Law No. 9383 establishes this special contribution for social security quotas when it states that the collected resources return to the special pension regimes charged to the national budget, as well as the direct financing of the Non-Contributory Regime (Régimen No Contributivo), administered by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS). In the same vein, the sole article of Law No. 9380, insofar as it establishes the destination of contributions for special pension regimes charged to the national budget. With all of this, the provisions of Article 5 of the Pact of San Salvador are fulfilled. And, despite all of the above, the amount of the economic pension benefit is still maintained in an upper stratum of the national pension system, close to the income of those who provide services in a competitive labor sphere, which is why they maintain an economic level that still allows them to integrate and actively participate in the economic, social, cultural, and political spheres of the country. This is consistent with the requirement of adequacy and dignity for retirees and pensioners; of course, contribution and payment being necessary as the contributory capacity increases, especially for those regimes that had not been previously intervened due to the excesses they contained, without deprotecting the amounts of the other retirees and pensioners (…)” (The emphasis is not part of the original).

Now, regarding the Judicial Branch (Poder Judicial) itself, as noted in considering VII of this judgment, a few years ago, this constitutional jurisdiction, on the occasion of the enactment of the also cited Law No. 9544 —and mainly, by virtue of the provisions of Articles 236 and 236 bis of the Organic Law of the Judicial Branch— through judgment 2021-11957 of 17:00 hrs. on May 25, 2021, referred, firstly and grosso modo, to the figure of the special solidarity contribution specifically imposed on the retirees of this institution, and emphasized its constitutionality. To reach that conclusion, the Chamber, on that occasion, first also alluded to the right to enjoy a retirement, as well as to the limitations and regulations that can be imposed on it. On this matter, on this occasion, the following was expressly stated: “XXIII.- Drafted by Justice Hernández López. Regarding the right to enjoy a retirement. This Court has clearly indicated that the model of the Social State of Law and the concept of social security adopted by our Political Constitution include —as one of its elements— the right in favor of workers to obtain a retirement after fulfilling certain normatively established conditions. This is one of the forms of expression of the fundamental right to social security enshrined in our constitutional regulations, to which are added health insurance, the different types of contributory retirements, as well as non-contributory ones, among others. In this sense, judgment 2018-19030 of November 14, 2018, which served as a basis for resolving various retirement claims, clearly set forth the characteristics that this Chamber has specifically defined for this right: IV.- Regarding the right to retirement. Retirement constitutes the economic benefit (prestación económica) obtained after working and contributing to a specific regime for a specified period, and whose purpose is to guarantee a dignified life for the person after their stage as a worker ends. This Court has held, on repeated occasions, that the right to a pension must be categorized as a fundamental right, derived from numeral 73 of the Political Constitution, and which is acquired from the moment the person meets all the requirements established by the corresponding legislation. Likewise, the existence of different regimes has been recognized, such as Collective Capitalization, in which periodic contributions from members create a common fund from which the payment of participants' pensions will be met, or Individual Capitalization, in which periodic contributions do not come from a group of persons, but from an individual, who, through their contributions to the fund, intends to guarantee the payment of their pension when they meet the requirements for obtaining it. Finally, there is the pension regime charged to the National Budget, in which the financing of retirements and pensions is charged to the national budget. Now, regarding the general topic of the right to a pension, in rulings numbers 1147-90 of 16:00 hours on September 21, 1990, 487-94 of 16:06 on January 25, 1994, and 2010-1625 of 9:30 on January 27, 2010, the Court stated, in what is relevant, the following: “III.— First of all, the Chamber declares that there does exist a constitutional and fundamental right to retirement, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, according to which: “Article 33 Every man is equal before the law and no discrimination contrary to human dignity may be made" “ Article 73 Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of forced contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law may determine... " That conclusion is confirmed in a series of international human rights principles and norms, which have not only the rank superior to ordinary law conferred upon them by Article 7 of the Constitution, but also direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself, under the terms of Article 48 thereof (amended by Law No. 7128 of August 18, 1989); among these rights, specifically, those recognized in Articles 25, 28, 29, and 30—thus corrected those invoked in the action—of ILO Convention No. 102 on Social Security, which establish: " Article 25 Every Member for which this part of the Convention is in force shall guarantee to the persons protected the granting of old-age benefits, in accordance with the following articles of this part" " Article 28 The benefit shall consist of a periodic payment, calculated as follows... " " Article 29 1. The benefit mentioned in Article 28 shall be guaranteed, in the covered contingency, at least: a) to persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence... "2. When the granting of the benefit mentioned in paragraph 1 is conditional upon the completion of a minimum period of contribution or employment, a reduced benefit shall be guaranteed at least: "a) To persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment... " " Article 30 "The benefits mentioned in Articles 28 and 29 shall be granted throughout the entire course of the contingency" Other international texts also recognize, either specifically the right to retirement —due to age or old age— (e.g., Art. 16 American Declaration of the Rights and Duties of Man; 22 and 25 Universal Declaration of Human Rights; 31 International American Charter of Social Guarantees; 5th Convention concerning Equality of Treatment in Matters of Social Security, No. 118 ILO), or, in general, the Right to Social Security, within which retirement is universally understood to be included (e.g., Art. 11 American Declaration of the Rights and Duties of Man; and 9 International Covenant on Economic, Social and Cultural Rights). IV.— As can be seen, in both classes of the cited norms, the fundamental right of every worker to their retirement is recognized, and old age is clearly alluded to, in what is relevant, as the "contingency" determining the right to the benefit —retirement—. The objection of the Attorney General's Office is not understood by this, when it affirms that the provisions of ILO Convention No. 102 only protect "workers who suffered a contingency within their employment relationship, which is not the case of the petitioner... (f. 62 front); giving, it seems, to the expression an incomprehensible sense of abnormality, certainly without any explanation.” (…) “II. This Chamber has already considered the matter raised on other occasions (constitutional and fundamental right to retirement and a pension in favor of every worker), there being sufficient elements, and jurisprudence that empowers its consideration in accordance with the second paragraph of Article 9 of the Constitutional Jurisdiction Law. III. Through rulings number 6124-93, of fourteen hours thirty minutes, and 6125-93, of fourteen hours thirty-three minutes, both of November twenty-third of the current year, two actions of unconstitutionality were considered, the allegations of which were the same as those invoked by the petitioners in this one. In ruling number 1147-90, of sixteen hours on September twenty-first, nineteen ninety, the Chamber considered that the pension or retirement constitutes a fundamental right with constitutional and international recognition that: "belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution." Thus, it is recognized in Articles 25, 28, 29, and 30 of I.L.O. Convention No. 102 on Social Security, 16 of the American Convention on the Rights and Duties of Man, 22 and 25 of the Universal Declaration of Human Rights, 31 of the International American Charter of Social Guarantees, 5 of the I.L.O. Convention concerning Equality of Treatment in Matters of Social Security, No. 118, 9 of the International Covenant on Economic, Social and Cultural Rights, in the international sphere, which, in accordance with Article 7 of the Constitution, is integrated into our legal system. IV. The membership in a specific pension or retirement regime is acquired from the moment one begins to contribute to said regime, but not the concrete right to retirement, which is acquired when the interested party meets all the conditions established in the law,(…)” (…).

“ IV. The right to retirement and the Social State of Law. Articles 50, 56, and 74 of the Political Constitution configure 'the model of the social and democratic State of Law' (Ruling 9255 of 16:03 hours on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis for the State's internal policy, because the Social State of Law 'entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations' (Ruling 13205 of 15:13 hours on September 27, 2005). Consequently and based on the Social State of Law, 'our Political Constitution contemplates a set of welfare rights related to the protection of… workers' (ibid), as is the case with the right to retirement. (…)”. (Judgment 2018-19030 of November 14, 2020) XXIV.- Drafted by Justice Hernández López. The limitations and regulation of the scope of the right to a retirement recognized in favor of workers. On the topic of the right to retirement, this Court has also emphasized the power of the State to regulate, order, and limit the scope of the cited right. The same judgment 2018-19030, just cited, stated: “V.— The right to a pension is not an absolute right. Like any other fundamental right, the right to a pension is not unrestricted, as it can be subjected to certain limitations, as long as these are established by a formal law, are reasonable, and do not impede its exercise. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to a pension, when it can be proven that certain situations exist, such as inequalities or privileges, that jeopardize the sustainability of a regime, and, therefore, threaten the nature of the system as such. On this matter, in ruling number 2379-96 of 11:06 on May 17, 1996, the following was established: II.- REGARDING THE RIGHT TO RETIREMENT.- In repeated rulings, the pension or retirement has been recognized as a fundamental right in favor of the worker. See for all, this Chamber's pronouncement number 1147-90 of sixteen hours on September twenty-first, nineteen ninety, in which it was established: "In the first place, this Chamber declares that there does exist a constitutional and fundamental right to retirement, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being under conditions of equality and without any discrimination in accordance with Articles 33 and 73 of the Political Constitution..." However, in the same cited pronouncement, it was established that said right is not absolute and can be subject to conditions and limitations: "In reality, it is not ignored that the right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are also reasonably necessary for the exercise of the right itself, according to its nature and purpose. This is nothing other than an expression of a well-known principle of the Law of Human Rights, which can be called proportionality and which is generally included as a conditio sine qua non of the limitations and restrictions to such rights, exceptionally authorized by the very texts that enshrine them." From the foregoing, it is clear that within the entire universe of limitations, conditions, and restrictions that the fundamental right to retirement may undergo, there will be a group of them of which it can be said that they are constitutionally valid provided they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the exercise of the right itself in accordance with its nature and purpose. It is further correct to conclude that —by imperative of the structural logic of our legal system— the first of the conditions just indicated can be expanded to include limitations and conditions that come from texts of superior hierarchy or even of the same rank, as happens in this case with the limitations that may arise from the Political Constitution itself, understood not only as a grouping of norms, but as a set of regulations and principles integrated with an aspiration of harmony. Such concepts were endorsed by a majority of the Chamber, when evacuating the legislative consultation on the bill that finally became Law 9544 discussed here. In that pronouncement (judgment 2018-005758), it was reaffirmed: “(…) It should be noted that the right to retirement is not unrestricted, as it can be subjected to certain limitations, as long as these are established by a formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement, when it can be proven that certain situations exist that jeopardize the sustainability of a regime and, therefore, threaten the nature of the system as such.” And later, it concluded that: “Now, from the foregoing, it clearly emerges that the right to retirement can be subjected to limitations, like any other fundamental right. The foregoing implies that a person does not have a right to retire under specific conditions, since these can be varied when necessary to guarantee the existence of a specific pension and retirement regime, because otherwise, conditions could be created that make the system financially unsustainable, which would ultimately lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the lack of funds to pay the interested party the amount of their retirement.(…)” From what has been said, it is concluded that the thesis is well-established in the jurisprudence of this Chamber that the State, through its competent authorities, can adjust the concrete conditions for the exercise of the right to retirement enjoyed by workers, not only through the establishment of requirements to be met for its effective enjoyment, but also through the precise modification of the characteristics of that enjoyment, in order to balance the sustainability of said regime and respecting the requirement that the changes "be established by a formal law, be reasonable, and do not affect its essential content." (see judgment 2018-5758 just cited) (…)” (The emphasis is not part of the original).

A few lines later, in this same judgment 2021-11957, this Chamber addressed the special solidarity contribution (contribución especial solidaria) - created, as stated, through Law No. 9544, with the consequent amendment to article 236 bis of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial), likewise explaining and concluding the following:

"**XLV.- Drafted by Judge Hernández López. The constitutionality of the legal concept of a special, solidarity, and redistributive contribution in general**. This Court has stated on previous occasions that the so-called special, solidarity, and redistributive contribution is not equivalent to a tax (tributo) and does not constitute one in the terms provided by the Political Constitution in articles 18 and 121 subparagraph 13), since it is conceived solely to benefit the system of obligated contributors, but under no circumstances may those funds enter the state coffers as current income to satisfy expenses other than the burdens of the retirement and pension system (see in that regard judgment number 5236-99 of 14:00 hours on July 7, 1999). It has also been affirmed that this type of contribution is a legal obligation born from a system that contemplates the contribution of the servers who are enrolled, it being that this act of setting the contribution must indeed be controlled, such that it is possible to analyze, in a jurisdictional venue, respect for the established legal procedure and the reasonableness in setting the amount of the contribution (see judgment number 5236-99 of 14:00 hours on July 7, 1999). Thus, the special, solidarity, and redistributive contribution established in that numeral 236 bis of the Organic Law of the Judiciary is not a novel mechanism used by the legislator to attempt to strengthen a retirement and pension system; on the contrary, it has already been used in other systems, as was done in Law number 7268, which is the Reform of the National Teachers' Pension Regime (Reforma al Régimen de Pensiones del Magisterio Nacional), with this Court, in unconstitutionality action number 3683-M-93, having analyzed that contribution and considered the following:

"III.- REGARDING THE CONTRIBUTION PROVIDED FOR IN ARTICLE 12.- The contributions, both general and special, established for pensioners and retirees in article 12 of Law number 7268, have constitutional legitimacy, being in the first place measures based on the social nature of the retirement right, which are inscribed within the principles that make up the Social State of Law enshrined in Article 50 of the Constitution, and in the second place because, due to that indisputable social nature, the retirement right requires active and predominant State participation for its effective realization, so that although it could not be eliminated or completely neglected, it can be limited, conditioned, and restricted to the extent that the State - society - finds itself materially impeded from contributing to its effective realization beyond a certain level, such limitations having to be accepted because their purpose is precisely to ensure the survival and effective exercise of the retirement right for all workers, and specifically the materialization of the retirement right for all members of the National Teachers' Pension Regime. For further support, one may cite the resolution of this Chamber number 1925-91 of twelve o'clock on September twenty-seventh, nineteen ninety-one, in which it was pointed out:

"1) Nature of the contribution to the system: The first aspect consulted is to elucidate whether the contributions established in this article of the bill are or are not a tax. The retirement and pension system under analysis corresponds to the so-called contributory modality, in which a fund is constituted with contributions from workers, employers or patrons, and the State to cover the cost of the benefits, once the worker retires. It is for the Law to define, according to the special characteristics of each pension or retirement system, the amount of contributions corresponding to each of the three parties. As indicated in the consultation, the Supreme Court of Justice, in a resolution at fifteen hundred hours on August 12, 1987, declared without merit the unconstitutionality action filed against the power of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) to determine the quotas and benefits of social insurance. This Chamber shares what was expressed therein and finds no reason to vary that criterion, which it adopts as its own, declaring that the contribution referred to in article 12 of the bill, by its nature and effects, is not a tax, as the most qualified constitutional jurisprudence and doctrine have indicated." Also, in judgment number 1341-93 of ten hours thirty minutes on March twenty-ninth, nineteen ninety-three, the question was heard again, and the criterion issued on the matter was reiterated, stating the following:

VII.- CONTRIBUTION TO THE RETIREMENT AND PENSION FUND AND CONFISCATION.- It is also alleged, in the different retirement systems, that it is a violation of fundamental rights to require the beneficiaries thereof to contribute to the Fund, because it implies granting retroactive effect to Law 7268 or 7302, as the case may be, and ultimately, making the measure confiscatory. This Chamber, through Vote No. 1925-91 of 12:00 hours on September 27, 1991, expressed that the contributions collected pursuant to article 12 of Law 7268 do not constitute a tax, because the system is structured according to the so-called contributory modality, in which a fund is constituted with contributions from workers and beneficiaries, employers or patrons, and the State, to cover the cost of the benefits; and it is for the Law to define, according to the special characteristics of each pension or retirement system, the amount of contributions each party must make. This criterion was expressed by the Chamber in the Optional Legislative Consultation during the approval process of Law 7268 and in which article 12 referred to was specifically consulted. The Chamber indicated that the contribution is the payment of a legal obligation, an essential condition for the existence of the system itself, and which is fundamentally for the strengthening of the Fund, for the protection and benefit of the contributors themselves. The setting of the contribution, within the limits indicated by the same Law, must obey technical, actuarial criteria to define the real cost of the system, such that 'the only way the subjects holding a pension or retirement can fully enjoy it is by covering the proportional cost corresponding to them of the total system' (Cf. cited ruling) and the raison d'être of the law is thus appropriate to the Christian principle of social justice (Art. 74 of the Political Constitution) and proportionate to the duty to contribute to the extent of the benefit obtained. Under that same viewpoint, it was concluded that the contribution is not confiscatory. The Chamber finds no reasons to modify the expressed criterion, and with respect to this aspect of the amparo, it is appropriate to declare it without merit, maintaining its jurisprudence (Article 9 of the Law of Constitutional Jurisdiction)." Based on the foregoing, the special, solidarity, and redistributive contribution challenged in this unconstitutionality action must be understood as a constitutionally valid limitation on the right to retirement, arising from the social nature of that right, and therefore it is not unconstitutional in itself, nor in relation to the objectives pursued through its creation.

**XLVI.-. Drafted by Judge Hernández López. On the creation of the special, solidarity, and redistributive contribution as a power of the Legislative Branch**.- The plaintiffs argue that in accordance with the provisions of article 121 subparagraph 13 of the Political Constitution, the Legislative Assembly lacks competence to create special, solidarity, and redistributive contributions for a specific fund, since that subparagraph states "to establish national taxes and contributions (contribuciones nacionales)," recalling that the legislator's freedom of configuration is limited by Constitutional Law. Notwithstanding the foregoing, the Chamber considers that they are not correct in this claim because, as stated, the special, solidarity, and redistributive contribution is not configured as a tax (impuesto), but rather as a parafiscal charge (carga parafiscal), based on the social nature of the retirement right, which is inscribed within the principles that make up the Social State of Law enshrined in Article 50 of the Constitution, making it constitutionally valid, and also because, as stated, it is vested with an indisputable social nature protected by the State through the adoption of measures necessary for the effective realization of the social right it is aimed at, so its imposition is valid precisely to ensure the survival and effective exercise of the retirement right for all workers of the Judiciary.

Likewise, it must be remembered that, for the Chamber, measures such as the special, solidarity, and redistributive contribution - as social security contributions - are parafiscal contributions (contribuciones parafiscales), imposed in the exercise of the State's power of imperium for the fulfillment of social or economic purposes and which can only be created through formal law.

On the subject of parafiscal contributions, constitutional jurisprudence, following doctrine, has considered that parafiscal contributions are figures belonging to general taxation. By way of example, see judgments 4785-93 and 6478-96. In the latter case, the following was established:

"II.- On the merits: the petitioner challenges the employer's pecuniary obligation established by article 5 of the Organic Law of the Banco Popular y de Desarrollo Comunal, which is transcribed below, in the pertinent part:

'Article 5.- The Capitalized Labor Fund shall be formed by: a) A contribution of 1/2% monthly on the remunerations, whether salaries or wages, that must be paid by private employers, the Branches of Government, and all public institutions; and (...)', alleging violation of the right to private property and freedom of commerce. Regarding the alleged harms, it must be remembered that the amount charged to employers to constitute part of the mandatory savings of their employees consists of a parafiscal contribution, in the terms and with the consequences that this Court has defined:

"This special legal configuration necessarily implies that the contributions, both from producers and from third parties, including the State, that make up the Fund (subparagraph a) article 2 idem), are true contributions with clear economic and social purposes, known in Tax Law doctrine as 'parafiscal contributions,' which are imposed by the State but do not appear in the general income and expenditure budget, hence receiving the aforementioned denomination. The same Financial Law doctrine defines the figure as 'tributes established in favor of public or semi-public, economic or social entities, to ensure their autonomous financing.' This means, therefore, that the parafiscal contribution does not constitute a figure distinct from general taxation.(...)" In all the cases analyzed by constitutional jurisprudence of this type of contributions, we find a common denominator, and that is that we are facing a contribution coercively imposed by the State to achieve a specific economic or social purpose for a group of people who have common interests (farmers, professionals, cooperative members, workers, etc.).

(...)

A violation is invoked regarding the fact that the Legislative Assembly created a special tax, when, in accordance with numeral 121, subparagraph 13, of the Fundamental Charter, this constitutional body is only attributed the power to establish national taxes and approve municipal ones. This grievance must be rejected for several reasons. First, what is created in this case is a parafiscal contribution, that is, a tribute destined for an economic and social purpose, in this case to cover the administrative expenses of the Board being created, which is more than justified constitutionally and doctrinally. Secondly, it is logical that if a group of workers has a special retirement and pension system, forming a separate fund from the general system - that of disability, old age, and death administered by the Caja Costarricense del Seguro Social - it is reasonable and proportional that active workers, retirees, and pensioners contribute to the maintenance of the body whose competence is its administration. Finally, if the Legislative Assembly has the power to create taxes of general scope, this does not prevent it from creating parafiscal contributions when there are objective and reasonable grounds for their creation (...)" (The emphasis is not part of the original).

In this way, it is observed how the Chamber has been of the criterion that the imposition, per se, of the payment of a special solidarity contribution (contribución especial solidaria) cannot be classified as unconstitutional, nor does it represent a violation of fundamental rights, especially the rights of pensioners. The foregoing, above all, if one considers its objectives or purposes, which lie in guaranteeing the right to retirement, in this case, the right of the officials of the Judiciary.

**IX.- ON THE CURRENT OBLIGATION OF CONTRIBUTION BY JUDICIARY RETIREES, THE MAXIMUM CAP OF 55%, AND WHAT HAS BEEN RULED ON THE MATTER BY THIS CONSTITUTIONAL CHAMBER**. By virtue of what is set forth in ordinals 4 and 7 of Law No. 9796, the latter which, in turn, amended ordinal 236 bis, subsection a), of the Organic Law of the Judiciary, the Judiciary retirees who are currently obligated to contribute in a special, solidarity, and redistributive manner are those who receive a pension amount exceeding 6 base salaries of the lowest-paid position in the Judiciary. The foregoing, in turn, in accordance with the following table of amounts and percentages set forth in that same ordinal 236 bis of the Organic Law of the Judiciary, that is, the following:

"a) On the excess over the amount of six (6) base salaries of the lowest-paid position in the Judiciary and up to twenty-five percent (25%) of said threshold, they shall contribute thirty-five percent (35%) of such excess.

• b)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess over the previous margin they shall contribute fifty-five percent (55%[1])." Pursuant to the provisions supra, it is understood, then, that those who receive higher pension amounts must contribute higher sums to the system.

According to the study of the case records, for the second semester of 2019 - the year in which the challenged regulations were issued -, the lowest salary of the lowest position in that institution (General Services Assistant 1) corresponded to the amount of 425,800.00 colones. Therefore, those who then received - in the year 2019 - a gross pension amount exceeding ¢2,554,800.00 colones had to carry out said contribution, as stated, in a staggered or progressive manner.

For the first semester of 2023, according to data from the Human Resources Directorate of the Judiciary (Dirección de Gestión Humana del Poder Judicial), the lowest salary of the lowest-ranking position (corresponding to the position of General Services Assistant 1) was established at the sum of 433,800.00 colones, so that pensions greater than ¢2,602,800.00 colones were those that had to contribute in solidarity.

Having said the foregoing, it is worth noting that, in addition to said special contribution, a series of additional deductions are made from the pension amounts of Judiciary retirees. Pursuant to the provisions of ordinal 236, subsection 1°), of the Organic Law of the Judiciary - which was amended by the cited Law No. 9544 -, retirees must contribute 13% of their pension to the Judiciary Pension Fund. Besides that - as is clear from the report rendered by the then President of the Supreme Court of Justice - the amount related to administrative expenses of the Administrative Board of the Judiciary Retirement and Pension Fund is also deducted from the pension amount of Judiciary retirees ("five per thousand of the salaries earned by judicial servants, as well as of the retirements and pensions charged to the Fund," according to article 239 of the Organic Law of the Judiciary), income tax (ranging between 10% and 25%), a percentage for the CCSS maternity and sickness insurance (at 5.50%), among other sums.

Concomitantly, it is worth reiterating what, on this matter, Article 5 of Law No. 9796 under review stipulates, on the understanding that:

“In no case may the sum of the solidarity contribution and the entirety of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions that rightfully correspond to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” Based on the foregoing, it is therefore feasible to state that, pursuant to the provisions of the currently effective Law No. 9796, a series of deductions can be applied to the pension amount received by Judicial Branch retirees—including that related to the solidarity contribution—all of which, when summed, may reach a maximum percentage of 55%. A contrario sensu, this regulation allows, in these latter cases, that retirees of this institution receive only 45% of the original amount earned as a pension.

Now, at this point in this ruling, it is of utmost relevance to note that although—as explained above—this Constitutional Chamber has held that the imposition of a solidarity contribution payment is not in itself unconstitutional, it has also stated and considered, on other occasions, that the sum of the deductions made from the retiree's pension amount (including the amount for the solidarity contribution) cannot exceed 50%, such that any percentage established beyond that therefore translates into a condition of unconstitutionality.

This criterion was first upheld by this constitutional body in the aforementioned Ruling 2020-19274, of 16:30 hrs. on October 7, 2020—which corresponds to an unconstitutionality action brought against the provisions of Laws No. 9380, 9381, 9383, and 9388, and through which the deductions made to the pension amounts of regimes other than the Judicial Branch for the special solidarity contribution were precisely examined. On this occasion, on this particular point, the following was expressly stated:

“[T]he examination that must be made of the norms challenged in this action must contemplate an analysis that allows resolving, first hand, the legitimate claims of pensioned persons to have a certain stability in their rights, in their finances, and to make an adequate weighting of the State's needs to act within a framework of responsibility in managing the resources that serve to grant these pensions.&#xa0; (…)

Convention No. 102 of the International Labour Organization is not a rigid instrument, as it offers a framework that allows States to adapt their national realities to the protected schemes, but there are certain rules that must accompany national efforts to achieve the universalization of insurance, with coverage that is reasonable and balanced for the sectors involved. It should be noted, again, that when referring to the hard core of a right, reference is made to that part of fundamental rights in which the State would not be legitimized to interfere or transgress, because, in that case, it would be infringing upon the fundamental rights and freedoms contained in the Political Constitution as well as in international obligations acquired in international instruments on Economic and Social Rights. In general, this Chamber must therefore question, in this action, whether the legislation approved by the legislature, through Laws No. 9380, No. 9381, No. 9383, and No. 9388, is respectful or not of the international regulations invoked by the parties in their actions, as well as the national and international corpus iuris that forms part of the jurisprudential doctrine of this Court.&#xa0; This leads us to issues such as the obligations contained in Convention No. 102 of the International Labour Organization, regarding the rights of the beneficiaries, and those of good governance for the maintenance and preservation of these intergenerational solidarity mechanisms.&#xa0;&#xa0; It is important to point out that the Convention constitutes a mandatory reference framework for States; that is, it contains provisions that are the basis for the regulations they may subsequently approve according to the different types of coverage to which they committed themselves. It is not superfluous, as has been indicated on other occasions, that States can improve those standards. Adhering to that regulatory framework, Part XIII of the aforementioned Convention contemplates other 'Common Provisions' to the coverages offered to the insured, including the causes for suspension, the possibility of judicially discussing matters related to the rights involved, as well as the rules that generally govern administration. This means they are rules that amalgamate and unite some aspects of the coverages; and, consequently, some administrative aspects must be considered jointly.

In this manner, it contains two core principles, the principle of financial solidarity (collective financing and financial solidarity in International Labour Organization documents) and the principle of State responsibility, where the first enunciates the obligation contained in subparagraph 1) of Article 71 of the aforementioned Convention No. 102, which states:

'The cost of the benefits granted in application of this Convention and the administrative expenses of these benefits shall be collectively financed through contributions or taxes, or both means simultaneously, in a manner that avoids persons of modest economic means having to bear an overly onerous burden and that takes into account the economic situation of the Member and that of the categories of protected persons...'.

That is, this provision establishes an obligation for the State not to place the entire weight of the benefits system on the beneficiaries, particularly on those less fortunate. Hence, the possibility that the benefits covered by States under the Treaty can be financed through contributions and taxes (without being mutually exclusive financial instruments), so that it is a collective responsibility of the beneficiaries and the society in which a regime is contextualized. This evidently obligates present and future beneficiaries through contributions, as well as society as a whole, through tax schemes. And, principally, it can be affirmed that it includes a protection clause for the weakest beneficiary, such as persons of lesser means, by establishing a safeguard that prevents burdening these beneficiaries.

On the other hand, the principle of State responsibility in the provision of benefit obligations would be present in the same Article 71, but in subparagraph 3) of the aforementioned Convention No. 102.&#xa0; Said provision stipulates:

'The Member shall assume general responsibility regarding the service of benefits granted in application of this Convention and shall adopt, when appropriate, all necessary measures to achieve that end; it shall guarantee, when appropriate, that the necessary actuarial studies and calculations relating to balance are carried out periodically and, in any case, prior to any modification of the benefits, the insurance contribution rate, or the taxes intended to cover the contingencies in question.' It is clear how the State is the guarantor of the country's pensions. This paragraph establishes a series of guarantee obligations for the State, especially that referring to leadership regarding the service of benefits granted, which includes the formalities it must observe when exercising the implicit obligation to monitor and materialize all measures involved in preserving pension funds, including corrective ones. In this sense, the shortfall in resources generated by problems in administration could not be blamed on or borne by the beneficiaries; on the contrary, the Convention establishes that the State must guarantee the benefits granted in all cases. As will be stated later, this would encompass all the benefits to which it committed, established by Convention No. 102 of the International Labour Organization, especially because they constitute the sole means of subsistence that protected persons may come to have due to the occurrence of social security coverages.

Now then, it is of interest, in the case at hand, to elaborate on the general lines of subparagraph 2) of Article 71 of Convention No. 102 of the International Labour Organization, insofar as it establishes the following:

'The total of insurance contributions payable by protected employees shall not exceed 50 percent of the total resources destined for the protection of employees and the spouses and children of these. To determine if this condition is met, all benefits provided by the Member in application of this Convention may be considered together, with the exception of family benefits and, in the case of employment accidents and occupational diseases, if the latter depend on a special branch.' A first point that must be noted is that this subparagraph 2) of paragraph 71 of the aforementioned Convention can be interpreted in the sense that the costs for 'employees' of all contributions payable by them shall not exceed 50% to cover all beneficiaries (employee, spouses, and children). Clearly, the rule refers to an international obligation and a restriction that States have freely accepted, which they must apply in good faith in favor of the beneficiaries, such that it includes a cap on the taxing power that the State can exact from employees, whether in contributions or taxes (subparagraph 1). This Court observes that the provisions refer to a total 'of resources destined for protection', which are precisely obtained from contributions or taxes, 'or both means simultaneously'.&#xa0; Thus, it is a globally considered requirement regarding the quantum of the financing mechanisms that the State can use when exercising the taxing power over 'employees'.&#xa0; This conclusion can be reached when it enunciates the following normative parameter: 'To determine if this condition is met, all the benefits provided by the Member […] may be considered together...', except for family benefits and work-related risks, which could increase the quota.

To better illustrate the international obligation, it is necessary to refer to the General Survey concerning social security instruments, conducted in light of the 2008 Declaration on Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), Report III (Part 1B), held at the International Labour Conference, 100th session, 2011, which indicates the following:

“455. Regardless of the sources and mechanisms of financing, the State 'shall assume general responsibility as regards the service of benefits granted in application of this Convention and adopt, where necessary, all appropriate measures to achieve that end' (Article 71, paragraph 3, of Convention No. 102). The overall financial responsibility of the State is complemented and reinforced by its 'general responsibility for the proper administration of the institutions and services contributing to the application of this Convention' (Article 72, paragraph 2). From a financial perspective, the general responsibility of the State generates numerous related obligations, including the need to ensure that: 1) the rates of contributions or taxes entering the system, while remaining sufficient to finance the cost of the benefits, do not constitute an overly onerous burden for persons of modest economic means, the specific classes of protected persons, and the economy in general (Article 71, paragraph 1); 2) the costs of benefits are distributed equitably among employees, their employers, and the State, such that the total percentage of insurance contributions payable by employees for the financing of the system that provides them and their families protection does not exceed 50 percent, while the remainder of the funds come from employer contributions and State subsidies (Article 71, paragraph 2); 3) adequate benefits are paid periodically from the system, not lower than the minimum level established by the Convention (Articles 65, 66, and 67); 4) the income and costs of the system are kept in a fairly stable financial equilibrium (Article 71, paragraph 3), and 5) measures are provided tending to minimize the possibility that social security funds are misused, lost, or subject to embezzlement. The system of public institutions responsible for the supervision of social security schemes varies by country…”.

In turn, attention is drawn to the same criterion expressed by the Committee of Experts, but this time, regarding the principle of collective financing, when stating that:

“443. An obvious precondition for a social security scheme to be effective is that it must have effective mechanisms that allow it to obtain resources. The certainty, security, and adequacy of benefits paid from social security funds depend on the regular and systematic inflow of financial resources and raises the basic question of determining how such resources should be collected. Broadly speaking, there are two main options for this purpose with a view to achieving a balance between the system's income and the expenditures arising from benefits: increasing the necessary resources collectively, that is, with the participation of all members of the community, or allowing each member to depend exclusively on the individual accumulation of capital, the investment of which will provide the future benefits. The instruments under examination, like all updated ILO social security conventions, are based on the principle of the collective financing of benefits, according to which the cost of benefits, as well as the expenses their administration entails, shall be collectively financed through contributions or taxes, or by both means simultaneously, while they must be distributed equitably among the interested parties (Article 71, paragraph 1, of Convention No. 102). This question was clearly raised during the preparatory work for Convention No. 102: 'The main problem relating to financial resources that must be considered in international regulation seems, therefore, to be that of the appropriate distribution of financial responsibilities among the insured, employers, and the State. […] It forms an essential part of the concept of social security that the risk considered must be met through the collective assumption of the financial burden that the payment of benefits represents. Various combinations of contributions or taxes are possible to carry out this idea. The wording of the questionnaire does not try to contradict these concepts, except that it does not allow solutions that imply overburdening persons of limited resources. The questionnaire also suggests the desirability of setting a maximum limit for employee participation, so that at least half of the resources of the social security systems are obtained more equitably through State subsidies or employer contributions' (quoting 'International Labour Organization, 1950, Report IV (1), pp. 134 to 136').” In the same way, the Committee of Experts ensures it describes the breadth of options that countries can agree upon when meeting the financing obligations of social security schemes, and mentions that:

“444. The Committee observes that national practices relating to the financing of social security schemes show a significant range of options, spanning from tripartite contributions by the insured, employers, and the State, to schemes financed by the contributions of each of these actors separately, as well as programs jointly financed by worker and employer contributions, with or without State subsidies. In view of such diversity of national policies regarding financing, Convention No. 102 did not attempt to 'give its approval to any specific financing method, to the exclusion of any other alternative procedure,' but sought to 'determine certain very broad basic principles, to which different countries could adhere even when applying entirely different financial policies' (quoting 'International Labour Organization, 1950, Report IV (1), p. 136').” If the Convention establishes the reasonable and precise need, and with the objective of establishing a solidarity system, then the need for establishing the contribution and the contributions from employees for the establishment and sustainability of a social security system cannot be questioned. That would be part of the intergenerational responsibility of this type of system. Subparagraph 2) of Article 71 of Convention No. 102 of the International Labour Organization is carefully designed to cap the State's power to demand contributions, quotas, fees, charges, income, and taxes from the beneficiaries of the pension system; first of all, taking into account the ability to pay, which is clear when the commented norm does not place all the weight and burden on the 'employee' or, in the aforementioned report, the 'insured'. Second, it cannot be understood as detached from the individual historical sacrifices of the beneficiary to achieve those formal and substantive requirements for access to the right to a pension. Third, the provision is careful to distribute the responsibility for the scheme among the different social actors, including the State, primarily, in its dual role as employer and in its condition as administrator and generator of good administration policies.

But the case at hand requires clarifying the meaning of the word 'employee' contained in subparagraph 2) of Article 71 of the cited Convention, as it does not seem to refer only to active workers. It would remain to determine if 'employee' means only the worker before acquiring the right to a pension due to the advent of the formal and substantive conditions of the right, or if it is possible to understand that 'employee' also refers to another type of beneficiary of the system. In the Chamber's opinion, a broader interpretation should be given that includes not only the active worker, to admit that in effect, the pensioner or retiree would be included in this concept. In fact, although anticipating what will be stated later, this position is compatible, from a legal and economic point of view, in that the pensioner or retiree receives a deferred salary that they built with their contributions throughout their working life. Even so, it cannot be disregarded that in the Committee of Experts' document, the concept of employees evolves when it refers to 'insured'. Thus, this concept should be assimilated to both obligors, as potential and actual insured: pensioner and employee. Note that the cited study emphasizes that there is no straitjacket for States; on the contrary, the approach must respond to national contexts, and the evolution of systems to agree on a solidarity system of financing and good governance within the framework and evolution of human rights cannot be dismissed, as will be stated below. If the provision seeks to achieve a balance, it is perfectly understandable that all those who receive a monetary sum resulting from the agreed benefit should be included, because in that sense, it distributes that burden among all participants, which is what the international norm truly seeks to establish. This interpretation would replicate positively with the Committee of Experts, already cited. Consequently, it must be understood that 'employee' or 'insured' has a broad meaning, and that it is not a term that excludes persons who are pensioned or retired.

Having established the above, that both contribute, then the principle of collective financing for this type of benefits follows as a natural consequence, which, as indicated, would consist, on one hand, of the contributions and/or quotas of employees and employers; and, on the other, also includes the support of the entire community: that is, of society through the State's taxing power. In accordance with this principle contained in the conventional norm, it is established that the cost of the benefits must be distributed among the beneficiaries, the employers, and the State (in a broad sense).

This results in the beneficiaries not having to bear alone the burden of administration and maintenance of the pension regimes, since for this, by international obligation, they must be included in the universe of other interested parties, as an integrated system of more equitable relations in the population, which aims to prevent old age from implying an impoverishment of the population, which already, by the natural aging process, results in making the person more socially and economically vulnerable as they advance in age.

In the aforementioned Article 71, there are two regulations relevant to the case at hand, which allow us to affirm that there is a double protection: one that seeks not to harm the most modest benefits of the system; and another, that of social and community solidarity, which leverages the system to prevent half the burden of the economic and administrative cost from being placed solely on the beneficiaries, but rather constitutes a true international obligation of the State to procure, administer, and correctly direct the benefits, providing income from contributions and taxes that allow a more equitable distribution of the other half of its costs. In this sense, the crux of the constitutionality problem before us lies in establishing whether that percentage has been illegitimately exceeded, and what must be taken into consideration, whether all the contributions and tax levies to which the pensioner or retiree would be subjected, or only those destined for the pension fund.

In this sense, the first point that must be examined is the provisions that contemplate the contribution for active workers and pensioners and retirees, established in Law No. 9380, as well as the special, solidarity, and redistributive contributions, as well as other taxes applied to salaries and pensions exceeding a certain number of public administration base salaries, in which case all apply to the excess amounts. Under examination is Law No. 9380, of July 29, 2016, called "CONTRIBUTION PERCENTAGE OF PENSIONERS AND ACTIVE SERVERS FOR THE SPECIAL PENSION REGIMES," which states:

"SINGLE ARTICLE.- Article 11 of Law No. 7302, Creation of the General Pension Regime Charged to the National Budget, Other Special Regimes and Reform of Law No. 7092, of April 21, 1988, and its Reforms, Income Tax Law, of July 8, 1992, is reformed. The text is as follows:

"Article 11.- [...]

In no case may the total of the deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is entitled by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." It is also appropriate to transcribe a similar rule in Law No. 9383, of July 29, 2016, called "FRAMEWORK LAW ON THE SPECIAL CONTRIBUTION OF THE PENSION REGIMES," insofar as it states:

"Article 3.- Special, solidarity, and redistributive contribution of pensioners [...]

In no case may the sum of the special, solidarity, and redistributive contribution and the total deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is entitled by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." In the opinion of the Chamber (Sala), the regulation infringes upon the terms of paragraph 2 of Article 71 of Convention No. 102 of the International Labour Organization, by establishing a cap higher than 50%, which implies a burden on certain "wage earners" who receive a higher economic benefit, and the State's failure to formulate tax or contributory proposals that do not exceed this amount. Despite the fact that the legislator took care to establish a 55% limitation on the total gross amount of the pension, it exceeds it by at least 5%. In accordance with the doctrine cited above, this implies a violation of the hard core of the right to retirement or pension, to the extent that pensioners and retirees have seen their retirement or pension benefits reduced in proportions even greater than that defined in International Labour Law, bearing beyond the limits established in the conventional norm (...)" (Emphasis not part of the original).

Consequently, the operative part of the cited judgment 2020-19274 —subsequently corrected by interlocutory resolution No. 2020-19632, of 13:33 hrs. of October 9, 2020— recorded, regarding the point of interest, the following:

"Por tanto: By majority, the accumulated unconstitutionality actions are partially granted. Consequently, the contribution percentage and the special contribution established in Laws No. 9380 and No. 9383, both dated July 29, 2016, are annulled, insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, starting the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment pursuant to this judgment, in such a way that the tax burden on the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner (...)".

The following year, specifically, through the aforementioned judgment 2021-11957, of 17:00 hrs. of May 25, 2021, this Chamber, based precisely on the provisions of the referred Sentence No. 2020-19274, analyzed the provisions of the previously cited Articles 236 and 236 bis of Law No. 9544 (Reform of the Organic Law of the Judicial Branch), specifically, the indication contained therein that the sum of the special contribution and the rest of the deductions to be applied to the gross amount of the pension could not exceed 55%, and also held it to be unconstitutional. The foregoing, in the following terms:

"XLI. Drafter: Magistrate Araya García. A different response must be given to the case that some of the plaintiffs raise around this same issue, since they point to the constitutional invalidity of the norm contained in the final part of Articles 236 and 236 bis of the Organic Law of the Judicial Branch reformed by the Law under discussion, because —this time— they claim that a maximum cap of 55 percent of deductions on the gross retirement amount is regulated, which they consider excessive and harmful to the fundamental right to retirement. On the concrete issue, this Chamber had the opportunity to define its position in the recent judgment number 2020-19274 of 16:30 hrs. of October 7, 2020, in which its operative part stated: (...)

"By majority, the accumulated unconstitutionality actions are partially granted. Consequently, the contribution percentage and the special contribution established in Laws No. 9380 and No. 9383, both dated July 29, 2016, are annulled, insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, starting the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment pursuant to this judgment, in such a way that the tax burden on the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner. (...)

The majority of the Court concludes from the preceding pronouncement that under Costa Rican Constitutional Law, it is not acceptable for the reduction of gross retirement amounts to exceed a maximum of 50 percent established in said judgment. From the foregoing, it is evident that Articles 236 and 236 bis of the Organic Law of the Judicial Branch, reformed by the contested Law 9544, are unconstitutional, as both establish 55 percent as the maximum cap for legal deductions, which exceeds by 5 percentage points the maximum established by this Court in the cited judgment (...)

Consequently, the final part of Articles 236 and 236 bis of the Organic Law of the Judicial Branch, reformed by the contested Law, must be partially annulled, but solely and exclusively with respect to those 5 percentage points of excess over 50 percent established by this Chamber as the maximum cap for legal deductions on the gross retirement or pension amounts (...)" (Emphasis not part of the original).

In its operative part, this last judgment stated, regarding what is of interest, the following:

"Por Tanto: (...) Regarding the substantive grievances: The accumulated unconstitutionality actions are partially granted, and consequently it is ordered:

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez), the contribution percentage and the special, solidarity, and redistributive contribution are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effects of this resolution, so that, starting the month following the notification of the judgment, the competent authorities must make the corresponding adjustment pursuant to this judgment, in such a way that the tax burdens on the amount of retirements and pensions do not exceed 50% of the gross amount received by the retiree or pensioner. Magistrate Castillo Víquez gives different reasons. Magistrate Garro Vargas, for her own reasons, grants this point of the unconstitutionality action, ordering the partial annulment of the provisions in Articles 236 and 236 bis of the Organic Law of the Judicial Branch; likewise, she warns that the unconstitutionality she declares affects the excesses of the special solidarity contribution with respect to that 5% and not the rest of the deductions applied by law to all pensioners and retirees of the Pension and Retirement Fund of the Judicial Branch. Magistrate Hernández Gutiérrez gives additional reasons. Magistrate Rueda Leal and Magistrate Hernández López dissent and declare this point without merit, as they did in judgment No. 2020-19274 of 16:30 hrs. of October 7, 2020, given that, according to the express text of Article 67 of the ILO C102 of 1952 Social Security Convention (minimum standard), the pension or retirement can be reduced as long as 40% of a reference salary is respected, which is not proven to be automatically and evidently transgressed by the content of the contested norms (...)".

Finally, it should be noted that, more recently, through judgment number 2024-6250, of 16:30 hrs. of March 6, 2024 —whose operative part was subsequently corrected by interlocutory resolution No. 2024-7056, of 13:37 hrs. of March 13, 2024— this Chamber carried out the constitutionality review of the current Law No. 9796, but referred exclusively to the situation of the retired person from the National Teachers' Regime (Régimen del Magisterio Nacional). On this new occasion, also based on the provisions of the previous judgment No. 2020-19274, this jurisdiction ordered that the cited Article 5 of that same regulatory body be declared unconstitutional, as far as it pertained solely to the pensioners of the National Teachers' Regime —given that this article set pension deductions of up to 55%—, in the following terms:

"POR TANTO: The accumulated unconstitutionality actions are partially granted. Consequently, the contribution percentage and the special contribution established in Art. 5 of Law 9796 are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person of the National Teachers' Regime. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, starting the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment pursuant to this judgment, in such a way that the tax burden on the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner. Magistrate Castillo Víquez gives different reasons. Magistrate Cruz Castro gives additional reasons. Magistrate Garro Vargas records different reasons. In all other respects, the accumulated unconstitutionality actions are declared without merit. Magistrate Garro Vargas records a note. Magistrate Rueda Leal dissents and declares the actions inadmissible, because the amparo remedies that served as prior matters were filed when the questioned law had not yet been applied to the protected parties; that is, they do not constitute reasonable means for the purposes of these constitutionality control processes. Notify this pronouncement to the Legislative and Executive Branches, as well as to the National Teachers' Pension Board. Summarize this pronouncement in the Official Gazette La Gaceta and publish it in full in the Judicial Bulletin. Notify." Magistrate Salazar Alvarado records a note (...)".

In the present matter, as has already been stated, the plaintiffs challenge precisely that reduction of up to 55% also applied to the amount of the pensions, but limited to the situation of the retired employees of the Judicial Branch, which, as noted, is now established or permitted in the provisions of the cited Article 5 of Law No. 9796.

Thus, in the opinion of this Court, and consistent with what was indicated in the preceding antecedents, it is feasible to preliminarily indicate that the pecuniary obligation to which the retired employees of the Judicial Branch are subjected —by virtue of the provisions of the cited Article 5 of the law under review— is indeed unconstitutional, insofar as the amount to be deducted exceeds the cited 50%. Thus, what is unconstitutional is that extra 5% established in the norm under examination.

Under that understanding, the proper course, in the first instance, is to annul the contribution percentage and the special contribution established in Article 5 of Law No. 9796 insofar as they exceed 50% of the gross amount of the pension corresponding to the person retired from the regime of the Judicial Branch, in accordance with the arguments that this Chamber has already upheld on the matter in the precedents transcribed supra.

X.- ON THE PARTICULAR GRIEVANCES RAISED BY THE PLAINTIFFS. It is now appropriate, in light of the considerations set forth above and the precedents of this Constitutional Court, to carry out a detailed analysis of each of the grievances raised by the plaintiffs. The foregoing, according to the following order of considerations:

A. On the violation of the rights to retirement and social security. The plaintiffs argue that the regulation in question —through which a deduction of a sum for the special solidarity contribution is imposed on the pension amount— violates the right to retirement, as it is also part of the right to social security.

The interested parties maintain that, although these rights can be limited, such limitations must be imposed in accordance with the provisions of international instruments. They mention that Law No. 9796 violates the provisions of international instruments that protect the fundamental right to retirement, such as Article 25 of ILO Convention No. 102, numeral 5 of ILO Convention No. 118, Articles 22 and 25 of the Universal Declaration of Human Rights, and Article 16 of the American Declaration of the Rights and Duties of Man, which refer to the protection of benefits or insurance, mainly for old age. They also indicate that the provisions of ILO Convention 102 are of special importance, as it seeks the protection of workers as contributors to social security regimes, such as pension funds; in particular, they refer to Article 29, point 1, subsection a), which indicates to whom the benefit indicated in Article 28 of that same regulatory body must be guaranteed. Consequently, they believe that the provisions of Constitutional Article 7, which establishes that public treaties, international conventions, and concordats (duly approved by the Legislative Assembly) have authority superior to the laws, have been violated.

For the purpose of resolving this first grievance raised, it is necessary to recall what was amply explained by this Chamber in Considerando VIII of this judgment. From what was stated therein, it is reiterated, it is established that the fundamental right to retirement indeed exists, as part of the fundamental right to social security; rights that, in turn, are not only enshrined and protected domestically, but in various international instruments. Likewise, this Chamber has already convincingly explained that this right to a pension and, in particular, the amount for that concept, is not absolute and, on the contrary, can be subject to reasonable limitations or restrictions, through the issuance of a formal law. Thus, within that type of limitation is the figure of the special, solidarity, and redistributive contribution, which, as also affirmed, can be validly imposed on the sector of retirees. This jurisdiction, according to the precedents cited above, has held, then, that the special, solidarity, and redistributive contribution must be understood as a constitutionally valid limitation on the right to retirement.

Now, the plaintiffs' main argument is that the regulation in question is contrary to the provisions of the referred international instruments, and therefore, from their perspective, it causes an injury to the fundamental right to retirement.

However, it should be noted that a reading of the content of the regulations challenged through this constitutionality proceeding does not allow one to deduce, per se and at first glance, an arbitrary or evident contradiction with the norms contained in the international instruments referenced by the claimants. Nor do the interested parties—it should be emphasized—clearly explain how, from their perspective, this alleged clash that would lead to a declaration of unconstitutionality of the norms under study occurs.

Note that Articles 22 and 25 of the Universal Declaration of Human Rights expressly state the following:

“Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” “Article 25. 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” For its part, Article XVI of the American Declaration of the Rights and Duties of Man indicates that:

“Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living.” Articles 25 and 29, paragraph 1, subsection a), of ILO Convention 102—Social Security (Minimum Standards) Convention—(which was ratified by Costa Rica) provide:

“Article 25. Each Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part.” “Article 29, paragraph 1, subsection a): 1. The benefit specified in Article 28 shall be secured, in the contingency covered, at least: (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 30 years of contribution or employment, or 20 years of residence.” Finally, Article 5 of ILO Convention 118—Equality of Treatment (Social Security) Convention—(which, it should be clarified, has not been ratified by our country), establishes the following:

“1. In addition to the provisions of Article 4, each Member which has accepted the obligations of this Convention in respect of one or more of the branches of social security referred to in this paragraph shall secure, to its own nationals and to the nationals of any other Member which has accepted the obligations of this Convention in respect of the corresponding branch, when they are resident abroad, the provision of invalidity benefits, old-age benefits, survivors' benefits, and death grants, and the provision of pensions in respect of employment injuries, subject to measures for this purpose being taken, where necessary, in accordance with Article 8. 2. Nevertheless, in the case of residence abroad, the provision of invalidity, old-age and survivors' benefits of the type referred to in paragraph 6(a) of Article 2 may be made subject to the participation of the Members concerned in schemes for the maintenance of rights as provided for in Article 7. 3. The provisions of this Article shall not apply to benefits granted under transitional schemes.” As can be deduced with crystal clarity, the supra transcribed norms enshrine the right to old-age benefits (pension or retirement), which would appear not to contradict what is provided regarding the right to retirement, starting from the fact that, as has already been stated, the latter can be subject to valid limitations, such as the imposition of a special solidarity contribution. In this sense, one could validly argue that Judicial Branch retirees are not being deprived of their old-age benefit—which is precisely the right recognized in such international regulations—but rather, they are merely being subjected, through Law No. 9796, to a reduction of that amount, by virtue of the special solidarity contribution—and the consequent reduction of the exempt bases of the pension amounts so that the progressive tables of the solidarity contribution can be applied.

Notwithstanding the foregoing, it is also important to remember that this Chamber, based specifically on the provisions of the cited judgment 2020-19274, of 4:30 p.m. on October 7, 2020, was clear in mentioning that, insofar as—due to the special solidarity contribution—deductions exceeding 50% are imposed on the pension amount of retirees, this would indeed constitute a violation and flagrant breach of the hard core of the right to retirement. A conclusion that, as observed, was reached especially based on the provisions of Article 71, paragraph 2, of the cited ILO Convention 102.

In the case under study, as explained in the preceding considerando, Article 5 of Law No. 9796 provides that deductions of up to 55% can be made from the pension amounts received by Judicial Branch retirees, thus contravening the right to retirement, as part, in turn, of the right to social security, as well as the provisions of the referenced international instrument. This same position, that is, regarding the violation of the right to retirement and the right to social security, it should be mentioned, was also upheld by this jurisdiction a few months ago, when examining the constitutionality of Law No. 9796 (with respect to National Teachers' Union retirees), through Judgment No. 2024-6250 of 4:30 p.m. on March 6, 2024. On that latter occasion, it was held that, indeed, that additional 5% deducted from the pension of retirees of that specific regime was harmful to the fundamental rights to social security and to retirement.

In addition to the above, it is worth noting that in the referenced judgment 2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber also ruled, in light of the provisions of international regulations, on those old-age benefits (prestaciones por concepto de vejez) to which the claimants refer, and concluded the following:

“XI.- On the international protection of the elderly. In other points of the claimants' briefs, the violation of various human rights instruments is alleged, to maintain that Articles 1, 2, 3 and 4 of Law No. 9383 and the sole article of Law No. 9380 violate the social security network for the elderly, and produce economic vulnerability due to an abrupt decrease in income. (…) But, in another facet of the discussion, the truth is that there is an infringement of the Inter-American Convention on Protecting the Human Rights of Older Persons, according to the line that has been followed in this judgment. “Article 1. Scope of Application and Object. The object of the Convention is to promote, protect, and ensure the recognition and the full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of the older person, in order to contribute to his or her full inclusion, integration, and participation in society. The provisions of this Convention shall not be interpreted as a limitation on broader or additional rights or benefits recognized by international law or the domestic legislation of States Parties, in favor of the older person. If the exercise of the rights and freedoms mentioned in this Convention is not already guaranteed by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional procedures and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to such rights and freedoms. The States Parties may only establish restrictions and limitations to the enjoyment and exercise of the rights established in this Convention through laws enacted for the purpose of preserving the general welfare in a democratic society, insofar as they do not contradict the purpose and reason of the same. The provisions of this Convention shall apply to all parts of federal States without any limitations or exceptions.” On the other hand, Article 4, of the Convention at hand, establishes the following: “Article 4. The States Parties undertake to safeguard the human rights and fundamental freedoms of the older person enunciated in this Convention, without discrimination of any kind, and to this end: a) … d) They shall adopt the necessary measures, and when deemed appropriate within the framework of international cooperation, to the maximum extent of their available resources and taking into account their degree of development, in order to achieve progressively, and in accordance with domestic legislation, the full effectiveness of economic, social and cultural rights; without prejudice to obligations that are immediately applicable under international law. Similarly, to link what has been transcribed above, it is relevant to the foundation of this judgment that the Convention also establishes that: “Article 17. Right to social security. Every older person has the right to social security that protects him or her to lead a dignified life. The States Parties shall progressively promote, within available resources, that the person receive an income for a dignified life through social security systems and other flexible social protection mechanisms. All provisions in this article shall be in accordance with national legislation.” From these norms, it is clear that the disregard of ILO Convention No. 102, ratified by Law No. 4736 of March 29, 1971, results in the breach of the right to social security contained in the Inter-American Convention, when the claimants precisely allege that Article 25 of the aforementioned Convention No. 102 establishes that “Each Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part”; in that regard, this Tribunal is recognizing that there is a ceiling in favor of “employees,” as explained supra, and it merits the protection established by the Inter-American Convention on Protecting the Human Rights of Older Persons. In this way, if this Convention guarantees the full effectiveness of economic, social, and cultural rights, within which social security is found, it could not be maintained that the legislator legitimately allows the application of tax levies up to an excess of 5% over the applicable limit, given that it is openly regressive for the human rights of the beneficiaries, in itself unconventional, for being contrary to the Inter-American Convention, as well as ILO Convention No. 102. In this sense, one must reach the conclusion that the provisions allowing deductions above 50% of the gross pension amount are unreasonable, disproportionate, and unconventional, and this must also be declared at this time (…)” (The emphasis is not part of the original).

By virtue of the considerations set forth, the appropriate course is to uphold this aspect of the present unconstitutionality action.

B. Regarding the confiscatory nature of the pension amount. The claimants maintain that the total amount reduced from the pension of Judicial Branch retirees—nearly 70%, reduced to 55%, due to the provisions of the challenged regulations—becomes confiscatory and, therefore, unconstitutional, for violating the provisions of Article 40 of the Constitution. They argue that the contribution imposed on this sector is inconceivable and unsustainable. They point out that the principle of non-confiscation constitutes a limit on the exercise of tax power, linked to the principles of ability to pay and progressivity; in addition to representing a protection mechanism for the right to private property.

In this regard, it should be noted that this Constitutional Chamber has held that, to the extent that the amounts to be deducted from the pension (including that relating to the solidarity contribution) exceed the already cited 50%, this does indeed constitute arbitrary confiscation. Note that in the aforementioned Judgment No. 2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber extensively explained the following:

“X.- On the allegation of non-confiscation alleged in the actions. The principle of non-confiscation is not expressly established in the Political Constitution, but must be implicitly derived from the relationship of Articles 18, 45, and 50 of the Magna Carta, as a limit on the tax power of the State. The Chamber, in delimiting the principle of non-confiscation, has established its intrinsic relationship with some fundamental rights, but preferentially with the right to property, especially when dealing with material as well as immaterial rights. Thus, by Judgment No. 1993-05749 of 2:33 p.m. on November 9, 1993, this Chamber established: “The State can take a proportional part of the income generated by the individual, to cover its expenses, but always provided it does not annul the property as such, as would be the case if the tax totally absorbs the income. If the Constitution protects the right of property to the integral patrimony, one cannot recognize and admit that other provisions destroy it. Thus, to be constitutional, taxes must not denaturalize other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposal, and prohibits confiscation, so a taxation measure that goes beyond what is reasonable and proportional cannot be permitted. The tax is a means of economic policy, which must be harmonized with public spending and the economic situation, and its limit is the individual's tax capacity. The ordering of taxes must be based on the principles of generality and equitable distribution of public burdens. The application of the principle of equality refers to the proportionality of taxes, the quotas needing to be unequal to produce equal sacrifices, so that there is relative equality regarding payment capacity, that is, the economic capacity of the subject who must pay must be considered. If the Constitution in its Article 45 establishes that property is inviolable, and in its Article 40 that no one shall be subjected to the penalty of confiscation, it is undeniable that the tax cannot be such that it makes such guarantees illusory. What we must understand by ‘substantial part of the property or income’ is something that cannot be established in absolute terms; the component of discretion or reasonableness must be assessed in each specific case, circumstantially, according to the needs of fact, the exigencies of time and place, and the economic-social purpose of each tax.” But it is possible to establish as a principle that a levy is considered confiscatory if it exceeds the economic or financial capacity of the taxpayer, or if the tax absorbs a substantial part of the taxed transaction, and it will be up to the Judge, in each case, to analyze these circumstances, which will, logically, be variable, and the correct approach is to analyze these situations concretely.” Similarly, this doctrine is repeated in other rulings of this Chamber, in which it has defined the principle of confiscation; for example, in ruling No. 1995-554, issued at 16:45 hours on January 31, 1995 – reiterated by the cited Ruling No. 2003-5276, issued at 14:54 hours on June 18, 2003 –, among others. From the foregoing, the premise is clear that taxes must not distort other fundamental rights, especially when the Political Constitution establishes the inviolability of private property, as well as its free use and disposition, and the prohibition of confiscation. This latter prohibition must be understood as the impossibility of dispossessing a person, through a disproportionate penalty or exaction, of all or a significant part of their assets, for violation of a legal duty or through taxes, in order to transfer them to the property of the State without any compensation. It must be affirmed that it is up to this Chamber to determine, regarding this principle, whether the challenged regulations have confiscatory scope, understood in light of the fact that the tax authority exceeds its power by levying a portion of the property (or a right) of the taxpayer that would be protected as a fundamental right.

It should be noted that the issue involves an exercise of balancing public powers and fundamental rights, the intensity of the exercise of the tax authority over property, since it would have as a limit the principle of non-confiscation. In this sense, progressivity in taxes finds its basis in the need to address the principles of ability to pay (capacidad contributiva) and non-confiscation. What might be confiscatory for some, may not be for another, clearly depending on their ability to pay. Tax justice must have a close link with the principle of reasonableness and proportionality, especially in the matter at hand, where the maxim must be fulfilled that we must all contribute to public expenses, but in accordance with the means of each tax debtor. While it is rightly affirmed that the tax obligation must not exhaust the capacity to generate income and property, it is imperative to also reaffirm that taxes cannot absorb a part of social security benefits, especially when these are covered by international law, even though as an economic benefit from the State they have not entered (or should have entered) the individual's patrimony. In this sense, it must be recognized that the payment of money received by the pensioner is susceptible to being taxed; there is a limit —as indicated supra— on the amount. Thus, as affirmed by the plaintiffs based on the principle of non-confiscation, it cannot be permitted that taxes absorb what they argue is the property of individuals, and which the Chamber understands as the economic benefit received derived from the right to a pension, and which allows concluding that the money that has effectively entered the individual sphere of the beneficiary would be private property that could not be retroactively reached by the challenged regulations. However, the problem lies in the deduction that, in excess (at least up to 5%), has been made on the economic benefit that the State should not have made, which by right corresponds to the pensioners and retirees, especially if that part has been recognized as their right to a pension. In this we refer to the extra 5%, with respect to all the taxes that the pensioner or retiree must pay.

Now then, specifically, the problem of constitutional relevance lies in the fact that with the special, solidarity and redistributive contribution, it is denoted that this is done with staggered deductions made on a gross amount, which then return to the single treasury of the State (pursuant to Article 4 of Law No. 9383, to finance the pension regime and the non-contributory regime of the C.C.S.S.). Added to this is the contribution percentage for pensioners, retirees, and active servers, which is made in accordance with the rule, gradually and proportionally according to the amounts of the salary or pension in question (from 9% to 16%), according to paragraph 2 of Article 11 of Law No. 7302, amended by Law No. 9380. And as previously indicated, these reductions include other taxes, such as the income tax that levies the gross amount. That is, in those cases where the regulations under analysis apply, it clearly produces an effect of stripping the pensioner of the economic benefit, through an exaction that affects a part of their income (up to at least 5%), by the application of taxes to transfer them to the property of the State without any compensation. This Court recognizes that the impact this has on the economic position of the older adult, especially from one moment to the next, is not something easy to assimilate, particularly when the accustomed economic inflow is abruptly reduced by more than 55%, all of which produces a considerable regression in the economic situation of the older adult. It has been alleged that these reductions contravene a margin of dignity and adequacy for the older adult in old age, and that from what has been said supra, upon scrutiny of these norms it must be concluded that by failing to comply with Convention No. 102 of the International Labour Organization, there is a failure in the duty to provide a full pension amount.

There is no doubt for this Court, as stated earlier, that when the State demands that taxpayers pay taxes, this demand must meet certain standards. In this sense, as previously discussed, these are internationally legally binding parameters for the Costa Rican State, which it cannot ignore or attempt to annul, if there is a superior norm that offers greater protection, especially in favor of the human person. With this provision, the State has first recognized the right to a pension of the plaintiffs according to the legal framework it enacts, in which case they have the right to receive an economic benefit as the holder of the right, that is, an amount of the benefit without discrimination as corresponds to them. Similarly, that amount would be subject to certain conditions that the regulatory framework must meet, for which it would be unlawful for the State to deviate from them.

The Chamber understands, from the filing brief of the plaintiffs Ramos Valverde and Pacheco Salazar, as well as the coadjuvants Vargas Aguilar and others, that the challenge is against the special contribution itself, the confiscatory impact on those incomes that diminishes the dignity or adequacy of the economic benefits. On this point, according to official data, it is important to bring up the comparison of the economic benefits offered between the national regimes, insofar as the Hacienda pension regime is compared with other regimes, some without and others with a contribution fund. Furthermore, the Ministry of Labor and Social Security, as well as the National Director of Pensions, seek to demonstrate, based on the table transcribed below, that there are important differences between the non-contributory regime, the basic contributory pension regime (both administered by the Costa Rican Social Security Fund), and the pay-as-you-go or budget-based pension regime, which remains still better positioned, comparatively. The foregoing without forgetting that it depends 90% on the National Budget. This is evidenced in the following manner (visible in the report on folios 3795-3814 of the expediente):

*Average pension amount taking into consideration the 18,700 people who would not be subject to the special solidarity and redistributive contribution.

From the foregoing, it is observed that despite establishing a comparison between a basic regime like that of the Costa Rican Social Security Fund, regarding the pension amount taken as an example, that of plaintiff Ramos Valverde from the Hacienda Regime modified by the challenged legislation, the amounts received still show a better economic position by more than 2.3 times. However, the authorities compare it with the Regime of the Costa Rican Social Security Fund, thereby comparing different systems, one where there is a constituted fund, with its respective contribution mechanisms, fund investments, and reserves, which is not under examination, but evidently, it is not the same as the "pure" pay-as-you-go system based on the National Budget, as the plaintiffs rightly argue and the authorities explain. Although the authorities demonstrate that in the Hacienda Regime the economic benefit of the pensioner is improved, it is a system that operates without a formally constituted fund, which compared to one protected under the basic national scheme covered by the Costa Rican Social Security Fund and other substitute regimes, that argument leaves aside an aspect of real relevance such as the level of salary contributions made into the system for a fund, investment portfolio, as happens with others, like that of the National Teachers' Union, Judicial Branch, among others, which is not being taken into account.

On the other hand, it is illustrated that within the same Hacienda Regime, higher pensions improve the average of those that would not exceed the contribution base of the challenged norm, whose average amount of ₡464,641.20 would still be exceeded by 7.55 times. The comparison uses as benchmarks a universe of pensioners (18,700) below the ten reference salaries against an individual benchmark, a comparison that aims to demonstrate the State's reaction, which must be analyzed in greater depth. Precisely, a special, solidarity and redistributive contribution of pensioners and retirees is designed to produce a significant reduction in income for a small group of retirees, motivated by a context of significant contraction of the national economy, which demanded a review of the pension system and the need to delimit certain pensions. But the foregoing, it is alleged, affects the accustomed economic benefit that was being received by the pensioners and retirees, so it needs to be demonstrated that there is a reasonable and proportional justification regarding the totality of the economic benefit intended to be affected, despite the fact that through this legislation an income is reduced above the limits established in the standards that the country itself committed to with Convention No. 102 of the International Labour Organization.

What must be analyzed from the regulations is the reasonableness of the percentages and the effect they have, especially because the value of the pension falls on the gross item, which means that various coercive exactions operate on the pension, which would exceed the total permissible costs of levying, and it must be questioned whether the violation of the principle of non-confiscation occurs insofar as it is against the right established in the Convention, as it exceeds 50%. In that sense, it would be necessary to determine if in the application, due to the consequences or effects, there would be an unconstitutionality in the technical reasonableness and proportionality. The Chamber considers that all the foregoing produces a significant reduction of that net part of the benefit, after applying the percentages of the corresponding contributions and the contribution amounts they must pay. But, with these other corresponding payments, as this Chamber established supra, all the taxes considered together cannot exceed 50%, such as taxes, rates, contributions, charges, income taxes, and legal deductions, because this would not only violate the principle of community solidarity, but also the constitutional principles of reasonableness and proportionality; additionally, as a parameter, the violation of paragraph 2 of Article 71 of Convention No. 102 of the International Labour Organization.

Regarding the demand to pay more taxes, it must be said that the design of the challenged provisions starts from a fixed parameter composed of ten times the lowest base salary paid in the Public Administration, according to the salary scale of the Public Administration issued by the General Directorate of Civil Service. That is, there is a minimum exempt amount quantified by the legislation, which expands as the set base salary decreases. If the gross amount of the pensioner exceeds that amount, the law orders the application of a staggered and progressive levy contained in the provision.

Then, Article 3 of Law No. 9383 establishes the following:

“a) On the excess of the amount resulting from ten times the lowest base salary paid in the Public Administration, according to the salary scale of the Public Administration issued by the General Directorate of Civil Service and up to twenty-five percent (25%) of said sum, they will contribute with twenty-five percent (25%) of such excess.

• b)On the excess of the previous margin and up to an additional twenty-five percent (25%), they will contribute with thirty-five percent (35%) of such excess.
• c)On the excess of the previous margin and up to an additional twenty-five percent (25%), they will contribute with forty-five percent (45%) of such excess.
• d)On the excess of the previous margin and up to an additional twenty-five percent (25%), they will contribute with fifty-five percent (55%) of such excess.
• e)On the excess of the previous margin and up to an additional twenty-five percent (25%), they will contribute with sixty-five percent (65%).
• f)On the excess of the previous margin, they will contribute with seventy-five percent (75%).” As can be seen, the norm contemplates a cumulative and progressive contribution where the total tax will depend on the amount of the pension that exceeds the different brackets established by the provision (which would maintain a relationship with the ability to pay). As stated supra, the base parameter for this imposition is established in the amount composed of the ten (10) base salaries, subsequently increased by 25%, to finally levy the differences between the pensions that fall within the base parameter and the one above it. In this way, it proceeds according to the gross amount of the concerned party's pension, and it will depend whether the sum is within one bracket or section, and if it exceeds it, it falls into another exaction. Thus, 25%, 35%, 45%, 55%, 65%, and 75% would be applied, respectively, according to each bracket with respect to the differences.

The importance of the previous explanation is because the norm levies an excess over the ten minimum salaries indicated supra, increasing the tax obligation of the levy as the pension amount exceeds the previously defined excess, which means that the higher the amount received, the greater the contribution obligation. The problem with the norm has to do with the cumulative and increased effect it has with this and other taxes of a similar nature (which levy the gross income), since the challenged norm concludes that in no case may the special, solidarity and redistributive contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) with respect to the totality of the gross amount of the pension that rightfully corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) with respect to the totality of the gross amount of the pension, the special contribution shall be readjusted so that the sum is equal to fifty-five percent (55%) with respect to the totality of the gross amount of the pension.” In this way, it establishes a total levy of up to fifty-five percent (55%), which would be exceeding the permitted amount in subparagraph 2) of Article 71 of the Convention of the International Labour Organization, which sets the establishment of pension costs at 50%, with the help of taxes and contributions from the community considered in its totality, not only from workers and pensioners and retirees. This implies that the tax debtor, in this case, the pensioner, would be contributing even more taxes with the income tax, which would imply greater costs and deductions in their case, even a greater sacrifice demanded by society.

For the reasons stated, the majority of this Chamber considers that the action must be granted on this point, as will be recorded in the operative part of the judgment (…)” (The highlighting is not part of the original).

For its part, in ruling No. 2021-11957, issued at 17:00 hrs. on May 25, 2021 —issued, as has been repeatedly stated, regarding what is recorded, among others, in articles 236 and 236 bis of Law No. 9544—, this Chamber, after citing the previous vote No. 2020-19274 (regarding the allegation of confiscation), stated that the burden then imposed on the pensioners of the Judicial Branch “(…) is only confiscatory insofar as it exceeds 50% of the charges that a person must bear on their pension or retirement (…)”.

Additionally, in the recent Ruling No. 2024-6250 issued at 16:30 hrs. on March 6, 2024, this Chamber reaffirmed its position on this specific point and, when referring to the content of ordinance 5 of Law No. 9796 under study —specifically, with respect to the retirees of the National Teachers' Union Regime—, held that although the very fact of contributing with the items in question could not be labeled unconstitutional (given that higher economic benefits were taxed in a staggered manner according to the ability to pay), the truth was that, according to the Chamber's precedents, that same contribution had a limit of 50%, so that remaining 5% did become confiscatory.

Thus, in light of what has been analyzed in this action of unconstitutionality regarding the specific case of the pensioners of the Judicial Branch Regime, this Chamber concludes that the additional 5% percentage with which they must contribute, in accordance with the provisions of Law No. 9796, is certainly confiscatory and, consequently, a violation of their fundamental rights.

C. Regarding the claim of double tax imposition for the same purpose. Coupled with the previous grievance, the plaintiffs argue that the pension amount of the Judicial Branch retirees suffers double taxation, which is improper, given that, in addition to the solidarity contribution, deductions are applied for other concepts, such as the 13% mandatory contribution to the regime and the income tax. They allege that a double tax rate is applied "on the same benefit." This Chamber, in ruling No. 2021-11957, issued at 17:00 hrs. on May 25, 2021, settled this disagreement of the plaintiffs by conducting an analysis —in light of the provisions of Law No. 9544—, of ordinance 236 of the Organic Law of the Judicial Branch, where the deduction of 13% from the pension amount is contemplated, and what is stipulated, concomitantly, in Article 236 bis of that same organic law —regarding the deduction for the special solidarity contribution—. The content and purposes of these norms, with regard to this specific point and grievance, did not undergo a change upon the issuance of the now challenged Law No. 9796. Hence, the reasoning set forth on that occasion by this Constitutional Chamber can be newly and validly used to resolve this part of the present action of unconstitutionality.

On this occasion, this jurisdiction stated the following:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“</span><a name="_Hlk53996222"></a><span style="font-family:'Times New Roman'; font-weight:bold">XLVII. Drafted by Justice Hernández López. The special, solidarity-based, and redistributive contribution and the claim of double taxation for the same purpose.- </span><span style="font-family:'Times New Roman'">The plaintiffs argue that the special, solidarity-based, and redistributive contribution created in favor of the Retirement and Pension Fund of the Judicial Branch implies, for the judicial employee, but also for the judicial retiree or pensioner, a double taxation because in addition to being obligated to continue contributing 13% of their income to the fund, they are now also obligated to</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">contribute between 35% and 55%, which they deem unconstitutional. The Procuraduría General de la República considers that there is no double taxation in this case, since a distinction must be made between the contribution to the fund imposed on all beneficiaries of the Retirement and Pension Regime of the Judicial Branch, and the so-called special, solidarity-based, and redistributive contribution </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">that is imposed only on retirees and pensioners who receive economic benefits exceeding the established ceiling of ten times the base salary of the lowest-paid position in the Judicial Branch; a contribution that is also proportional and progressive, and has a nature distinct from that of the contribution</span><span style="font-family:'Times New Roman'">, which is why it is not considered contrary to the Political Constitution. (…) For the Court, the figure of the special, solidarity-based, and redistributive contribution does not constitutionally configure a case of double taxation, since in its original design (prior to the reform enacted by Law No. 9796) </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">it serves a purpose separate from that pursued by the general contribution imposed on all beneficiaries of the Retirement and Pension Regime of the Judicial Branch to achieve its sustainability and normal operation</span><span style="font-family:'Times New Roman'">. Unlike this general contribution, the Court is clear that the aforementioned rule 236 bis </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">sought to levy the amounts exceeding the maximum retirement or pension ceiling payable by the regime, set by Article 225 of the Ley Orgánica del Poder Judicial at 10 times the base salary of the lowest-paid position in the Judicial Branch</span><span style="font-family:'Times New Roman'">, </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">on the understanding that such excesses occurred in a finite and determinable group of retirements and pensions granted according to the rules of the former regime</span><span style="font-family:'Times New Roman'"> (whether currently being paid or declared but suspended in their enjoyment) and therefore clearly temporary in their application and not supportable with the contribution scheme established for the new design. Thus, the levy constituted in the questioned Article 236 bis to tax the excesses was required, </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">but not to contribute to the support of the normal budgeted expenditures in the new regime</span><span style="font-family:'Times New Roman'">, but rather to avoid the imbalance caused by the Fund's legal duty to cover certain expenditures inherited from the former regime and exorbitant to the new design. Under this criterion, there is therefore no double taxation from the constitutional perspective, since </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">the purpose of the two levies is clearly differentiated</span><span style="font-family:'Times New Roman'">, with the 13 percent contribution being a permanent charge</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">and with the purpose of financially sustaining the fund and ensuring its benefits, while the special and solidarity-based contribution of Article 236 bis </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">is specific and temporary in its very conception</span><span style="font-family:'Times New Roman'"> (at least before the reform enacted by Law 9796) and was aimed at mitigating the economic impact of assuming the burden of retirements and pensions from the former regime, both those currently being paid and those already declared at the time but pending their effective enjoyment by the beneficiaries. </span><span style="font-family:'Times New Roman'; color:#7030a0">(…)</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">In the case under study, the imposed charge has -as has been analyzed- a valid purpose, </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">is aimed at levying an indisputable economic capacity and is progressive in its design</span><span style="font-family:'Times New Roman'">. Furthermore, it only becomes confiscatory insofar as it exceeds 50% of the charges that a person must bear on their pension or retirement, as explained supra.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">In conclusion, the Court considers that Article 236 bis of the Ley Orgánica del Poder Judicial does not configure a case of constitutionally prohibited double taxation (…)” (The highlighting is not part of the original).</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">The foregoing state of affairs </span><span style="font-family:'Times New Roman'; text-decoration:underline">did not change</span><span style="font-family:'Times New Roman'">, in the opinion of this Chamber, with the issuance of Law No. 9796 -and it is understood that the caveats set forth in the transcribed vote regarding the promulgation of this latter regulation were issued solely for clarification to the reader-; hence, the transcribed precedent is fully applicable to this matter. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">In addition to the foregoing, it is worth noting that in recent judgment No. 2024-6250, of 4:30 p.m. on March 6, 2024, this Chamber </span><span style="font-family:'Times New Roman'; text-decoration:underline">also dismissed</span><span style="font-family:'Times New Roman'"> the notion that, through Law No. 9796 -and its specific imposition, in that case, on pensioners under the National Teachers' Regime (Régimen del Magisterio Nacional)-, </span><span style="font-family:'Times New Roman'; text-decoration:underline">the solidarity contribution represented anything beyond a case of double tax imposition.</span><span style="font-family:'Times New Roman'"> On that occasion, the Chamber explained that the act of contributing to the fund, collaborating with the solidarity contribution, and, in turn, paying the income tax -which, specifically, is what the plaintiffs in this proceeding point out-, was not, in itself, injurious to the Right to the Constitution, and it was clarified that such triple payment had already been endorsed by this Chamber -judgments 1999-5236 and 2001-2235-. Furthermore, in this recent judgment, it was stated that these three contributions were not exclusive to the Transitional Pay-As-You-Go Regime (Régimen Transitorio de Reparto), since the rest of the special pension regimes bore similar charges, according to their special regulatory characteristics and criteria. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">Thus, having dismissed the unconstitutionality, in the instant case, of a double or even triple tax imposition to the detriment of the retirees of the Judicial Branch -specifically those whose pension amount exceeds six base salaries of the lowest-paid position in said institution-, this aspect of the action likewise deserves to be dismissed. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">D. Regarding the alleged breach of the principle of non-retroactivity to the detriment and consequently the principle of legal certainty (seguridad jurídica). </span><span style="font-family:'Times New Roman'">The plaintiffs also accuse that the provisions of Law No. 9796 violate the vested rights (derechos adquiridos) of all those judicial officials who contributed and were granted pensions under the guidelines issued by the Pension Fund of the Ley Orgánica del Poder Judicial. Therefore, they affirm that “</span><span style="font-family:'Times New Roman'; font-style:italic">those rights must continue just as they were granted before the promulgation of the law, otherwise, legally granted rights would be violated</span><span style="font-family:'Times New Roman'">”. They indicate that pensions already granted translate into vested rights, and that, by imposition of the law, pensioners are being led to lower income levels. They point out that the studies conducted did not indicate that the levy to be imposed would be retroactive, but only future-oriented. They finally maintain that, f</span><span style="font-family:'Times New Roman'">rom the moment one enters the retirement regime, the worker is protected (not only by the legal and regulatory rules and criteria of the regime itself), but also by the constitutional norms and principles that enshrine the right to retirement, such as, for example, what is established in Article 34 of the Constitution. In conjunction with the foregoing, the plaintiffs consider that the principle of legal certainty is violated, since the variations imposed by the law breach the trust and security of judicial officials.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><a name="_Hlk164863932"></a><span style="font-family:'Times New Roman'">Now, as for this particular grievance, it is pertinent to note that this constitutional body has likewise already issued an opinion, when referring, as has been repeatedly stated in this judgment, to other cases similar to the one now under study. Thus, it is worth noting that in judgment No. 2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber broadly and forcefully explained the reasons why the imposition of the solidarity contribution did not properly breach the provisions of Article 34 of the Magna Carta, i.e., the principle of non-retroactivity of the law. On that occasion, it was expressly stated: </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“</span><span style="font-family:'Times New Roman'; font-weight:bold">XIII.- Regarding the claim of non-retroactivity of the reforms</span><span style="font-family:'Times New Roman'">. In this regard, it should be noted that the Chamber's case law, in a matter related to the issue at hand, resolved the matter without affecting the undoubted power of the legislator to modify or reform laws. The discussion raised by the plaintiffs precisely lies in which legislative measures can be applied to pensioners and retirees as of the legal reform enacted by the challenged norms. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Thus, the Chamber established, in Judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018, that:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'">“XI.- Regarding the alleged violation of the principle of non-retroactivity. The plaintiff accuses injury to the principle of non-retroactivity protected in Article 34 of the Political Constitution, because the challenged norms seek to apply their effects -Law No. 7858- to pensions, without distinguishing the date on which they were granted. Now, before entering to analyze the merits</span><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'">of said claim, it is appropriate to refer to what has been expressed by this Chamber regarding the issue of the application of the principle of non-retroactivity to pensions. In this regard, in judgments No. 2379-96 at 11:06 a.m. on May 17, 1996</span><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'">and No. 2765-97 at 3:03 p.m. on May 20, 1997, previously cited, it was established, in relevant part, the following: </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'">“XI.- REGARDING THE VIOLATION OF THE PRINCIPLE OF NON-RETROACTIVITY. The relationship between the fundamental right to retirement and Article 34 of the Constitution has been delineated by the Chamber, which has expressed that the former takes on different appearances and names depending on whether the official meets certain conditions, which normally occur over time. Thus, the right to retirement first manifests itself under the name and form of 'right of membership in the regime' from the official's entry into the system until the event of fulfilling the necessary requirements for obtaining the benefit occurs. Subsequently, it sheds that guise to become known as a 'right to the current benefit,' once the aforementioned eventuality has occurred (cf. resolution 1147-90 of twelve o'clock on September 21, nineteen ninety). With the foregoing, two things are emphasized: a) that throughout the entire time the fundamental right to retirement is and has always been one and the same, and does not change in its essential characteristics, which remain as an integral part of its composition despite the different modalities it may externally present; b) that it is this core, without the accidents added at the moment of its realization and simply called the constitutional right to retirement, that the Chamber recognizes as a vested right (derecho adquirido) of the plaintiff. Now then, if, as set forth in the second whereas clause (considerando) of this judgment, we accept that one of the essential characteristics of the right to retirement is that it can be limited or conditioned in the terms explained therein, it can be concluded that the inclusion of the right to retirement within the set of vested rights of the plaintiff also included -as a legal possibility- the power for the State to exercise limitations or conditions on said right, because such power, to be exercised by the State, forms an integral part of its own structure and composition. In other words, the fact that the plaintiff is recognized as having a vested right to retirement from their entry into the regime cannot imply a disappearance of the attributes and conditions that form an intrinsic part of it -including, of course, those that may be restrictive for the beneficiary- so that all these characteristics survive as an indeterminate set of presumed or implicit clauses, which are inserted within any regime or system for the realization of the right to retirement and which, for that very reason, are potentially applicable to the plaintiff at any time and as long as they belong to the regime.</span><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'">And they could not invoke Article 34 of the Political Constitution to oppose its application, given that it is not a new regulation but the effective exercise of an implicit power of variation existing from the moment of entry into the regime”.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“In both cases (vested right or consolidated legal situation), the legal system protects </span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'">rendering it intangible</span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'"> the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing an already acquired asset or right from a person's patrimony, or of causing that, if the factual prerequisite had occurred prior to the legal reform, the (beneficial) consequence that the interested party expected from the consolidated legal situation no longer arises. Now, specifically with regard to the latter, it has also been understood that no one has a 'right to the immutability of the legal system,' that is, that the rules never change. Therefore, the constitutional precept does not consist of the fact that, once born into legal life, the rule connecting the fact to the effect cannot be modified or even suppressed by a subsequent norm; what it means is that </span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'">as explained</span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'"> if the conditioning event has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the previous norm from arising. This is so because, it was said, what matters is that the state of affairs the person enjoyed was already defined in terms of its elements and effects, even though these are still being produced or have not even begun to be produced. Thus, what a person has a right to is the consequence, not the rule.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Application to the specific case. In the sub examine, it is feasible to exemplify the above concepts based precisely on the elements of the specific case. Under the rule of Articles 167 to 169 of the Estatuto de Servicio Civil, there existed a legal rule, created by the legislator: in the presence of an incapacitating illness (conditioning fact), the teacher suffering it would have the right to a leave of absence and to the payment of aid equivalent to the entire salary, for the entire period of the incapacity </span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'">which could even be indefinite</span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'"> although subject to annual revalidations, upon medical certification (conditioned effect). This rule disappeared by virtue of the repeal that Law No. 7531 made of those norms, which further ordered that, within the non-extendable period of six months from its effective date, the beneficiaries of the leaves must opt for a disability pension or return to work. Thus, exemplifying </span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'">and, simultaneously, applying</span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'"> the elements of judgment set forth supra, it can be said that:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">The protection of vested rights means, in this case, that despite the elimination of the norms, all amounts received up to that point as aid must be considered non-refundable. To the extent that they had definitively entered the patrimony of the interested parties prior to the legal reform, it would be absurd </span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'">and unconstitutional</span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'"> to pretend that they must be returned, or anything of the sort. And, (sic)</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">The protection of consolidated legal situations implies that, while the interested parties could not claim that the norms in question (and, with them, the rule they created) could never again be the subject of reform or even, as happened, of repeal, they did have the right to expect that, with respect to themselves and all other persons subject to the same state of affairs, the consequence they anticipated would be or is produced. That state of affairs was characterized by the rule that causally linked their factual situation (incapacitating illness) with the effect provided by law (the enjoyment, for an indefinite period, of a leave of absence and the payment of the corresponding pecuniary aid). The fact that the rule has disappeared </span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'">something the legislator has undoubted power to do</span><span style="font-family:'Times New Roman'">&#x2011;</span><span style="font-family:'Times New Roman'"> cannot have the virtue of causing the consequence to which they already had a right to no longer arise for them. This could only occur, ex nunc, for those who, at the date of the legal reform, had not acquired that right”.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Adopting as a frame of reference</span><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'"> the provisions of the cited precedents, the Chamber considers that the challenged regulation is not per se contrary to the principle of non-retroactivity, since it is clear that the legislator has the power to vary the conditions or requirements under which a retirement is granted -the person has not yet consolidated the right-, when it deems it necessary to guarantee the financial sustainability of a specific regime, or when there is a difference between the income received and the payment of current retirements, in protection of the principles governing Social Security, a sort of, in this latter case, a contingency ceiling. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Notwithstanding, and without detracting from the foregoing, it is appropriate to clarify that it would be violative of Article 34 of the Constitution to attempt to apply the effects of the law to the factual situations, conditions, or requirements for obtaining retirements or pensions, to those persons who had already obtained that benefit prior to its entry into force, except in an extraordinary case, as expressed supra. This is because, as established in the aforementioned votes, the retiree has the right to have the conditions and rules under which they obtained their pension respected, that is, that the conditions the law provided for them at the time their legal situation was consolidated be maintained. It is necessary to clarify that the monthly amount of the retirements or current pension that the person receives is not an element that cannot be affected, since the legislator, in exercise of the taxing power (potestad tributaria), may levy taxes on them, as has been done recently, a point on which this Court does not issue any pronouncement, since it will be in the unconstitutionality actions</span><span style="font-family:'Times New Roman'">&#xa0;</span><span style="font-family:'Times New Roman'"> that have been filed on this point and others –see judicial file 2017-001676- where a position will be set on the scope and limits of the taxing power in the matter. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">In light of what was stated above, this Chamber considers that it is necessary to make a conforming interpretation of Law No. 7858, in the sense that it is not violative of the principle of non-retroactivity, as long as it is interpreted that its effects are only applicable to those persons who had obtained the right to retirement </span><span style="font-family:'Times New Roman'; font-weight:bold">after December 28, 1998</span><span style="font-family:'Times New Roman'">, the date on which the cited norm entered into force, after being published in the official newspaper La Gaceta number 251, for the elementary reason that for those who obtained the right to retirement after that date, the rule in force must be applied, that is, the maximum ceiling when the condition established by law is met, which has been duly accredited by the National Accounting Office (Contabilidad Nacional). It is clarified that this Court considers it necessary to dimension the judgment in the sense that this interpretation will take effect from its full publication in the Boletín Judicial, so that in the event that the Public Administration and the ordinary courts reach the conclusion that the challenged norm, the directive, and the resolution are in force, the ceiling will be applied towards the future and not towards the past, so the Administration could not collect any sum that retirees and pensioners have received prior to the date the referred publication is made”. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">To elucidate the problem of constitutional relevance before us, it is essential to define the legal effects that the reforms would have: that is, if they are ex tunc or ex nunc. </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">While the plaintiffs, throughout the libels of interposition of the actions, claim the right to the intangibility of patrimony (which has been addressed in this judgment previously), understood by them as the impossibility of modifying the amounts of the pensions they receive in the present and future, consequently they claim that the monthly retirement or pension benefit cannot be modified; in the opinion of this Chamber, this is not possible, in light of the doctrine of Article 34 of the Constitution, and the jurisprudential interpretation of this Court (except in the case of improvement).</span><span style="font-family:'Times New Roman'"> The case law of the Chamber moves contrary to the plaintiffs' path, reaffirming that the legislator can modify or reform legislative provisions, which raises a problem of effects or consequences of the norms for their addressees, within the respective coordinates of time and space.

As is characteristic of any regulation that fulfills the formal and substantive requirements, they govern from the day they designate, or in the absence thereof, ten days after their publication in La Gaceta (article 129, Constitucional). Therefore, the claim to maintain the validity of an abolished right is not always acceptable, since the jurisprudence of the Chamber affirms that the protection against the retroactivity of norms "does not consist in the idea that a rule of law, once in force, which connects a fact with an effect, cannot be modified or even suppressed by a later norm (for that would be to accept the immutability of law); what it means is that once the conditioning assumption has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the reign of the prior norm from arising […] what is relevant is that the state of affairs enjoyed by the person was already defined as to its elements and its effects, even if these are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule." Thus, what one has a right to are the consequences, and not the norm, especially if it is repealed or modified.

In this way, there is no possibility of claiming the immutability of law, which operates, in the case of pensions, if it finds those foundations in technical-actuarial criteria, in the need to establish a sound financial equilibrium, even, as was affirmed in the precedent cited above that examined the constitutionality of Law No. 7858 (Sentencia No. 2018-19030 of 5:15 p.m. on November 14, 2018), in which this Chamber established—as obiter dictum—that the monthly amounts could indeed be affected through the State's taxing power. In this sense, throughout this judgment, it has been established that the legislator can indeed do so. Although, a norm could not be issued that revoked the pension benefit despite it having been obtained in compliance with the formal and substantive rules of the pension regime (especially for the contributions paid and received into a pension fund), or that conditioned the benefit by aggravating it with requirements that would make it unenforceable for the older adult despite having been legitimately obtained. Even in assumptions prior to obtaining the benefit by consolidated membership in the regime, there must be room here for a degree of protection, in accordance with the principle of legitimate confidence or legitimate expectations, which is recognized when there are previously, clearly established legal relationships that are sustained and which, to be modified, cannot be arbitrary or abusive; one must be allowed to act under the shadow of the prior legislation. There must be some predictability, which would be protected by the principle of legality, and constancy and good governance must be guaranteed. But, in the criterion of the Chamber, the State's power to exercise its taxing power and demand exactions in favor of the State, toward the future, always within the limits given by tax principles (among them principles of legality and hierarchy of norms), as well as reasonableness and proportionality, non-confiscation, and contributory capacity, would not be included in the protection against the retroactivity of norms.

On the other hand, it must be remembered that the right to a pension is not an absolute right; it yields when it is necessary to impose restrictions and limitations, especially those based on the general and solidarity interest, through formal and substantive law. The problem lies in how much that affectation is, especially if it is a reduction or implies a decrease in guarantees contained in international legislation that entails a confiscatory levy, which affects other associated fundamental rights such as economic and social rights. It is, however, a possibility upon which many of the informants agree, which this Chamber has established over the years, that the amount of pensions can be modified for improvement, or be restricted through caps or solidarity contributions. It is also possible to tax this income, which, for the reasons argued by the claimant parties, cannot be considered unconstitutional, except for the limits established internationally, according to what is analyzed herein. If the effects are for the future, it cannot be branded unconstitutional, unless the legislation authorizes the State to tax past income, in which case it becomes a problem of constitutional relevance for contradicting the guarantee of non-retroactivity of norms. In this way, it can be affirmed that the legislation would not be designed to modify acquired rights and consolidated legal situations, nor that of the doctrine of the survival of abolished law, since it is evident that there could be a problem of administrative application of the norms, in which those conditions that were recognized to the pensioners and retirees must be respected, for those pensioners and retirees who acquired the right to a pension as established by the regulations and jurisprudence of this Court. The foregoing, without prejudice, of course, to the obligation to pay taxes in accordance with article 18, Constitucional. This understood in accordance with the recent jurisprudence transcribed.

Furthermore, it should be observed that nothing in the norms of the State's taxing power allows for the understanding that sums received in excess must be reimbursed—retroactively—when they were legitimately determined based on the regulations in force. In this sense, the benefit is affected only toward the future, but not regarding the problem that arises, which is the reduction of the amount, which has been determined as partially legitimate in this judgment, and it is taken into consideration that the limit or cap applied is part of the need to establish a balance in the special pension regime through the special contribution, which is a tax.

Another of the claimants' arguments relates to acquired rights or consolidated legal situations from the perspective of Convention No. 102 of the International Labour Organization. In this sense, they consider that it would be illegitimate, from the viewpoint of this regulation, for them to be taxed again with fiscal charges, parafiscal charges, fund contributions, solidarity contributions, among others, that imply as a final result that the gross amount of the current pension is reduced by 55%. In particular, the Procuraduría General de la República maintains that articles 65.3 and 67.a of the Convention establish that this may be prescribed by national legislation or, in accordance with article 1.1 of the mentioned text, by establishing a maximum for its amount, while respecting, of course, the minimum established in the Convention. In the case of old-age benefits, this would be 40% of the total salary of the ordinary unskilled worker (articles 65, 66, and 67 of the Convention).

However, it is the criterion of this Court that this involves—again—problems of coordinates in time and space, and why not say it, that would give the State room to assume extreme positions. Both the justification of the Procuraduría General de la República, as accepted by the minority of the Chamber, and what the majority of this Chamber understands, would be based on different norms of the Convention that justify the limits differently, because they venture into problems of different orders: the first, that of the minimum level of the benefit that the respective social security system can set, which can be exceeded by the State when the beneficiary or insured person meets the formal and substantive requirements set in national law. The second, the State's obligation to ensure and take measures of good governance in social security regimes, so that it would be obligated to comply with the principles of financial solidarity and the principle of State responsibility, in the interest of the financial equilibrium of the pension regimes (art. 71 of Convention No. 102 of the International Labour Organization). Although both regulatory justifications can impact the level of the benefit, they are not entirely assimilable problems, given that the extension and implication of the measures impact the lives of pensioners differently. It is not the same to authorize a benefit deduction of up to 40% (as suggested) from current payment amounts, as it is to apply measures related to the financial equilibrium of a particular regime, which is what is fundamentally being discussed and must be applied in good faith by the Costa Rican State vis-à-vis an international treaty, when applying a total of insurance contributions charged to the insured that cannot exceed 50% of the total resources destined for their protection. The foregoing is because forms of protection must be established through the principle of legitimate confidence, principles of reasonableness and proportionality, as well as the expectations of rights legitimately formed over years of contributions, because it would cause a considerable regression in economic, social, and cultural rights. Certainly, it is not the same to enter a regime and acquire membership in the pension system, as it is to approach the consolidation of the right, or to have fulfilled the formal and substantive requirements for the formation of the right, in which case, a rationality must be established in the handling of these situations, in justice and equity, especially if one belongs to pension funds. This contrasts with the general obligation to pay taxes and the tax principles of economic or contributory capacity, and of tax progressivity, authorized by the conventional norm.

Convention No. 102 of the International Labour Organization establishes minimum levels of benefits for social security regimes, among which it is indicated that they may not be lower than the prescribed portions of the ordinary current salary paid for simple unskilled work, adding some other rules, such as minimum times; but it is clear that these types of rules should not be interpreted as a license that authorizes the regressivity of human rights, considered from an economic, social, and cultural approach, since for their effective exercise, they require the implementation of legal and economic mechanisms provided by the State. In this sense, with full reason, the Committee on Economic, Social and Cultural Rights of the United Nations establishes a primacy of law and policy of these rights, where a lack of resources cannot serve as a pretext for their non-fulfillment. That would leave open the possibility for the State to unrestrictedly modify certain benefit rights, when it is not lawful for it to keep them in force artificially or barely in a sterile exercise, since affecting one disturbs others, especially when it concerns economic income, to recognize with clear clarity that the regressive measure impacts many other fundamental rights. It must not be forgotten that these rights must have a certain level of exercise (effective and economic), as they enjoy the character of being universal, indivisible, and interdependent, as well as interrelated.

Article 2.1 of the International Covenant on Economic, Social and Cultural Rights, to which our country is a party, establishes that:

"Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures." It is evident that this numeral implies the international obligation of States not to turn back on certain levels of enjoyment of rights that it has already placed at the service of its citizens; in those cases, it is understood that one should not reach such marked extremes as reducing a pension by up to 40% of the gross amount, or 45% of that item; it largely means disturbing and offending the principles, values, and rights contained in the Law of the Constitution.

Article 67.c of Convention No. 102 of the International Labour Organization establishes that:

"With regard to any periodical payment to which this Article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule fixed by the competent public authorities in conformity with prescribed rules; (b) the amount of the benefit may be reduced only to the extent by which the other resources of the family of the beneficiary exceed prescribed appreciable sums fixed by the competent authorities in conformity with prescribed rules; (c) the total of the benefit and the other resources of the family, after deduction of the appreciable sums referred to in subparagraph (b) above, shall be sufficient to secure the family healthy and proper conditions of life, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of the benefits paid for the part in question exceeds by at least 30 per cent the total amount of the benefits which would be obtained by applying the provisions of Article 66 and the following provisions…" Subsection c) of article 67 of Convention No. 102 allows moderating a—so extreme—application of rules that assign a benefit reduced to the minimum to all workers equally, although, the prohibition on reducing this income (subsection b), conditioned on it being above certain parameters established in national legislation, should also be taken into account, which relates to better incomes. And regarding subsection d), it incorporates a global comparative evaluation criterion to determine sufficiency with the indicated percentage with respect to a uniform benefit or the minimum (of article 66). That is to say, the regulation always refers to the possibility of improving the benefit according to the beneficiary's circumstances. The truth is that subsection c) of article 67 of Convention No. 102, cited, refers to one of the essential elements of economic, social, and cultural rights: that the benefits agreed upon by the State, in accordance with subsection a) of numeral 67, already cited, must be provided to ensure the beneficiary a degree of dignity, adequacy, and maintain a relationship that ensures persons a decorous life and economic level (healthy and proper life). It cannot—even though Convention No. 102 apparently allows it—subtract all importance and cease to take into account the contributions, payments, and even the life of the pensioner and retiree. The context of past, present, and future contributions, in the economic, professional, and occupational spheres, is relevant in the criterion of the Chamber, for only these factors would justify a pension at such low levels that would unbalance the contributions referenced to the amount of the pension, as well as the beneficiary's own life. It is clear that disregarding these conditions would reveal a contempt of which the majority of this Court could not be a participant, insofar as it strikes at conscience, justice, and equity, values that must be present in all State conduct.

Article 9 of the Protocol of San Salvador establishes that:

"1. Everyone shall have the right to social security protecting him from the consequences of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decorous existence. In the event of the death of a beneficiary, social security benefits shall be applied to his dependents" (the emphasis is not in the original).

Likewise, it is important to bring up some other norms of interest, such as numerals 3.j) and 45.b) of the Charter of the Organization of American States, which, as for the latter, establishes that:

"Work is a right and a social duty; it gives dignity to the one who performs it, and it should be performed under conditions, including a system of fair wages, that ensure life, health, and a decent standard of living for the worker and his family, both during his working years and in his old age, or when any circumstance deprives him of the possibility of working" (the emphasis is not in the original).

And, article 25 of the Universal Declaration of Human Rights, which reads:

"1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control" (the emphasis is not in the original).

In this sense, it must be taken into account that there is a formally pre-established legal relationship, sustained over decades (that is, before the pension as well as after), which, if varied, cannot be done utilizing the State's power of imperium in extremis, without exercising the principles of reasonableness and proportionality, taking into account the dignity of the older adult and the need for adequacy of all the economic, social, and cultural rights of older adults. In the case before us, the claimants have reached the formal and substantive conditions to retire, the same that have been the object of formal recognition by the State, and have been the foundation for them having obtained the corresponding economic benefits. It also carries weight that some have been established, for the most part, for a very long time, as happens with the claimants. In the criterion of the majority, it is contrary to the doctrine of the protective principles of human rights to consider that the economic benefit of pensions can simply be modified by up to 40% of the gross amount, because it produces a significant problem of constitutional and conventional relevance, which would be injurious to the principles of the prohibition of arbitrariness and the legitimate confidence of the State, among others. It must be taken into account that the same International Labour Conference, 76th Session 1989, titled "The protection of old age by social security, general study of the Committee of Experts on the Application of Conventions and Recommendations," cited by the minority, clarifies with good judgment that:

"139. It should be remembered that the provisions of the instruments considered do not seek to impose upon States a determined method for calculating the amount of the benefits provided for by national legislation; these remain free to adopt their own rules and methods of calculation to fix the amount of the benefits paid within the framework of their national systems, provided that the result of their calculations satisfies the requirements provided for by the instruments concerning the level of the benefits. The three formulas invoked, as well as the parameters they use, such as the 'wage of a skilled male worker' and the 'wage of an ordinary adult male unskilled worker' have been established solely for the purpose of comparing national situations and the requirements of the Conventions. Consequently, and contrary to what certain governments appear to believe, any State for which these Conventions are in force may use one or another of these formulas for the purposes of international comparison, without thereby having to introduce them into its national legislation or practice." Coupled with the above, it is worth noting the advancement of international human rights law related to the Inter-American Convention on the Protecting the Human Rights of Older Persons. It could not be sustained that the legislator can demand a reduction of pensions to such a degree (40%) for the financing of benefits, because that obligation would be regulated in article 71 of Convention No. 102 of the International Labour Organization, which would surely compromise other international obligations, such as the observance in good faith of international obligations, especially regarding human rights, and with which economic benefits are linked to other fundamental rights, such as the adequacy of the pensioner and retiree regarding housing, food, clothing, health, and others equally important.

Article 71 of Convention No. 102 of the International Labour Organization regulates the manner in which countries can approach the financing of social security benefits, among them, pensions and retirements. All of which can be done with substantive tax principles, because it is done in accordance with progressivity in tax matters and the contributory capacity of the pensioner, within the limits established by that norm of the Convention. According to national practices, there are different systems in use, whether through tripartite contributions with contributions from the State, employer, and employee as in Costa Rica, or employer and the State, or the insured and the employers; evidently, it is a topic developed according to national realities. But evidently, due to the placement of that provision in the treaty, it contains common rules related to how national legislation should address the financing contributions for the social security covered by the Convention, which would clearly bind the State as to the way it may demand that financing from employees. The truth is that a system in which, for example, only the insured are required to finance these social security systems would conflict with subsections 1) and 2) of article 71 of Convention No. 102.

Additionally, if the retiree or pensioner must be required to assume certain direct and indirect costs associated with the economic benefit they receive for the right to a pension or retirement, this Constitutional Court must prefer only that provision which least harms the benefit rights, and all other rights associated with them. It is worth noting that this argument is illustrated by the Inter-American Convention on the Protection of the Human Rights of Older Persons, which precisely elevates older adults to a special category of international protection, to which the country must commit before the concert of Nations. For all these reasons, in light of the challenged laws, when the amount of the deduction from the pension amount exceeds 50%, its unconstitutionality lies in the excessiveness of that application, according to the reasons explained supra.

It is clear that there also cannot be an interpretation to the detriment of salaried workers, laborers, pensioners, and retirees, especially for those that Convention No. 102, of the I.L.O., classifies as the most modest, as well as intermediate amounts not subject to the State's taxing power discussed in this judgment, because those who are starting out are not in the same situation as those who have contributed considerably, or those who already enjoy the right, in which case, concluding as the Attorney General's Office suggests that pension benefits could be reduced by up to 40% of the total ordinary unskilled worker's salary would be a problem of considerable constitutional and conventional relevance for these benefits. Even for those closer to a pension, the need to consider forms of protection could be affirmed. Hence, there would be no doubt that such drastic legislative measures should be justified in duly supported actuarial studies, which merit strict scrutiny by the Constitutional Chamber. But, furthermore, reducing the benefit to such a degree would be beyond all discussion in the case of current pensioners and retirees, since a special rule exists that restricts the State's taxing power; and, even admitting doubt, the most favorable rule should be applied, in accordance with the protective principles of Human Rights (paragraph 2, article 71, of Convention No. 102, of the International Labour Organization). In any event, it must be concluded, however, that complying with the foregoing, higher economic benefits remain susceptible to being taxed, according to their ability to pay, but only up to the limit of 50% of the gross pension amount, as indicated supra (…)" (The highlighting is not part of the original).

In judgment No. 2021-11957, at 5:00 p.m. on May 25, 2021, this constitutional body had the opportunity to rule again on this point, as the plaintiffs also alleged that the reform made to articles 236 and 236 bis of the Ley Orgánica del Poder Judicial through Law No. 9544, and the deductions that would henceforth be made from the gross pension amount of the pensioners of this Branch of the Republic –including those relating to the special and solidarity contribution–, represented a violation of constitutional article 34. This precise point of the action was dismissed by the Chamber, under the following order of considerations:

"LII.- Drafted by Justice Hernández López. Regarding the acquired rights and consolidated legal situations of judicial retirees and pensioners in relation to the special, solidarity, and redistributive contribution. Some plaintiffs allege that the special, solidarity, and redistributive contribution also constitutes an infringement of article 34 of the Political Constitution. They assert that, in accordance with the analysis of the constituent process, acquired patrimonial rights or consolidated legal situations, by virtue of the application of a law in force, cannot be infringed by a subsequent law because the consolidated legal situation has become included within the person's patrimony, and touching it is to breach the constitutional principle of patrimonial intangibility enshrined in article 45 of the Political Constitution. In view of the foregoing, they allege that it is precisely that constitutional prohibition that has been breached in Law number 9544 because its norms affect consolidated legal situations, to the detriment of the retirees and pensioners of the Judicial Branch, of their acquired patrimonial rights (pensions and retirements in the course of payment or previously declared) and consolidated legal situations in the form of pension and retirement benefits with constitutional protection under articles 73 and 74. Another sector of plaintiffs assert that acquired rights and consolidated legal situations are also infringed for those active servants who, for many years, have been contributing to the Régimen de Jubilaciones y Pensiones del Poder Judicial and now, when they were closer to retiring, the rules of the game are abruptly changed to the extreme that, to obtain the right to retirement, they will now have to work many more years, reach a higher age, and in return receive a lower retirement benefit. The plaintiffs also state that the introduction of this new item to be deducted from the pensions and retirements of judicial servants implies a novel change of conditions that, they claim, causes the net amount to be received by the beneficiaries to be considerably reduced, without taking into account that these are persons in a condition of vulnerability. (…)

LIV. Justice Hernández López continues drafting. In response to the plaintiffs' argument, the Chamber considers that no weighty legal criteria have been provided that make it necessary to reconsider its extensive jurisprudence in which it has held that there is no impact on Constitutional article 34 with the establishment of special contributions such as the one created in law number 9544. As the Attorney General's Office rightly maintains, law 9544 is not eliminating the right to retirement or pension for persons for whom it has already been declared and who are enjoying it, and according to the settled jurisprudence, it cannot be said that these persons have an acquired right to the amount of the retirement benefit they are receiving. On this point, the Court has been conclusive that there is no right for the benefit deriving from the right to a pension to be for a specific amount (see in this regard the recent judgment 2020-19274 itself). Neither is it a matter of the regulatory norms of the retirement system being petrified because the Chamber has also admitted that it is valid that, as necessary and always complying with respect for fundamental rights, the modifications necessary to adjust the system be made. Thus, it is not considered that the mere fact that the obligation to pay a special, solidarity, and redistributive contribution in this case was decreed is harming any acquired right of the retirees or pensioners in the terms they allege. Neither are the legal situations harmed for those persons for whom the right has not yet been declared, because it must be remembered that the so-called right of belonging that this Court has jurisprudentially identified gives rise in favor of the contributors to a mere expectation of obtaining the right to retirement, since they have not generated consolidated situations or acquired rights at the moment the new law enters into force, so the law enters to regulate said situation in the state in which it finds itself, it being clear then that the norm (constitutional art. 34) refers to subjective legal situations already consolidated, not to those that constitute mere expectations, since these, the right not having been perfected, are indisputably subject to the future regulations that the law introduces. Consequently, with regard to this point, the action is declared without merit (…)" (The highlighting is not part of the original).

For its part, in judgment No. 2024-6250, at 4:30 p.m. on March 6, 2024, this Chamber, in accordance with the provisions of Law No. 9796 and its particular application to the retirees of the Magisterio Nacional regime, ruled out the commission of an infringement of the principles of non-retroactivity and legal certainty. This time, the Chamber reiterated that the figure of the special solidarity contribution was not unconstitutional, as well as the establishment of said payments to be assumed by pensioners with more onerous amounts that impact the public treasury, provided it was understood that these deductions would be made for the future and not to the detriment of amounts already received (with the exception of those situations that had to be subjected to a lesividad process). In the same order of considerations, on this occasion, this jurisdiction –referencing, in turn, what was ordered in judgment No. 1999-5236–, indicated that it was not being obliged to make contributions on moneys already received as pension and that, towards the future, the rules were different, and that the amount of the contribution –which sought to compensate the imbalances of the past and guarantee the survival of the system–, in no way affected acquired rights.

In addition to the foregoing, in this judgment No. 2024-6250, the Chamber was clear in stating that nothing opposes, within the constitutional framework, the legislator introducing reforms to the social security system and regulating or modifying, for the future, the normative elements that legal operators must take into account to recognize the amount of the pension in the basic substitutive systems of the disability, old age, and death system. It was affirmed, then, that the legislator has a margin of discretion that allows it to validly introduce the reforms that, according to economic needs, social conveniences, and the evolution of the times, it deems necessary and pertinent to ultimately guarantee the right to a pension. In other words, on this occasion, the Chamber held that, together with the right to retirement, there was, in turn, the power of the State to regulate the necessary conditions in order to guarantee the permanence and payment of said benefits, but also long-term fiscal sustainability without harming the national community; all of which could in no way translate into a violation of the principle of non-retroactivity to the detriment or of the principle of legal certainty.

As can be clearly observed, the Chamber has been of the view that the imposition of the contributions under analysis on retirees, whether from the Judicial Branch or other regimes, does not result in a breach of article 34 of the Magna Carta, given that, although there is a right to a pension, one cannot concomitantly speak of a right to a fixed amount thereof, which may be subjected to limitations and restrictions for the future –such as those examined in this process–, provided its essential content is respected and amounts already received are not affected. Under that perspective, and lacking sufficient reasons to vary the criterion established by the Chamber in its jurisprudence for these types of issues, the appropriate course is to dismiss this point of the action.

E. Regarding the alleged violation of the principle of equality. The plaintiffs state that Judicial Branch officials contribute 13.5% of their salary for a pension, while the rest of the population contributes 3.8% and "retirees continue with a similar contribution that is equally disparate in relation to the rest of the pension regimes." They maintain that the Judicial Branch pension regime is self-sufficient and, therefore, finds itself in an unequal situation compared to the rest of the pension regimes. They assert that the reform specifically affects one group (Judicial Branch retirees), over any other pension regime, as the former group's pension amount is progressively and rapidly reduced by virtue of the special contributions and other deductions applied to them (CCSS insurance, taxes). They explain that equal legal treatment must be given to those who find themselves in the same legal position or category and indicate that "those placed in different positions, situations, or categories must receive different legal treatment." From the foregoing, they assert, it follows that not all legal treatment must be uniform, as, on the contrary, there may be reasons that justify the legal system differentiating in the treatment of persons, whether natural or legal.

Additionally, they set forth that two elements exist to determine whether or not the principle of equality is violated, first: the comparison parameter that makes it possible to establish that an identical situation exists between two or more persons and that, therefore, discriminatory treatment devoid of any objective and reasonable justification occurs, and second: the reasonableness of the differentiation, "thereby establishing the principle of reasonableness as a parameter of constitutionality." They refer to the principle of constitutional supremacy and the sub-principle of reasonableness. They assert that, following this principle, laws must adjust to the constitutional sense formed by the motives taken into account by the constituent, by the proposed ends, by the fundamental legal values, and by the provided means. Thus, then, when the jurist locates a norm that is not in accordance with constitutional principles, it is clear that they must make the judgment on its reasonableness in order to determine its irregularity or not with the Magna Carta according to the demands of the principle of constitutional supremacy. They allege that, being clear that the principle of reasonableness has constitutional rank and cannot be exempt from analysis in every State decision or law formation, it must be understood, then, that Law No. 9796 flagrantly, directly, and grossly assaults said principle.

They maintain that the relationship between the principle of reasonableness and the principle of equality poses as an essential problem the discernment of a normative decision and how it would allow unequal treatment to be reasonable. They indicate that the foundation of the questioned law is inconsistent and disproportionately burdensome for the judicial retiree sector.

They also mention that, for the differentiation to be constitutionally legitimate, it is not enough that the end pursued through it is legitimate; it is also essential that the legal consequences resulting from such a distinction be adequate and proportionate to that end, so that the relationship between the measure adopted, the result produced, and the end sought by the legislator surpasses the proportionality test in the constitutional sphere, avoiding especially burdensome or excessive results. They maintain that, precisely, the differentiation measure contained in the law is burdensome and excessive, given that the subjects comprised by it are considerably dissimilar; hence, the effects result in disproportionate in the strict sense and contrary to the Political Constitution.

For the purpose of resolving this point of the action, it is necessary to begin by clarifying that, on repeated occasions, this Constitutional Chamber has indicated that the content of the principle of equality stated in article 33 of the Political Constitution prohibits making differences between two or more persons who find themselves in the same legal situation or in identical conditions, without being able to pretend equal treatment when the conditions or circumstances are unequal. In principle, equal treatment is granted to equal situations, and different treatment is possible for different personal situations and categories. Likewise, this jurisdiction has indicated that, to determine if a distinction is really justified, one must analyze whether the motive that produces it is reasonable, that is, whether, considering the particular circumstances of the case, diverse treatment is justified.

In addition to the foregoing, this constitutional body has stated that, in those cases where the harm of article 33 of the Political Constitution is claimed, it is not sufficient for the appealing party to assert or invoke that different treatment has occurred to consider the breach of the constitutional norm to be proven, since whoever alleges the violation of this principle is obliged to provide ab initio sufficient elements that suggest –with a reasonable degree of probability–, that an unjustified and differentiated treatment of equal situations has occurred unjustifiably. As has been established by this Chamber, it is not enough for the plaintiff to simply assert that distinct treatment has occurred in a given case to consider that breach demonstrated. On the contrary, whoever alleges the violation is obliged to provide elements that allow a full comparison between the subjects treated differently –see, in this regard, what is ordered, among others, in judgments No. 2023-14335, at 9:30 a.m. on June 16, 2023, and No. 2024-2501, at 9:15 a.m. on February 2, 2024-.

In the present matter, the plaintiffs omitted to make a clear, precise, and compelling exposition of how, in their view, the content of the challenged regulations –which is solely Law No. 9796–, violates the principle of equality for Judicial Branch retirees, thus making it impossible for this Court to conduct the corresponding substantive analysis. Note that the plaintiffs, in the first place, did not provide the case record with a precise comparison parameter that allows this jurisdiction to carry out the analysis of interest; on the contrary, in the filing brief, they limited themselves to mentioning that judicial officials contribute 13.5% and the "rest of the population," 3.8%; the latter aspect, moreover, is not even regulated in the law under study. They also indicate that the reform made through Law No. 9796 affects Judicial Branch retirees over "any other regime," by virtue of the progressive and accelerated reduction of the pension amount; but, they do not specify or clarify which other regime or regimes they refer to, or how that allegedly differentiated and unreasonable treatment specifically takes place. The plaintiffs insist on making abstract assessments referring to "the rest of the regimes," without explaining, as stated, in what way the violation they claim presumably occurs.

In the same order of considerations, it must be noted that, in the writ filing this action, specifically, in the section where the violation of constitutional article 33 is claimed, the interested parties make a lengthy presentation and explanation regarding the content of this principle and even refer to its relationship with the principles of constitutional supremacy, reasonableness, and proportionality; however, they do not stop, as stated supra, to explain how the challenged articles of Law No. 9796 generate the alleged infringement. In particular, the interested parties limited themselves to maintaining that the law in question flagrantly, directly, and grossly assaults the principle of reasonableness and that it, in turn, "is inconsistent and disproportionately burdensome for the judicial retiree sector." In essence, the plaintiffs invoked the violation of constitutional article 33 without offering any comparison parameter or element of judgment, as was required for this type of case.

Now, despite what was said supra, and even though the plaintiffs may not have carried out the necessary exercise and development that is noted, it is appropriate to point out, at this point, that one could not speak of a violation of the principle of equality insofar as the special solidarity contribution (core object of this constitutional process), was imposed on various pension regimes; that is, as well explained by the Attorney General's Office of the Republic in its report, on different regimes, with equally diverse benefits and conditions, so that, consequently, there is no possible comparison to make (in terms of equality of conditions), that would allow one to validate a violation of the principle of equality.

Inequality, as was well explained above, could only be invoked when unreasonable and disproportionate differentiations occur or are produced under identical conditions, which, as stated, does not occur based on the foregoing assumptions. Indeed, note that the plaintiffs themselves, in the writ filing this matter, agree with this last statement in maintaining that "those placed in different positions, situations, or categories must receive different legal treatment." Furthermore, it was the interested parties themselves who maintained that the subjects covered by the law *“are considerably dissimilar.”* In addition to the foregoing, it must be taken into account that this Court, in the already reiterated judgment No. 2021-11957, of 17:00 hrs. on 25 May 2021, dismissed the grievance regarding the alleged violation of the principle of equality claimed by the plaintiffs, when making a comparison between the pension regime of the Judicial Branch and the pension regime of the CCSS, on the occasion, in turn, of the provisions of Law No. 9544. The foregoing, upon explaining, essentially, that they are two totally different regimes. On that occasion, this specialized constitutional jurisdiction ordered the following:

“**XXIX.- Drafted by Judge Hernández López. On the principles of equality and unity of social security and the provisions of Chapter I “Benefits” of Law 9544.** The plaintiffs claim a violation of the principle of equality and unity of social security in relation to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund and affirm that, despite the fact that part of the intention with the reform introduced by Law 9544 was for the Judicial Branch Retirement and Pension Regime to be equalized or, at least, brought as close as possible to that regime, what was actually done was to considerably distance judicial servants from the system of the Costa Rican Social Security Fund and from any other existing social security regime in the country. They point out that with the reform introduced by Law 9544, Judicial Branch workers end up paying additional amounts in at least 3 items that workers in the country who are affiliated with the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund do not have. This is the payment by Judicial Branch retirees of: **1)** 5 per 1000 for administrative expenses that must be paid to the Fund's Administrative Board and which, in principle, would represent approximately 0.41%, borne by active workers as well as by retirees and pensioners; an amount that was not paid before because the administration of the Fund was carried out by the Superior Council of the Judicial Branch and the Full Court, as part of their legally assigned functions; **2)** 13% contribution to the Judicial Branch Retirement and Pension Regime, which would represent a contribution made by active servants, retirees, and pensioners. In this case, the contribution difference is much higher for affiliates of the Judicial Branch Regime, despite the fact that both categories -Judicial Branch Regime and IVM Regime- have the right to bear the same charges; **3)** 5% contribution for health insurance that will be paid by retirees or pensioners, while pensioners under the IVM regime do not contribute for this item.

The interested parties argue that the sum of the previous 3 items would imply that when 82% of the gross retirement amount is reduced, the latter would finally remain at a real amount of 66.83%; in contrast, in the case of workers affiliated with the CCSS Disability, Old Age, and Death Regime, they allege that although it is true that the basic pension amount oscillates between 43% and 52.5% as the gross pension amount, it is also true that this regime has 2 additional incentives that are added to that basic amount: a) 0.0833% for each additional month contributed starting from the 240th monthly installment, and b) the postponement benefit, which is 2.9326% for women and 2.7993% for men. Thus, they indicate that for workers affiliated with the CCSS Disability, Old Age, and Death Regime (RIVM), in the case of a woman retiring at age 65 with 35 years of service in the RIVM, the basic pension amount would range between 60.9266% and 70.4266%, and in the case of a man with those conditions, it would be between 60.7933% and 70.2933%, and, as they affirm, when contrasting these percentages with the basic amount of judicial servants of 66.83%, it is observed that persons affiliated with the Disability, Old Age, and Death Regime would be in a better situation. For this reason, they consider it more than evident that, faced with these data, far from having equalized both regimes, what was actually done was to place affiliates of the Judicial Branch Regime in a situation of disadvantage compared to those belonging to the CCSS regime and, with this, they consider that the right to equality and the principle of unity of social security are harmed. (…)

**XXXI.- Drafting continued by Judge Hernández López.** (…) This Chamber recalls that the content of the principle of equality established in Article 33 of the Political Constitution means that it is forbidden to make differences between two or more persons who are in the same legal situation or in identical conditions, without equal treatment being possible when the conditions or circumstances are unequal, agreeing, in principle, to equal treatment for equal situations and making different treatment possible for different personal situations and categories. It has also been indicated that the requirement of equality does not delegitimize differentiated treatment, but to determine if a distinction is really justified, one must analyze if the reason that produces it is reasonable, that is, if, considering the particular circumstances of the case, different treatment is justified (see in this regard judgment No. **5061-94** of 17 hours 34 minutes on 6 September 1994). Hence, it is not necessary in all cases to give equal treatment regardless of the possible differentiating elements of legal relevance that may exist; or what is the same, not all inequality necessarily constitutes discrimination. Equality is only harmed when an inequality is devoid of an objective and reasonable justification, which requires an assessment of its purpose and effects, in such a way that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. All that has been expressed means that equality before the law cannot imply material equality or real and effective economic equality (see judgment No. 1770-94 of 9 hours 18 minutes on 15 April 1994).

Based on what has been said, in the Chamber's opinion, the appellants are not right regarding this claim, first because **there is no probative evidence that the legislator's intention was directed at homogenizing the Judicial Branch Retirement and Pension Regime with the CCSS Disability, Old Age, and Death Regime, which is totally different in its nature, in the number of contributors, employer contributions, worker beneficiaries, etc., and because—even if that were true—the final result of the legislator is clear regarding its will that there be an exclusive regime for Judicial Branch workers**, which is consistent with the inclination that emerges from the plaintiffs to keep their regime in force and protect it, as well as with the vocation of the superior authorities of the Judicial Branch and the IICE's own technical studies, to promote the necessary conditions for the Judicial Branch Retirement and Pension Regime to continue functioning and be robust and solvent. **Now, it is clear to this Court that this decision to maintain a special retirement regime, independent and different from the basic one, entails an associated cost and originates consequences that must be assumed by its affiliates, which, by the mere fact of being different, do not necessarily imply discrimination, a violation of the principle of equality, or of the principle of unity of social security.** From this perspective, the establishment of different contribution amounts and charges for the regimes, obligations or not to continue contributing after the right to retirement has been acquired, and diverse conditions for granting the right to a person, **is the result of the need to take into account the particularities and plurality of factors that have to do with the working conditions and the configuration of the group of participants in the fund** (or the disparity in employer contributions), as well as with the benefits intended to be obtained in retirement, or in response to the social and economic policies that may intervene at a given moment. On this matter, **the Chamber considers that, if the primary purpose of the constituent was to maintain social insurances to strengthen social security, there is no reason to question the existence of a plurality of regimes, provided that, as the Attorney General's Office indicated, equality criteria are met regarding state contributions. In this way, it is constitutionally acceptable that there is a difference between the pension regime of the Costa Rican Social Security Fund and that of the Judicial Branch, because their promulgation responds to different needs and conditions that make a simple comparison in terms of deductions, worker contributions, and benefit profiles improper, without also weighing the differences between the number of contributors, caps, coverage of acquired rights, and other conditions that make them different.** It is also worth adding that it is public and notorious, having been publicly reported by the authorities of that institution themselves, that the Costa Rican Social Security Fund's pension regime presents significant threats to its financial stability and that, in response to this, changes in eligibility requirements and the benefit profile are being considered so that also from this standpoint, the comparison proposed by the plaintiffs loses weight and relevance to serve as support for a declaration of unconstitutionality due to inequality, as requested. Thus, the Chamber does not consider that Law 9544 has violated the principles of equality (…)” (The highlighting is not part of the original).

For its part and, in line with the foregoing, in the recent judgment No. 2024-6250 of 16:30 hrs. on 6 March 2024, through which the constitutionality of Law No. 9796 was analyzed—particularly for the case of National Education pensioners—, this Chamber stated that the principle of equality could not be considered violated, since the regulation of interest—which precisely regulates matters concerning the special and solidarity contribution—<u>was applicable to all pension regimes</u>, that is, to those contemplated in the Framework Law for the Special Contribution of Pension Regimes, the General Pension Regime Charged to the National Budget, the National Education regime, and the special regime of the Judicial Branch. Likewise, on this occasion, it was clarified that, in any case, it was not correct to make comparisons between the various special pension regimes, since <u>these respond to different grouping and regulation criteria</u>; such that the solutions adopted by the legislator for each specific case <u>could be validly different for each of those groups</u>.

In addition to the foregoing, it is worth highlighting that, according to the terms of the provisions of Law No. 9796, in particular, what is indicated in Articles 4 subsection b) and 7—which, in turn, reformed Article 236 bis of the Organic Law of the Judicial Branch—, <u>all Judicial Branch retirees</u> whose pension amount exceeds six base salaries of the lowest paid position in said institution will be imposed the payment of the solidarity contribution in question. In turn, according to what is stipulated in said articles, pensioners of this regime must contribute in a staggered and progressive manner, according to the specific amount they receive for that concept. Consequently, it could not be argued that, among retirees of the Judicial Branch regime who are in identical conditions—e.g., who receive a certain pension amount locatable on a specific scale according to the provisions of Article 236 bis of the Organic Law of the Judicial Branch—, arbitrary and unjustified differentiations are carried out; a plane where one could then speak of a violation of the principle of equality. However, as stated, this state of affairs also does not occur according to the study carried out. A similar argument was made by the Chamber when issuing the criterion set forth in judgment No. 2024-6250, of 16:30 hrs. on 6 March 2024, under the understanding that, within the framework of the National Education pension regime, all retirees—starting from the new cap that was established in accordance with Law No. 9796—must comply with the payment of the solidarity contribution with the same purpose, which is to guarantee the sustainability of the pensions. Furthermore, on that occasion, it was indicated that, as these are progressive scales—which equally occurs for the case of Judicial Branch retirees, as has already been explained—, the principle of equality among the different income levels of each retired person is also respected. All of the foregoing led this Court to conclude that, within the framework of the National Education regime, all retirees must, then, comply with similar obligations, as the distinctions cannot be branded as hateful or discriminatory, since they are based on the income of each one.

Thus, this Constitutional Court considers that there is no merit whatsoever in accepting this unconstitutionality action regarding this allegation.

**F. On the alleged violation of the principle of reasonableness and proportionality.** On the other hand, the plaintiffs argue that the reforms made based on the provisions of Law No. 9796 become unreasonable and disproportionate, insofar as they end up imposing deductions on the judicial retiree from the amount of their pension of up to 55%.

Upon review of the foregoing, this Chamber does not consider that this particular aspect of the process can be assessed on the merits, insofar as the claim of the interested parties <u>lacks substantiation</u>, having simply “stated” the grievance to such principles, <u>concomitantly omitting to carry out an analysis of the essential elements that serve as parameters of reasonableness</u> (necessity, suitability, and proportionality in the strict sense), with respect to the norms whose constitutionality is challenged, in order to demonstrate, consequently, that these do not meet that triple condition. The foregoing aspect, as stated, is an essential and determining requirement for this constitutional jurisdiction to issue a pronouncement on the matter. Note that, in this regard, this Chamber, in judgment 2014-1584 of 16:01 hrs. on 5 February 2014—reiterated, among others, by judgments numbers 2022-374 and 2024-4629—, indicated the following on the matter.

“**C.- On the principle of reasonableness and proportionality.** The plaintiff association considers that Article 32 bis of the Commercial Code lacks objective criteria, and that there is no judgment on the necessity and utility of the purpose pursued; although it justified the previous violations, already cleared by this Court, it did not do so regarding the breaches concerning the violation of this principle. **It is not enough to state the breach of the principle of reasonableness; rather, it has the obligation to provide the reasons why it considers that these parameters do not exist.** In this sense, this tribunal notes that **in judgment No. 0523-99, of 14:00 on 7 July 1999, this Tribunal ruled as follows on this requirement:** «To undertake an examination of the reasonableness of a norm, the Constitutional Tribunal requires that the party provide proof or at least elements of judgment on which to base its argumentation, and the same procedural burden falls on whoever rebuts the arguments of the action, and the failure to meet these requirements makes the allegations of unconstitutionality unacceptable. **The foregoing, because it is not possible to carry out an analysis of 'reasonableness' without the existence of a coherent argumentative line that is evidentiarily supported.** This, of course, when it is not a case whose 'unreasonableness' is evident and manifest» (…)” (The highlighting is not part of the original).

From the study of the action, as stated, it is noted that the plaintiff party not only failed to clearly and concisely indicate the reasons that lead them to conclude that the challenged norms are unreasonable, but also failed to perform the reasonableness test required in these cases, nor does it provide any evidence that allows reaching that conclusion. Furthermore, the present matter does not present the characteristics of a situation of evident and manifest unreasonableness, which is also easily perceptible.

In any case, it should be noted that an argument <u>similar</u> to the one now raised by the plaintiffs was addressed and dismissed by this Chamber in Judgment No. 2021-11957, of 17:00 hrs. on 25 May 2021. On this occasion, the following was expressly recorded:

“**XLVIII. Drafted by Judge Araya García. On the claim for lack of reasonableness and proportionality of the special, solidarity, and redistributive contribution established in Article 236 bis of the Organic Law of the Judicial Branch.-** The plaintiffs claim that the special, solidarity, and redistributive contribution harms the principles of reasonableness and proportionality because it widely affects the sums that Judicial Branch Retirement and Pension Regime retirees finally receive, who see their payments reduced not only by the 13 percent contribution to the Fund **but by percentages of 35 to 55 percent on the excess amounts, without there being any reason or justification for this** and only with the purpose of preventing people who earned their right to receive a high pension from receiving such sums that are considered luxurious without being so in any way. (…)

**L.- Drafted by Judge Araya García.** To address this claim, the Tribunal refers to what was said in previous recitals on the nature and purpose of the special, solidarity, and redistributive contribution, according to the original design of Article 236 bis of the Organic Law of the Judicial Branch, and recalls the fact that it is a charge for those high retirement and pension payments to the new system put into operation with the reform. It also especially emphasizes that regarding the maximum cap on deductions that the plaintiffs challenge as a key element for the lack of reasonableness and proportionality in the special contribution, such issue was defined supra, by majority, in line with what was said in the aforementioned judgment number 2020-19274, to the effect that the percentage of legal deductions—in cases where they constitutionally proceed—may not exceed 50 percent of the gross pension amount. In addition to the foregoing, and in view of the fact that the claim against the reasonableness and proportionality of the special contribution uses the concept of the “last salary” or the “income level at the time of retirement” as a parameter, what was stated by this Tribunal regarding the insufficiency of the actions filed in constitutionally justifying the choice of such a parameter to contrast the deductions must be reaffirmed.

**LI.- Drafted by Judge Araya García.** Having pointed out the foregoing, **it is therefore appropriate to analyze whether the structure of the deductions in itself generates any unconstitutionality-scope unreasonableness or disproportionality that must be corrected by this Tribunal**, bearing in mind that, as has been sustained by this Chamber, in this type of discussion about the amounts to be received, the constitutional right to receive a retirement or a pension is not at stake, since the latter does not consist of the right to receive a specific amount of money, and therefore the amounts to be paid may be adjusted according to the financial possibilities of the State and the pension designs, provided that the dignity of the person is not affected nor the possibility of enjoying their other fundamental rights and, in general, of leading a dignified life is prevented.

In principle, it is observed that this special charge (carga especial), according to the design discussed in the actions, sought to tax the excesses over the cap set in Article 225 of the Ley Orgánica del Poder Judicial, namely, ten times the minimum wage paid in the Judicial Branch, which was established for the year 2020 at 433,800 colones. Thus, the application of the special, solidarity, and redistributive contribution (contribución especial, solidaria y redistributiva) would have begun to be deducted on excesses of payments exceeding 4,330,800 colones, thereby fulfilling the proposed goal of balancing extraordinary expenses that the fund would have to face with extraordinary income; this need was clearly set out in the study and technical proposal used as a basis for the legislation by the Legislative Assembly, as observed on folio 1984 of the legislative file which contains the summary tables of the four regulatory frameworks proposed by the IICE and which explain—in the paragraph on additional income—the need for a solidarity contribution for those payments above the proposed cap, and it was clarified that it involved a single percentage. Furthermore, the necessity and suitability of said measure becomes even more evident when it is confirmed that the Assembly excluded from the final text the sums corresponding to abandoned judicial deposits that were included in the technical proposal as additional resources in the aforementioned recommended regulatory frameworks. It must also be taken into account that what was approved was a progressive scale that, in this tax-collection matter, is much more protective of those affected, such that—in the Chamber's opinion—the requirement of proportionality in the strict sense is satisfied. The plaintiffs insist on the fact that the claims could reach such a magnitude as to deprive retirees (jubilados) and pensioners (pensionados) of the possibility of living a dignified life, but the truth is that, in this aspect, the arguments indicated in judgment 2020-19274 are fully applicable, which held, by majority, that the reduction of retirement amounts by up to 50 percent is not in itself unconstitutional, but rather that the interested parties must demonstrate that the remaining sums actually received are insufficient to satisfy their basic needs as older persons and to maintain a standard of living that can objectively be considered dignified. In the specific case, and with the original cap indicated above, the recipients of the lowest retirement benefits or pensions (pensiones) within the group affected by this special, solidarity, and redistributive contribution would have to receive 50 percent of the gross amount; that is, in the worst-case scenario of reduction for them due to increases in legal contributions of any type, the minimum to be received would be 2,150,000 colones. It was incumbent upon the plaintiffs to demonstrate clearly that said sum is generally insufficient to adequately cover the average needs of a retired (jubilado) or pensioned (pensionado) person in our country. It must also be considered that, in accordance with the social security system derived from the validity of the Ley de Protección al Trabajador, retirees (jubilados) will have additional sums derived from their funds in the other two pillars. From the foregoing, it is concluded that there is also no defect of unconstitutionality in the original design of the special, solidarity, and redistributive contribution contained in the original text of Article 236 bis of the Ley Orgánica del Poder Judicial. (…)” (The emphasis is not part of the original).

Consequently, what is appropriate is to dismiss this aspect of the proceeding.

**G. Regarding the alleged violation of the principle of solidarity.** The plaintiffs also accuse that the law under review violates this principle, since it varies the circumstances for a specific sector of the population—retirees (jubilados) of the Judicial Branch—with a reform that is not progressive, but disruptive, generating poverty and patrimonial detriment.

Having reviewed the foregoing, this Chamber does not find merit to uphold this aspect of the proceeding. The foregoing, in the first place, insofar as the plaintiffs—as is appropriate when filing a formal proceeding such as an acción de inconstitucionalidad—do not clearly and precisely explain or substantiate how, concretely, through the articles contained in Law No. 9796, the principle of solidarity could be seen to be violated. In addition to that, the plaintiffs did not demonstrate their alleged condition of poverty and patrimonial detriment; inputs of great relevance for understanding and examining this particular aspect. Regarding this last point, it is worth noting that this Chamber, in the repeatedly cited judgment 2021-11957, of 5:00 p.m. on May 25, 2021, when hearing arguments similar to those now raised, held the following:

“Secondly, the plaintiffs speak of high percentages of impact with respect to the last salary, but—apart from what has been said regarding such parameter—the truth is that no technical evidence is provided regarding the real impact and effect of the challenged legal reform, given that all deductions except one are pre-existing to the reform, and the only nominal changes that the Chamber appreciates are: the shift from 11 to 13 percent in the worker's contribution and the charge of 5 per thousand (that is, 0.5%) to attend to the Fund's administration expenses, so that—in its essence—the structure of the deductions is not majorly different from that applicable to the fund participants during their working life, nor compared to the previous legal situation that the plaintiffs claim; accordingly, it was incumbent upon the plaintiffs to demonstrate that such modifications generated a serious decrease in the real income of those affected, but such evidence is notably lacking (…)

In the fourth and last place, it is not unnecessary to point out that a claim like the one raised on this point, (delivery of retirement benefits qualified as “ruinous, pauperizing, and undignified”) cannot be based on abstract elaborations referring only to percentages of reduction, because this omits the fact that “ruin,” “pauperization,” and “indignity” do not operate in the abstract but are verified in reality against the insufficiency of the payments and the real amounts received; with this it is meant to emphasize that speaking in the abstract of deductions of 50 or 55 percent on the last salary could include, for example, cases of salaries between 4 and 6 million colones which, reduced by half, leave the beneficiary with a net retirement sum of around 2 to 3 million colones per month, which—in light of this Court's experience and barring proof to the contrary—cannot be openly estimated as insufficient to live a dignified old age in our country (…)” (The emphasis is not part of the original).

Likewise, in this last vote, this jurisdiction also stated:

“(…) It was also explained above, that the concrete amounts that have been subject to the special tax (gravamen especial), given their high amount, leave in the hands of the affected retirees (jubilados) and pensioners (pensionados) a remaining sum regarding which the plaintiffs have not managed to demonstrate, not even indiciarily, its manifest insufficiency to provide economic support for a dignified life and the enjoyment of the human rights that make up the assets of older persons, even more so taking into account that precisely in attention to constitutional and conventional obligations, the State—in a broad sense—has been building a support structure in various areas to ensure not only for retirees (jubilados) but for all older persons precisely that dignity in old age. In conclusion, as stated, no concrete impact on the possibilities of effective enjoyment of fundamental rights and the possibility of living a dignified life, recognized in favor of older persons by regulatory instruments of various ranks and by the Chamber's jurisprudence, has been demonstrated, so, accordingly, the acción must be declared without merit also on this point (…)” (The emphasis is not part of the original).

Now, despite what was said supra, it is convenient to note that this jurisdiction, when issuing judgment No. 2024-6250, of 4:30 p.m. on March 6, 2024—which ruled precisely on the present law under review No. 9796—was clear in pointing out that the right to retirement (jubilación), inserted as a social and solidarity right, concomitantly entailed—in accordance with the provisions of constitutional Article 50—a task for the State of administration, management, and redistribution of resources, in order to precisely ensure the solvency of the retirement system itself and the general well-being of the social collective. On this occasion, alluding, in turn, to the provisions of Judgment No. 1999-3338, the Chamber thus held that solidarity among the members of a community (which implies, grosso modo, contributing according to one's possibilities and for the benefit of those who possess less), legitimizes and justifies the imposition of charges (such as the special solidarity contribution (contribución especial solidaria)), in favor of a just and adequate redistribution of wealth.

In addition to the foregoing, it cannot be overlooked that, contrary to what was alleged by the plaintiffs and as explained supra, the tax in question is indeed progressive, so that, within the taxed group, those who receive the highest sums must contribute more to the fund's sustainability.

Having said the foregoing, this aspect of the proceeding must be declared without merit.

**H. Regarding the alleged lack of technical studies.** Finally, the plaintiffs argue that, for the establishment of the contribution percentages to the regime—which range between 35% and 55%—there were no technical studies, which, in their opinion, makes the regulations under review arbitrary and unconstitutional.

However, in the opinion of this Chamber, this argument is also not acceptable. The foregoing, insofar as the plaintiffs, once again, omitted to present arguments, in a duly substantiated manner, regarding how that alleged omission (lack of technical studies to impose the referred contribution percentages) could imply or signify an unconstitutionality. As can be easily inferred from a reading of the filing brief for this acción de inconstitucionalidad, first the interested parties only indicated that the contributions imposed on the Judicial Branch retirees (jubilados) cause a deterioration in their economic condition "by setting confiscatory deduction levels, which are not supported by technical and/or specialized studies." Some pages later, they merely mentioned that "in the law we challenge, deduction percentages are set at 35% (…) 45% (…) and 55% (…) percentages set without any technical study, therefore they are arbitrary and confiscatory (…)." As has been explained supra, it is fundamental, to hear this grievance on its merits, that the plaintiffs provide duly motivated reasoning regarding the way in which, in their opinion, the alleged lack of technical studies could clash with the provisions of the Constitución Política; hence, in the absence of such reasoning, this jurisdiction cannot issue any ruling.

In any case, it is of interest to consider that in judgment No. 2024-6250, of 4:30 p.m. on March 6, 2024—through which, as already stated, this Chamber ruled on the constitutionality of Law No. 9796, but referring to or circumscribed to the area of the pension regime of the Magisterio Nacional—an analysis of the legislative process—file No. 21.035—was carried out, and it was noted that, for the approval of said regulations, technical criteria were indeed available.

It is worth mentioning that although, on that occasion, the Chamber focused on the analysis of that specific pension regime—Magisterio Nacional—, it was also stated that, for the purpose of issuing the regulations in question, including those pertaining to the Judicial Branch, studies and technical criteria that supported it were then available, which, moreover, was confirmed by what was stated by the legislative advisor of the Departamento de Servicios Técnicos, Mr. Arias Ramírez, in ordinary session No. 30 of the Comisión Permanente de Asuntos Sociales, who, on that opportunity, asserted that actuarial reports were indeed available, the Judicial Branch's even being the last to arrive. According to what was indicated by this constitutional body in said recent judgment, even though at an initial stage of the legislative process the technical studies were lacking, the truth is that these were finally added to the respective file, with which it is not possible to affirm that the law in question was enacted lacking such inputs.

Finally, it is important to clarify that any disagreement one may have regarding the actual content of said technical criteria is not to be analyzed by this constitutional body. It is not for this Chamber, lacking competence for it and since it is, in essence, a matter of mere and pure legality, to examine what was stated on those occasions and determine, consequently, whether what was ordered or recorded in one or another technical criterion was relevant or not; especially, for the purposes of the reform made to the Judicial Branch pension regime.

Under this order of considerations, this aspect of the proceeding must be equally dismissed.

**XI.- COROLLARY.** In light of the foregoing, it is appropriate to partially uphold the present acción de inconstitucionalidad. Consequently, the contribution percentage and the special contribution established in Article 5 of Law No. 9796 are annulled insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired (jubilada) or pensioned (pensionada) person in the Judicial Branch regime. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber calibrates and dimensions the effect of this ruling, so that, starting from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in accordance with this judgment, in such a way that the tax burden on the amount of the retirement benefits and pensions does not exceed 50% of the gross amount received by the retiree (jubilado) or pensioner (pensionado).

**XII.- DISSENTING VOTE OF JUDGE RUEDA LEAL.** In the sub examine, the majority partially upholds the action and “annuls the contribution percentage and the special contribution established in Article 5 of Law No. 9796 insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired (jubilada) or pensioned (pensionada) person in the Judicial Branch regime.” In this regard, I partially dissent from the vote in relation to this aspect and declare it without merit, since, according to the express text of Article 67 of ILO Convention No. 102 of 1952, called ‘Convention concerning Minimum Standards of Social Security’, the pension or retirement benefit can be reduced as long as 40% of a reference salary is respected.

In this regard, the main judgment of this proceeding bases the unconstitutionality referred to ut supra on what was resolved in judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021, which ordered: “(…) By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas and Hernández Gutiérrez), the percentage of contributions and the special, solidarity, and redistributive contribution are annulled insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired (jubilada) or pensioned (pensionada) person. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber calibrates and dimensions the effects of this ruling, so that, starting from the month following the notification of the judgment, the competent authorities must make the corresponding adjustment in accordance with this judgment, in such a way that the tax burdens on the amount of the retirement benefits and pensions do not exceed 50% of the gross amount received by the retiree (jubilado) or pensioner (pensionado).” However, I separated from that criterion in the following terms:

“**Dissenting vote of Judge Rueda Leal in relation with considerando XLI.** In the sub examine, the unconstitutionality of Law No. 9544 is alleged, insofar as it amended Article 236 of the Ley Orgánica del Poder Judicial and added numeral 236 bis to that body of law. It is reproached that in both articles a maximum cap of 55% of deductions with respect to the gross retirement amount was established, which they consider excessive and contrary to the fundamental right to retirement (jubilación).

The challenged norms have this content:

“Article 236- The Fondo de Jubilaciones y Pensiones del Poder Judicial shall have the following revenues:

• 1)A worker contribution (aporte obrero) of thirteen percent (13%) of the salaries earned by judicial servants, as well as of the retirement benefits (jubilaciones) and pensions (pensiones) chargeable to the Fund, a percentage that shall be withheld from the corresponding periodic payment.
• 2)An employer contribution (aporte patronal) from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the wages and salaries of its servants.
• 3)A contribution from the State that shall be a percentage on the wages and salaries equal to that established for the Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense de Seguro Social (CCSS).
• 4)The returns and other benefits that the Fund produces or may come to generate or obtain.

In no case may the sum of the mandatory contribution and the special, solidarity, and redistributive contribution and, in general, the totality of the deductions applied by law to all pensioners (pensionados) and retirees (jubilados) of the Fondo de Jubilaciones y Pensiones del Poder Judicial represent more than fifty-five percent (55%) with respect to the totality of the gross amount of the pension to which the beneficiary is entitled by right.

In cases where this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum is equal to fifty-five percent (55%) of the total gross pension amount.

The resources obtained from the mandatory contribution established in this law shall be deposited into the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial).

Article 236 bis – Special, solidarity-based, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts set forth below shall contribute on a special, solidarity-based, and redistributive basis, in accordance with the following table:

• a)On the excess above the cap established in Article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess above the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess above the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess above the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess above the preceding margin, they shall contribute fifty-five percent (55%).

In no case may the sum of the special, solidarity-based, and redistributive contribution and the totality of the deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) represent more than fifty-five percent (55%) of the total gross pension amount to which the beneficiary is legally entitled. In cases where this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum is equal to fifty-five percent (55%) of the total gross pension amount.

The resources obtained from the special, solidarity-based, and redistributive contribution established in this law shall be deposited into the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial.” Regarding the maximum percentage of deductions from pensions, the Majority opinion partially transcribes the ruling in judgment No. 202019274, issued at 4:30 p.m. on October 7, 2020. Additionally, it states that articles 236 and 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) (reformed by the challenged law No. 9544) are unconstitutional, because both set 55% as the maximum legal deduction cap, which exceeds by 5 percentage points the maximum established in the cited resolution. Likewise, it annuls the contribution percentage and the special contribution to the extent that it exceeds 50% of the gross pension amount to which the retired or pensioned person is entitled.

Nevertheless, I respectfully dissent from the Majority's criterion and declare the action without merit based on these reasonings.

As I indicated in my dissenting vote to judgment No. 202019274, issued at 4:30 p.m. on October 7, 2020, the percentage established by the Majority as the maximum limit for contributions and deductions (50%) was based on a strained interpretation of numeral 71.2 of ILO Convention C102, since Article 67 of that international instrument is the one that applies to pension reductions. On that occasion, I stated:

**“III.- Dissenting vote regarding the substantive claims related to Laws No. 9380 and 9383.** The legal premise of the majority vote, upon which most of its line of argument is based, starts from the assumption that Article 71.2 of ILO Convention C102 of 1952 - Convention concerning Minimum Standards of Social Security - is applicable to pensioners and retirees. Said provision states:

“2. The total of the insurance contributions borne by the employees protected shall not exceed 50 per cent. of the total of the financial resources allocated to the protection of employees and their wives and children. Where it is necessary to ascertain whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, with the exception of family benefit and benefit in respect of employment injuries, if the latter is provided by a special branch.” Since the rule refers to "employee," the majority is forced to define the meaning of that term, given that it evidently refers only to active workers. In that sense, the principal vote in this proceeding states:

“It would remain to be determined whether ‘employee’ means only the worker before acquiring the right to a pension upon the occurrence of the formal and substantive conditions of the right, or whether it is possible to understand that employee also refers to another type of system beneficiary. In the opinion of this Chamber, a broader interpretation must be given that includes not only the active worker, to admit that, indeed, the pensioner or retiree would be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic point of view, with the idea that the pensioner or retiree receives a deferred salary that they built with their contributions throughout their working life. Furthermore, one cannot fail to consider that in the document of the Committee of Experts, the concept of employees evolves when referring to ‘insured persons.’ Thus, said concept must be assimilated to both obligors, as potential and current insured persons: pensioner and employee. See, the cited study emphasizes that there is no straitjacket imposed on States; on the contrary, the approach must respond to national contexts, and the evolution of systems cannot be ruled out in order to agree on a solidarity-based financing system and good governance within the framework and evolution of human rights, as will be discussed below. If the provision seeks to achieve a balance, it is perfectly reasonable that it should include all those who receive a pecuniary sum resulting from the agreed benefit, because in that sense, it distributes that burden across all participants, which is what the international standard truly seeks to establish. This interpretation would respond positively to the Committee of Experts already cited. Consequently, it must be understood that ‘employee’ or ‘insured person’ has a broad meaning and is not a term that excludes pensioned or retired persons.” Based on the foregoing, the Chamber, in the principal vote, concludes that Laws No. 9380 and 9383 violate the second paragraph of numeral 71 of ILO Convention No. 102 by establishing a cap greater than 50%. Likewise, the majority considers that the 5% excess established by the legislator implies a violation of the hard core of the right to retirement or pension, insofar as benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the above, the undersigned dissents from this hermeneutics, because it is based on an erroneous premise stemming from a technical confusion regarding basic legal notions.

First, numeral 71.2 of ILO Convention C102 of 1952 - Convention concerning Minimum Standards of Social Security - refers to the percentage of insurance contributions borne by employees in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, the employee, in accordance with the referenced rule, should never contribute to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) more than 50% of the total resources allocated to the protection of employees and their wives and children, that is, of the total resources financed through the remaining contributions (from the employer and the State).

Now, it is undeniable that the express text of the convention's rule regulates "employees"; that is, the economically active population, without it being possible to validly infer from any ILO study the conclusion reached by the majority that it also applies to "pensioners." The most serious aspect of the foregoing is that the Chamber, through case law, alters the positive text of a conventional rule ratified by Costa Rica through competent bodies. In this way, it changes the legal-normative meaning of the provision contained in the international instrument with the purpose of forcibly adapting it to the specific case, which notoriously deals with a matter outside the object of the sub lite - salary -, thus ignoring the existence of other rules of the ILO Convention that specifically and concretely regulate matters pertaining to pensions and the limitations that may be validly imposed upon them in the interest of the financial stability and social solidarity of the system.

In this regard, Part XI "Calculation of Periodical Payments" contains the following provision:

"Article 67 With respect to any periodical payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or a rule fixed by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other resources of the family, after deducting the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of benefits paid, for the part in question, exceeds by at least 30 per cent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

SCHEDULE ANNEXED TO PART XI.—PERIODICAL PAYMENTS TO STANDARD BENEFICIARY

(The highlighting does not correspond to the original).

Ergo, according to the literal and explicit text of the Convention, for the old-age pension to be reducible and, in this way, in principle to ensure the family healthy and decent living conditions, such benefit must reach at least 40 per cent of a reference wage.

Regarding this point, an ILO study does exist. Precisely, at the International Labour Conference, 76th Session, 1989, "The protection of old age through social security, general survey of the Committee of Experts on the Application of Conventions and Recommendations," it was stated:

"Level of benefits 130. By virtue of the schedule annexed to Part XI of Convention No. 102 relating to periodical payments, the **old-age** benefits for a standard beneficiary - man with spouse of pensionable age - **must reach 40 per cent** of a reference wage2. This percentage is raised to 45 per cent in the schedule annexed to Part V of Convention No. 128. Both percentages may, however, be reduced by ten units at most if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into consideration by the Conventions (paragraphs 1, 3 and 4, Article 29 of Convention No. 102 and paragraphs 1, 3 and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 per cent3 (paragraph 22, and recommends in its paragraph 23 that national legislation set the minimum amount of old-age benefits in order to ensure a minimum standard of living." (The highlighting does not correspond to the original).

Thus, I consider that the premise from which the majority vote proceeds is false, so that inexorably the conclusions derived from it are erroneous.

Now, the sole Article of Law No. 9380 of July 29, 2016, entitled "Contribution percentage for pensioners and active employees for special pension schemes," regulates:

"In no case may the totality of the deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five per cent (55%) of the total amount of the pension to which the beneficiary is legally entitled." In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." For its part, paragraph 3 in fine of Law No. 9383 of July 29, 2016, entitled "Framework Law on the Special Contribution of Pension Regimes," provides:

"In no case may the sum of the special, solidarity, and redistributive contribution and all deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." This 55% limit with respect to the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since it cannot be inferred from the petitioners' arguments that its application automatically breaches the 40% barrier with respect to a reference salary under the terms of Article 67 of that international instrument. In that regard, such reference salary, in the case of Costa Rica, could refer to the average of salaries used to calculate a person's pension amount, which is consistent with Article 65 of that regulation. It should be noted that the 55% parameter of the challenged laws relates to the gross amount of the pension, while the conventional 40% relates to a reference salary, meaning that these are limits applied differently. Therefore, it will be in the context of the application of the legal norm that it must be assessed whether, in any specific case, probably concerning very high pensions, the conventional barrier overrides the legal parameter.

Additionally, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Civil Service Directorate General) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383), subject to a gradual scale of impact, guarantee more than dignified pensions for older adults. In the foregoing sense, I see no arguments demonstrating that the staggered contribution and the charges imposed are openly unreasonable or affect the core of the right to a pension, and I therefore rule out any manifest impact on the human dignity of the beneficiary persons.

Regarding the foregoing, it is not possible to affirm that the questioned provisions breach the international protection enjoyed by older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a decent standard of living.

Thus, I consider that, with the elements provided in the case file, Laws No. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they breach the special protection enjoyed by older adults.

Similarly, even though a breach of the principle of administrative liability is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause harm to persons; therefore, I prima facie dismiss this claim.

(…)

In the sense set forth, if a pension financed largely or entirely with public funds is unreasonably high (with disproportionate amounts and increments), it is justified that legislation be used to seek the adjustment of such benefits for the sake of safeguarding the right to a dignified existence for all pensioned persons. Provided that the imposition of contributions and charges on old-age pensions and retirements respects the conventionally established percentage (Article 67 of ILO Convention 102), there would be, a priori, no breach of Constitutional Law. It must be taken into consideration that, as accepted by the majority of this Chamber, the country's economic situation is complicated and the sustainability of the pension regime is compromised; therefore, in accordance with the principle of social solidarity, it is essential that those who are in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood from the standpoint of solidarity toward the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of persons. For that very reason, it is precisely not considered contrary to the principle of non-retroactivity to increase the contribution amounts of pensioned or retired persons, provided that the guarantees and limits set forth in this dissenting opinion are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights relating to the right of persons to lead a dignified life in their old age, and considers that the 40% percentage provided for in Article 67 of ILO Convention 102 itself is contrary to justice, equity, the prohibition of arbitrariness, and legitimate confidence. However, as I indicated supra, the norm of the international instrument applicable to the specific case is precisely that Article 67, endorsed by the ILO, but not Article 71.2, as it is forcedly interpreted by the majority in the main ruling.

Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scale issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2,602,500.00 in the first half of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact on larger pensions, guarantee more than dignified pensions for older adults.

Finally, even though there are ILO recommendations suggesting half the salary as a pension in cases where thirty years of effective contributions are credited, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose binding nature is unquestionable) does expressly contemplate a percentage that must be respected for pension purposes in old-age cases (40% of a reference salary), hence the direct application of the international instrument in the sub lite is appropriate.

Based on the foregoing, I dismiss the actions as they relate to Laws No. 9380 and 9383.” Precisely, in accordance with the position set forth above, the provision of ILO Convention C102 applicable to this type of matter is Article 67, and not numeral 71.2.

In this regard, Articles 67 and 71.2 state:

“Article 67 With respect to any periodic payment to which this article applies:

(a) the rate of the benefit shall be determined according to a prescribed scale or a scale fixed by the competent public authorities in conformity with prescribed rules; (b) the rate of the benefit may be reduced only to the extent by which the other means of the family of the beneficiary exceed prescribed substantial amounts fixed by the competent authorities in conformity with prescribed rules; (c) the total of the benefit and the other means of the family, after deduction of the substantial amounts referred to in subparagraph (b) above, shall be sufficient to maintain the family in health and decency, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of the benefits paid under the Part concerned exceeds by at least 30 per cent. the total amount of the benefits which would be obtained by applying the provisions of Article 66 and the following provisions:

(i) Article 15, subparagraph (b), for Part III; (ii) Article 27, subparagraph (b), for Part V; (iii) Article 55, subparagraph (b), for Part IX; (iv) Article 61, subparagraph (b), for Part X.

TABLE ANNEXED TO PART XI.—PERIODIC PAYMENTS TO STANDARD BENEFICIARY

(…)

“Article 71.

(…)

2. The total of the insurance contributions borne by the employees protected shall not exceed 50 per cent. of the total of the financial resources allocated to the protection of employees and their wives and children. For the purpose of ascertaining whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefit and employment injury benefit, if the latter is provided by a special branch.” As can be inferred from reading the cited articles, the Chamber, in judgment No. 202019274 of 16:30 hours on October 7, 2020, unnecessarily altered the legal-normative meaning of Article 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of Article 67 of the international instrument, which specifically regulates matters concerning the limitations that may be imposed on pensions.

Note also that Article 71.2 refers to the percentage of insurance contributions borne by wage earners in relation to the total resources allocated to that protection; that is, this provision governs “wage earners” (the economically active population) and not “pensioners or retirees.” Based on the foregoing, in accordance with the line I have maintained, I dismiss these arguments, since it is not evident that Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial cited above automatically exceed the 40% barrier of a reference salary, established in Article 67 of ILO Convention C102. Note that the 55% parameter of the laws under challenge refers to the gross amount of the pension, while the conventional 40% refers to a reference salary; thus, it is within the scope of the application of the legal norm to assess whether, in any specific case, the barrier established in the international instrument supersedes the parameter set forth in the legislation. Consequently, I see no arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right.” Additionally, in resolution no. 2020-19274 of 4:30 p.m. on October 7, 2024 (also cited by the majority as grounds for granting the claim), I issued, in the relevant part, the following dissenting opinion:

“**Dissenting opinion of Magistrate Rueda Leal.** (…)

**III.- Dissenting opinion regarding the substantive claims related to Laws no.⁰ˢ 9380 and 9383.** The legal premise of the majority opinion, on which most of its line of argument is based, starts from the assumption that Article 71.2 of ILO Convention C102 of 1952 - Convention concerning Minimum Standards of Social Security - is applicable to pensioners and retirees. This provision states:

“2. The total of the insurance contributions borne by the wage earners protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of wage earners and their spouses and children. In order to determine whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefits and benefits in respect of employment injuries and occupational diseases, if the latter are provided by a special branch.” Since the norm refers to “wage earners,” the majority is forced to clarify the meaning of that term, given that it evidently only alludes to active workers. In that regard, the main opinion of this proceeding states:

“It remains to be determined whether ‘wage earner’ means exclusively the worker before acquiring the right to a pension upon the advent of the formal and substantive conditions of the right, or whether it is possible to understand that wage earner also refers to another type of beneficiary of the system. In this Chamber’s view, a broader interpretation must be given that includes not only the active worker, to admit that, in effect, the pensioner or retiree would be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic standpoint, in that the pensioner or retiree receives a deferred salary that they built with their contributions throughout their working life. Moreover, it cannot be overlooked that in the document of the Committee of Experts, the concept of wage earners evolves when referring to ‘insured persons.’ Thus, this concept should be assimilated to both obligated parties, as potential and current insured persons: pensioners and wage earners. See that the cited study emphasizes that there is no straitjacket on States; on the contrary, the approach must respond to national contexts, and the evolution of systems cannot be ruled out to agree on a supportive system of financing and good governance within the framework and evolution of human rights, as will be stated below. If the provision seeks to achieve a balance, it is perfectly reasonable that it should include all those who receive a pecuniary sum resulting from the agreed benefit, because in that sense, it distributes that burden among all participants, which is what the international norm truly seeks to establish. This interpretation would replicate positively with the Committee of Experts, already cited. Consequently, it must be understood that ‘wage earner’ or ‘insured person’ has a broad meaning, and it is not a term that excludes pensioned or retired persons.” Based on the foregoing, the Chamber, in the main opinion, concludes that Laws no.⁰ˢ 9380 and 9383 infringe the second paragraph of Article 71 of ILO Convention no. 102 by establishing a ceiling higher than 50%. Likewise, the majority considers that the 5% excess set by the legislator implies a violation of the core of the right to retirement or pension, to the extent that the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the above, the undersigned dissents from this hermeneutic, because it is based on an erroneous premise stemming from a technical confusion in basic legal notions.

Firstly, Article 71.2 of ILO Convention C102 of 1952 - Convention concerning Minimum Standards of Social Security - refers to the percentage of insurance contributions borne by wage earners in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, the wage earner, according to the referenced norm, should never contribute to the Caja Costarricense de Seguro Social more than 50% of the total resources allocated to the protection of wage earners and their spouses and children, that is, of the total resources financed through the remainder of the contributions (from the employer and the State).

Now, it is indisputable that the express text of the convention norm regulates “wage earners”; that is, the economically active population, and no valid ILO study can infer the conclusion reached by the majority that it also applies to “pensioners.” The most serious aspect of the foregoing is that the Chamber, by jurisprudential means, varies the positive text of a conventional norm ratified by Costa Rica through the competent bodies. In this way, it changes the legal-normative meaning of the provision contained in the international instrument with the purpose of forcefully adapting it to the specific case, which notoriously deals with a matter foreign to the object of the sub lite - the salary - thus disregarding the existence of other norms of the ILO convention that specifically and concretely regulate matters pertaining to pensions and the limitations that can validly be imposed on them in the interests of the financial stability and social solidarity of the system.

In this regard, Part XI “Calculation of Periodic Payments” contains the following provision:

“Article 67 With respect to any periodic payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule set by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may not be reduced except to the extent that the other resources of the beneficiary’s family exceed appreciable prescribed sums or sums set by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and of the family’s other resources, after deduction of the appreciable sums referred to in paragraph (b) above, must be sufficient to ensure the family healthy and suitable living conditions, and must not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of paragraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds at least 30 percent of the total amount of the benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) paragraph (b) of Article 15, for Part III; (ii) paragraph (b) of Article 27, for Part V; (iii) paragraph (b) of Article 55, for Part IX; (iv) paragraph (b) of Article 61, for Part X.

TABLE ANNEXED TO PART XI.—PERIODIC PAYMENTS TO THE STANDARD BENEFICIARY

(The highlighting does not correspond to the original).

Ergo, according to the literal and explicit text of the Convention, for an old-age pension to be reduced and, in this way, in principle to ensure the family healthy and suitable living conditions, such benefit must reach at least 40 percent of a reference wage.

On this point, an ILO study does exist. Precisely, at the International Labour Conference, 76th Session, 1989, “The protection of old age through social security, general survey of the Committee of Experts on the Application of Conventions and Recommendations,” it was stated:

“Level of benefits 130. By virtue of the table annexed to Part XI of Convention No. 102 relating to periodic payments, **old-age benefits** for a standard beneficiary—man with spouse of pensionable age’—**must reach 40 percent** of a reference wage2. Said percentage rises to 45 percent in the table annexed to Part V of Convention No. 128. Both percentages may, however, be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence, normally taken into consideration by the Conventions (paragraphs 1, 3, and 4, Article 29 of Convention No. 102 and paragraphs 1, 3, and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 percent3 (paragraph 22), and recommends in its paragraph 23 that national legislation fix the minimum amount of old-age benefits, in order to ensure a minimum standard of living.” (The highlighting does not correspond to the original).

In this way, I consider that the premise from which the majority vote departs becomes false, so inexorably the conclusions derived from it are erroneous.

Now, the Sole Article of Law No. 9380 of July 29, 2016, called “Contribution Percentage for Pensioners and Active Servers for Special Pension Regimes,” regulates:

“In no case may the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%), with respect to the totality of the gross amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%), with respect to the totality of the gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%), with respect to the totality of the gross amount of the pension.” For its part, ordinal 3 in fine of Law No. 9383 of July 29, 2016, called “Framework Law on the Special Contribution of Pension Regimes,” establishes:

“In no case may the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) with respect to the totality of the gross amount of the pension to which the beneficiary is legally entitled.” In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted such that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” *This limit of 55% of the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since the claimants' arguments do not imply that its application automatically transgresses the 40% barrier with respect to a reference wage under the terms of Article 67 of that international instrument. In that sense, such a reference wage, in the case of Costa Rica, could refer to the average of wages used to calculate the amount of a person's pension, which is consistent with Article 65 of that regulation. It should be noted that the 55% parameter in the challenged laws is related to the gross amount of the pension, whereas the conventional 40% is related to a reference wage, meaning these are limits that operate differently. Consequently, it will be within the scope of the application of the legal norm that it must be assessed whether, in any specific matter, probably concerning very high pensions, the conventional barrier overlaps the legal parameter.* *In addition, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Dirección General de Servicio Civil) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subjected to a gradual scale of impact, guarantee more than dignified pensions for older adults. In the foregoing sense, I do not observe arguments demonstrating that the staggered contribution and the imposed burdens are openly unreasonable or affect the core of the pension right, and therefore I dismiss any manifest impact on the human dignity of the beneficiaries.* *Regarding the foregoing, it is not possible to assert that the challenged provisions transgress the international protection afforded to older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a dignified standard of living.* *Thus, I consider that, with the elements provided in the case file, Laws No. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they transgress the special protection afforded to older adults.* *Likewise, even though a transgression of the principle of administrative responsibility is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause harm to individuals, and therefore I prima facie dismiss this claim.* *In relation to the allegation of the non-retroactivity of the norms, the majority extensively cites Judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018. In this regard, I must mention that, certainly, in that resolution I issued a dissenting vote in the following terms:* **“Dissenting vote of Magistrate Rueda Leal.** *With the usual respect, I dissent on three specific issues, as I state below.* ***The first*** *relates to the interpretation made by the majority judgment. According to it, the reform of Article 3 of Law Number 7605 is applicable only to persons who acquired the right to the retirement pension or pension after the entry into force of Law 7858. According to this criterion, applying the cap established in that norm to persons retired prior to its entry into force infringes the principle of non-retroactivity of constitutional Article 34.* *When reading the judgment in question, the relevance of determining the legal nature of the right to a retirement pension or pension stands out. Indeed, contrary to the recommendation provided by the Procuraduría General de la República—which leans towards the acquired rights thesis—the Chamber defined that the retirement pension or pension is a consolidated legal situation and, to that extent, deemed it to fall within the scope of application of the principle of non-retroactivity. Based on this criterion, the Chamber reached the aforementioned conclusion and interpreted the effects of the challenged norm.* *Regarding the nature of the retirement pension or pension, I stated the following in Judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018:* *“…I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension can be modified or limited for reasons of public interest that are supported by technical studies, such as the viability of the regime or fund itself, provided that such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides which one cannot fail to notice the essential differences between the historical moment when it was agreed (year 1952) and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Centro Centroamericano de Población of the UCR, life expectancy at birth in Costa Rica was 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). Meanwhile, the total fertility rate per woman fell from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same sense, according to the World Bank, life expectancy at birth in Costa Rica was 60.58 years in 1960 and reached 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica was 6.5 children in 1960, falling to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).”* *The legal nature of this type of retirement pension or pension—which is not of individual capitalization—derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:* *“ARTICLE 50.- The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. (…)* *ARTICLE 74.- The rights and benefits referred to in this Chapter are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that the law indicates; they shall be equally applicable to all factors concurrent in the production process, and regulated in social and labor legislation, in order to procure a permanent policy of national solidarity.”* &#xa0; *As stated, this constitutional regulation has been developed by the Chamber to outline the principle of solidarity. A good example of that development is the following:* *“III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily leads to the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop fully on his own, but requires the participation of all other members of society to do so. In fact, constitutional Article 50 expressly imposes as one of the fundamental duties of the Costa Rican State the pursuit of an adequate distribution of wealth, an objective that cannot be achieved without the cooperation of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who have less. The foregoing is a fundamental right of persons occupying the lower strata, and a duty of all, mainly those most benefited by the economic system. Wealth in a society is not produced only by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not accrue only in favor of certain social classes. Linking this principle with that of social justice, positivized in Article 74 of the Constitution, according to which persons must collaborate reciprocally in order to preserve the human dignity of all members of the community, we find that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals was above individual interests; it is what is normally known as the social and democratic State of Law. It could thus be affirmed that solidarity among the members of the community is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense the judgments of this Chamber numbers 1441-92, 5125-93)” (Judgment No. 3338-99 of 6:45 p.m. on May 5, 1999).* *Based on these premises, I consider that the analysis of the unconstitutionality action must be conducted from a different perspective than the one adopted by the majority vote. Indeed, I verify that the judgment only partially assessed the legal elements relevant to the decision, since it focused solely on the objection of the claimant, related to the principle of non-retroactivity, without further reflection on the elements necessary for a pension regime to be sustainable and consistent with the principle of social solidarity. In my opinion, a comprehensive and holistic analysis of the legal question raised must be conducted to avoid an inadequate extension of constitutional principles, as occurred in this case with the principle of non-retroactivity. In other words, the Chamber should have first analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.* *In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it was sustainable and respected the principle of social solidarity. In other words, if the legislator conceived an unsustainable regime, without any type of provision to maintain its budgetary equilibrium, or one openly regressive, then such a regime would be unconstitutional specifically regarding such omission for failing to comply with the indicated postulates.* *From the foregoing, I derive that the principle of social solidarity and that of the regime's sustainability are inherent in every social pension regime <span style="text-decoration:underline">from the moment of its creation</span> and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State of Law.* *The need for the regime to be sustainable is not an element optional for the legislator, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis that a pension regime might collapse:* *“For this Tribunal, only in an extraordinary case—a financial debacle of the State or of the respective retirement and pension regime—, duly proven—technique of control of determining facts—, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that does not exist in the present case despite the fiscal crisis the central government is undergoing—a fiscal deficit exceeding 3% of GDP and which could reach 7%—, provided that adequate and effective measures are adopted to reduce said deficit in the short term, it is possible to comply with the constitutional principle of financial equilibrium enshrined in constitutional Article 176.”* *In other words, the majority criterion would accept legislation contrary to the principle of non-retroactivity in the event of a “debacle.” I consider such a contradiction unnecessary because I start from the premise that sustainability is a principle inherent to every solidarity-based pension regime and obligates its participants—all of them—to contribute to its maintenance. Indeed, the sustainability of the regime permeates the legal nature of the pensions and retirement pensions linked to it. The hypothetical case raised by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the retirement pension or pension is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the “debacle,” then all participants in it will see their claims frustrated. Hence, it is feasible—even necessary—to modify the conditions of all retirement pensions or pensions, provided that the modifications are intended to protect the sustainability of the regime and respect the principle of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of their content by a subsequent reform.* *In the sub iudice, the challenged norm sets a cap that only comes into operation when a risk situation for the regime arises, since it would be applicable when “…the income from state, worker, and employer contributions is less than the expenditures derived from the payment of benefits…”. I emphasize that this cap is extraordinary and requires the verification of these technical budgets for its application. Likewise, it is relevant that its application parameter is linked to the sustainability of the pension regime, complying with the postulates explained above.* *Given the legal nature of pensions and retirement pensions, the foregoing considerations lead me to conclude that it is constitutionally valid that, in accordance with the principle of social solidarity, when a pension regime is in a crisis of financial sustainability, to resolve that situation, caps based on technical studies be applied to both those who acquired the right to the retirement pension or pension prior to its entry into force and those who did so subsequently.* *I conclude this argument by noting that constitutional Article 34 does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek the recovery of what was paid justly based on the repealed legislation.* ***The second point*** *relates to Article 3 bis of Law No. 7605, which excepts beneficiaries of Law 7007 and those who postponed their retirement from the application of the cap in Article 3. On this point, I return to the explanation provided above. All participants in a pension regime must contribute to its sustainability; in addition, the established cap is extraordinary and applicable only when the technical conditions indicated above are present; otherwise, such a cap would not apply.* *Starting from these premises, I consider that establishing the exceptions set forth in cited Article 3 bis constitutes a violation of the right to equality in relation to the principle of social solidarity. No legally plausible justification is observed for exempting the subjects contemplated therein from their duty to contribute to the sustainability of the fund for the sake of social solidarity. I reiterate that the sustainability of the retirement pension or pension regime rests on all its participants. If a regime is unsustainable from a financial point of view, it becomes unconstitutional for certain beneficiaries not to contribute, without some valid reason to justify it. Therefore, I grant the action in that respect.”* *In the sub examine, the majority again recognizes that the regulation can have retroactive effects in the event of an economic “debacle”; however, as I maintained in the dissenting vote cited supra, sustainability is a principle inherent to every solidarity-based pension regime and obligates all its participants to contribute to its maintenance. This is the principal aspect to consider when analyzing norms such as those challenged here.* *If, according to the Ministerio de Hacienda, out of every 100 colones, 90 are financed through taxes or debt, the special pension regimes charged to the National Budget suffer from clear financial sustainability problems. In addition, if that regime becomes insolvent or if the State loses its capacity to meet its obligations, then all participants in it will see their claims frustrated. Hence, it is feasible to levy charges on the retirement pensions or pensions that have the greatest benefits and, even, to modify their conditions, provided that the adjustments are intended to protect the sustainability of the regime and respect the principle of reasonableness and proportionality in relation to social solidarity.* *In the sense expressed, if a pension financed largely or entirely with public funds is unreasonably high (with disproportionate amounts and increments), it is justifiable that through laws, the adjustment of such benefits be sought in order to safeguard the right to a dignified existence for **all** pensioners. As long as the imposition of contributions and burdens on retirement pensions and old-age pensions respects the percentage established conventionally (Article 67 of ILO Convention 102), a priori there would be no transgression of the Law of the Constitution. It must be taken into account that, as the majority of the Chamber accepts, the country's economic situation is complicated and the sustainability of the pension regime is compromised, and therefore, in consideration of the principle of social solidarity, it is essential that those who are in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood from the standpoint of solidarity towards the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of people. Therefore, precisely, it is not considered contrary to the principle of non-retroactivity to increase the contribution amounts of retired or pensioned persons, provided that the guarantees and limits set forth in this dissenting vote are respected.* *Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights relating to the right of persons to lead a dignified life in their old age, and considers that the 40% percentage, contemplated in Article 67 of ILO Convention 102 itself, is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectations. However, as I indicated supra, the norm of the international instrument applicable to the specific case is precisely that Article 67, endorsed by the ILO, not Article 71.2, as is forcedly interpreted by the majority in the main judgment. Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2,602,500.00 in the first half of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No.* ...o 9380 as Law No. 9383) subjected to a gradual scale of impact on larger pensions, guarantee more than dignified pensions for older adults.

Finally, even though there are ILO recommendations suggesting half the salary as a pension in cases where thirty effective years of contributions are accredited, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose obligatory nature is unquestionable) does expressly contemplate a percentage that must be respected for the purposes of a pension in old-age cases (40% of a reference salary), hence the direct application of the international instrument is appropriate in the sub lite.

Based on the foregoing, I declare the actions without merit with respect to Laws No. 9380 and 9383.” (…)”.

Additionally, I clarify that, in judgment No. 2024006250 of 4:30 p.m. on March 6, 2024 (also mentioned by the majority as support for the declaration of unconstitutionality), I dissented and declared the actions inadmissible, so I did not rule on the alleged unconstitutionality of Law No. 9796.

Now, regarding this action, I observe that the Chamber, by majority, maintains the criterion of applying numeral 71.2 of ILO Convention No. 102 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of ordinal 67 of the international instrument which specifically regulates matters concerning the limitations that can be imposed on pensions. Note also that article 71.2 refers to the percentage of insurance contributions payable by employees in relation to the total resources allocated to that protection; that is, such provision regulates "employees" (the economically active population) and not "pensioners or retirees." Ergo, consistent with the line I have maintained, I do not observe any unconstitutionality in ordinal 5 of Law No. 9796, since it was not demonstrated that the barrier of 40% of a reference salary, established in ordinal 67 of ILO Convention C102, is automatically exceeded. Observe that the 55% parameter of the questioned article refers to the gross amount of the pension, while the conventional 40% refers to a reference salary, so it falls within the scope of the application of the legal norm to assess whether, in any specific matter, the barrier established in the international instrument supersedes the parameter set in the legislation. Consequently, I do not observe arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right, so prima facie I dismiss any violation of the rights to retirement and social security, as well as the principle of non-confiscation.

On the other hand, in attention to the provisions set forth in resolution No. 2021-11957 of 5:00 p.m. on May 25, 2021, the declaration without merit of the claims raised regarding double taxation is based, as well as the accused transgression of the principles of non-retroactivity; legal certainty; equality; reasonableness and proportionality; and solidarity. In this regard, I must mention that on that occasion (except regarding the legislator's omission to include a gender perspective) I agreed with the dismissal arguments set forth by the majority (reason for which I agree with the claims declared without merit in this action); however, I must specify that I recorded the following note in that judgment:

“Note by Judge Rueda Leal. In the sub iudice, I clarify that, separately from my dissenting vote, although I share the Majority's criterion regarding dismissing the claims formulated by the complainant parties, it seems fundamental to set forth the following particular precisions regarding the reasoning to arrive at such a conclusion.

1- Regarding judgment No. 2018005758 of 3:40 p.m. on April 12, 2018, cited in the main vote.

This resolution is constantly cited in the main pronouncement of this process, thus I consider it opportune to point out what I recorded on that occasion:

“XXII.- Note by Judge Rueda Leal. Concerning the publicity of the substitute text of September 13, 2016, I concur with the majority vote, since in accordance with reiterated constitutional jurisprudence – which I entirely deem inappropriate to exclude (2017-019636, 2017-003262, 2016-018351, 2016-012413, 2015-001240, 2014-018836, 2012-013367, 2014-003969, 2013-013344, 2012-017705. 2012-015840, 2012-002675, 2011-015968, 2011-015655, 2011-014966, 2011-012611, 2011005274, 2011-005268, 2011-000992, 2011-000905, 2010-016202, 2010-012026, 2010-007630, 2000-010136, among many other judgments) –, facultative consultations of constitutionality are restricted to analyzing what is specifically questioned by the consultants, without the Chamber, in this procedural avenue, extending constitutional control motu proprio to other topics. Thus, regarding the claim raised, the reasoning outlined in this pronouncement responds to the cited jurisprudential line and proves correct, which I subscribe to.

On the other hand, I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited in the face of public interest reasons that are supported by technical studies, such as the very viability of the regime or fund, as long as such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides the fact that one cannot fail to note the essential differences between the historical moment when it was agreed upon (year 1952), and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered in the interest of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center of the UCR, life expectancy at birth in Costa Rica is 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman dropped from 6.46 in 1952 to 1.83 in 2010. ( http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html ). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica is 60.58 years in 1960 and reaches 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica is 6.5 children in 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR )”.

2.- Regarding the unsustainability of the Pension and Retirement Regime of the Judicial Branch and the need to reform it.

In this regard, I note that, faced with the imminent insolvency problem of the Pension and Retirement Regime of the Judicial Branch, the legislator was obliged to take the necessary measures to guarantee its sustainability. Likewise, it is fundamental to consider that the principles of sustainability and social solidarity are inherent in every social pension regime, so they must be weighed when assessing the constitutionality of the provisions that reformed the regime. In that sense, I reiterate my dissenting vote to judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018 (which I also cited in my dissenting vote to judgment No. 2020019274 of 4:30 p.m. on October 7, 2020):

“Dissenting vote of Judge Rueda Leal. With the customary respect, I dissent on three specific points, as I express below.

Regarding the nature of the pension or retirement, I stated the following in judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018:

“…I clarify that the right to a pension is a subjective right conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited in the face of public interest reasons that are supported by technical studies, such as the very viability of the regime or fund, as long as such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides the fact that one cannot fail to note the essential differences between the historical moment when it was agreed upon (year 1952), and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered in the interest of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center of the UCR, life expectancy at birth in Costa Rica is 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman dropped from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica is 60.58 years in 1960 and reaches 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica is 6.5 children in 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” The legal nature of this type of retirement or pension – which is not one of individual capitalization – is derived from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:

“ARTICLE 50.- The State shall procure the greatest well-being for all the country's inhabitants, organizing and stimulating production and the most adequate distribution of wealth. (…)

ARTICLE 74.- The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others derived from the Christian principle of social justice and indicated by law; they shall be equally applicable to all factors concurrent to the production process, and regulated in social and labor legislation, in order to procure a permanent policy of national solidarity.” As stated, this constitutional normative has been developed by the Chamber to delineate the principle of solidarity. A good example of that development is the following:

“III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily entails the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop integrally by himself alone, but rather requires the participation of all other members of society. In fact, constitutional numeral 50 expressly imposes as one of the fundamental duties of the Costa Rican State the pursuit of an adequate distribution of wealth, an objective it cannot achieve without the concurrence of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their possibilities, for the benefit of those who have less. The foregoing is a fundamental right of people occupying lower strata, and a duty for all, mainly those most benefited by the economic system. Wealth in a society is not produced only by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not solely yield in favor of certain social classes. Relating this principle to that of social justice, positivized in ordinal 74 of the Constitution, according to which people must collaborate reciprocally in order to preserve the human dignity of all members of the community, we have that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals was above individual interests; this is what is normally known as a social and democratic State of Law. It could thus be affirmed that solidarity among the members of the collectivity is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense the judgments of this Chamber numbers 1441-92, 5125-93)” (Judgment No. 3338-99 of 6:45 p.m. on May 5, 1999).

Based on these premises, I consider that the analysis of the action of unconstitutionality must be carried out from another perspective, different from the one accepted by the majority vote. Effectively, I verify that the judgment only partially assessed the legal elements relevant to the decision, since it solely concentrated on the reproach of the complainant party, related to the principle of non-retroactivity, without further reflection on the elements necessary for a pension regime to be sustainable and in accordance with the principle of social solidarity. In my opinion, a comprehensive and inclusive analysis of the legal issue raised must be carried out, in order to avoid an inadequate extension of constitutional principles, as happened in this case with the principle of non-retroactivity. In other words, the Chamber should first have analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.

In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it is sustainable and respects the principle of social solidarity. In other words, if the legislator conceived an unsustainable regime, without some type of provision to maintain its budgetary balance, or overtly regressive, then such regime would be unconstitutional specifically regarding such omission for failing to comply with the indicated postulates.

From the above, I derive that the principle of social solidarity and that of the regime's sustainability are inherent in every social pension regime from the moment of its creation and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State of Law.

The need for the regime to be sustainable is not an element available to the legislator, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis that a pension regime could collapse:

“For this Tribunal, only in an extraordinary case – a financial debacle of the State or the respective retirement and pension regime –, duly proven – technical control of determining facts –, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that is not present in this specific case despite the fiscal crisis through which the central government is passing – fiscal deficit exceeding 3% of G.D.P. and which could reach 7% –, since if adequate and effective measures are adopted to reduce the cited deficit in the short term, it is possible to fulfill the constitutional principle of financial balance enshrined in constitutional numeral 176.” In other words, the majority criterion would indeed accept legislation contrary to the principle of non-retroactivity in the event of a "debacle." I consider such a contradiction unnecessary because I start from the premise that sustainability is a principle inherent to every solidarity-based pension regime and obligates its participants – all of them – to contribute to its maintenance. Effectively, the sustainability of the regime permeates the legal nature of the pensions and retirements linked to it. The hypothetical case posed by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the pension or retirement is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the "debacle," then all participants in it will see their claims frustrated. Hence, it is feasible – even necessary – to modify the conditions of all pensions or retirements, provided that the modifications are intended to protect the sustainability of the regime and respect the principles of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of content by a subsequent reform.

I end this argument by noting that constitutional article 34 does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek the repetition of what was paid justly based on the repealed legislation.” 3.- About considerando XV.

In relation to the defect of not having suspended the bill's processing for the period of eight business days according to the special procedure, I warn that I certainly subscribed to judgment No. 2012004621 of 4:00 p.m. on April 10, 2012, in which "The duty of the various legislative instances to adhere, jealously and scrupulously, to the specially designed procedure (...) Consequently, faced with a special and rapid legislative procedure, the previously established periods, stages, and requirements must be the object of a restrictive and rigorous interpretation, and the margin of admissible flexibility when compared to ordinary procedures, through extensive interpretations, decreases notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by a qualified majority.” (Highlighting does not correspond to the original). Precisely, the fact that the referred margin decreases notably does not mean there is no margin at all.

Now, in the sub lite, according to the reasoning of the majority vote, the defect is not of such magnitude as to support a lack of constitutional relevance, with which I agree, since, I reiterate, even in the special procedures in question, although with less room, constitutional review always makes possible a distinction between substantial defects and those that are not.

**4.- With respect to consideranda XLV, XLVI y XLVII.** Regarding the nature of the special, solidarity and redistributive contribution, the final wording of the majority vote cites case law according to which it is not equivalent to a tax, and concludes that it is a constitutionally valid limitation on the right to retirement, arising from the social character of that right. It then mentions that it is not a tax, but a parafiscal charge. It also indicates that, as a contribution to social security, it is a parafiscal contribution imposed by the State in the exercise of its power of imperium, which can only be created through a formal law. Likewise, it points out that it is a tax destined for an economic and social purpose.

In this regard, I must mention that, for the purposes of this action of unconstitutionality, my position is that the special, solidarity and redistributive contribution is of a parafiscal nature and constitutes a type of tax. Precisely, it is obligatory payment for those who fall within the assumption of the norm and, in accordance with numeral 236 bis of the Ley Orgánica del Poder Judicial, the resources obtained from it are entered into the Fondo de Jubilaciones y Pensiones del Poder Judicial, that is, into the same fund to which the taxpayers belong. Furthermore, this type of contribution must be legally enabled, so the Asamblea Legislativa is competent to establish the tax and define its elements.

On the other hand, although it is alleged that there is double taxation with the general contribution and the special, solidarity and redistributive contribution, I clarify that the latter progressively taxes only the highest pensions and retirement benefits, with which it is intended to give sustainability to the regime to which they belong. In that sense, I consider that a priori it is not a case of double taxation, but rather the establishment of an additional tax burden on those with greater economic capacity. Although both figures form part of the income of the Fondo de Jubilaciones y Pensiones del Poder Judicial, it is no less true that they are based on different assumptions: on the one hand, there is the general contribution of the pensioner or retiree to the regime and, on the other, the contribution that must be paid by those with the highest pensions. In this regard, numeral 71.1 of convention C102 of the ILO -Convenio sobre la Seguridad Social (norma mínima)- establishes that the cost of the benefits granted in application of that convention and the administrative expenses thereof "shall be collectively financed by way of contributions or taxes, or by both means jointly, in a manner which avoids hardship to persons of small means and takes into account the economic situation of the Member and of the categories of persons protected". In other words, that international instrument enables the financing of the regime by two means simultaneously, so that those with lower incomes are not burdened with overly onerous charges. Ergo, it is appropriate, besides the general contribution of workers and pensioners, to impose a parafiscal tax burden destined to tax only the highest pensions and retirement benefits that were granted in light of prior, much more beneficial conditions.

In addition, I must clarify that, for the purposes of varying the conditions of a pension regime and assigning special contributions to correct some situation of insolvency, it is indeed necessary to demonstrate, through technical studies, the insolvency thereof and the suitability of the corrective measures. The foregoing is essential, unless it concerns benefits provided for in rules that are absolutely and manifestly unconstitutional, in which case the magnitude of the defect merits the suppression of the provision without recognizing rights. In this sense, legal provisions that are blatantly unlawful from their base cannot be perpetuated, for example, such as a lifetime pension to the sons and daughters of legislators or receiving absurd and exorbitant benefits. In these latter assumptions, I have affirmed that their effects should precisely be considered as non-existent for the legal system from the very moment of their creation. On this topic, I gave different reasons in judgment No. 2020019274 of 16:30 hours on 7 October 2020, in these terms:

"**V.- Different reasons regarding the substantive claims related to laws No. 9381 and 9388.** Prior to addressing the arguments on the merits, it is important to be clear that these norms eliminate the 30% annual increase that a restricted group of pensioners had been enjoying, and replace it with one based on the increase in the cost of living. Precisely, the crux of the matter consists in defining whether such a reform is in accordance with Constitutional Law.

In the first place, I consider that the 30% annual increase enjoyed by some persons under the regime known as Hacienda-Diputados, in itself signifies a gross and impossible-to-justify abuse, an injury to the constitutional order of such overwhelming magnitude, that from its very genesis it constitutes what I call "a non-existent legal norm" for reasons of unconstitutionality, in mutatis mutandi application of the doctrine of the non-existent legal act for reasons of legality, a position held by a relevant sector of legal science.

As occurs in the sub examine, thanks to the particular gravity of the violation of the constitutional order with respect to the especially excessive privilege conferred upon a determined group (nothing less than a 30% annual increase in pensions without any consideration of the state of the economy and the real value of the conferred pension), I consider that we are not facing the mere nullity of a regulation due to a common jurisdictional declaration of unconstitutionality, but rather that, in this extraordinary situation, the re-establishment of the constitutional order demands a much more drastic action than simple nullity. Non-existence designates a profoundly gross unconstitutionality of the challenged norm (even, in another process it could refer to an act), an extreme degree of nullity for reasons of unconstitutionality from which the absence of an essential element is noted at the very moment of the norm's emergence that is the object of the action.

Precisely, due to that extreme defect in the very genesis of the norm, it is inappropriate to preserve the effects derived from the manifestly unconstitutional legal provisions, unreasonable and lacking any justification, such as the economic favors granted against the most basic elements of social justice and the sustainability of a pension regime. These are provisions that are blatantly unconstitutional at their base, whereby the excessive privileges granted by them must be considered as legally non-existent.

The foregoing becomes even more evident and notorious in view of the harsh economic reality of the country and the conditions of the other regimes. Hence, a legal reform that changes that fixed revaluation method for one sustained on objective criteria, such as the increase in the cost of living, not only corrects an excessive and definitively unconstitutional privilege due to violation of the principle of sound management of public funds, but also contributes to social justice.

Following the same line as my dissenting vote in judgment No. 2018-19030 of 17:15 hours on 14 November 2018 (which I cited supra) and the reasoning I developed above regarding the principle of non-retroactivity, I consider that sustainability is a principle inherent to any solidarity-based pension regime. Hence, I consider constitutionally valid, in accordance with the principle of social solidarity, the imposition of burdens and the modification of the conditions of the highest pensions or retirement benefits, provided that the adjustments have the purpose of safeguarding the sustainability of the pension regime and, in addition, both the principle of reasonableness and proportionality, and the fundamental right to human dignity of older adults are respected. Note that, as a matter of principle, it is valid that, through a mechanism for increasing a pension or retirement benefit, the beneficiary's pension maintains its value in real terms in relation to purchasing power and the vicissitudes over time, but not that the pension or its increase methodology serve as an instrument to unjustifiably and capriciously enrich a few persons.

In the sub lite, it cannot be unreasonable or disproportionate to eliminate a grotesque and excessive privilege such as was the 30% annual increase. On the contrary, what is entirely unreasonable and disproportionate is to safeguard an increase of such magnitude for a restricted group of persons. It is important to emphasize that, concerning the pension amounts, as I indicated in the previous considerando, the legislature, through other norms, established minimums exempt from the special contributions and a gradual scale of progressive impact, which, from my perspective, guarantees more than dignified amounts for older adults, especially in the cases of those who benefited from 30% annual increases over time and have the highest pensions. In that sense, if the laws that modify the legal situations of the beneficiaries safeguard the dignity of the person while being proportional, reasonable, and justified, a supposed immutability of the legal order by resorting to consolidated legal situations becomes unsustainable, since these must yield before the principles of social solidarity and sound management of public funds. Based on the foregoing, the legislature has freedom to regulate the readjustment mechanisms for the pensions of regimes that are in a sustainability crisis or grant openly disproportionate and grotesque privileges".

Likewise, I must specify that, as I recorded in my dissenting vote to considerando XLI of this pronouncement, the 50% bounded by the Majority as a maximum limit of contributions and deductions was based on a forced interpretation of numeral 71.2 of convention C102 of the ILO, since article 67 of that international instrument is the one that applies to pension reductions.

In this sense, ordinal 71.2 regulates:

"2. The total of insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their wives and children." To determine whether this condition is met, all benefits provided by the Member, in application of this Convention, may be considered together, with the exception of family benefits and, in the case of employment injury (accidentes del trabajo) and occupational diseases (enfermedades profesionales), if the latter fall under a special branch." For its part, Article 67 of the convention provides:

"Article 67 With respect to any periodic payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or a rule set by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed substantial sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other family resources, after deducting the substantial sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of benefits paid, for the part in question, exceeds by at least 30 percent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

SCHEDULE ANNEXED TO PART XI.—PERIODIC PAYMENTS TO STANDARD BENEFICIARY:

Consequently, as can be observed from reading the cited articles, the final wording of the Majority unnecessarily changes the legal-normative meaning of Article 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of Article 67 of the international instrument, which specifically regulates the limitations that may be imposed on pensions. In addition, it should be noted that Article 71.2 refers to the percentage of insurance contributions borne by wage earners in relation to the total resources allocated to that protection; that is, this rule regulates "wage earners" (the economically active population), but not "pensioners or retirees." Based on the foregoing, consistent with the line I have been maintaining, it is not evident that Articles 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40 percent barrier of a reference wage, contemplated in Article 67 of ILO Convention C102. Note, furthermore, that the 55% limit set in Articles 236 and 236 bis of the Organic Law of the Judicial Branch is related to the gross amount of the pension, while the conventional 40% is related to a reference wage; therefore, it is in the context of the application of the legal rule where it must be assessed whether, in any specific matter, the barrier contained in the international instrument supersedes the parameter provided in the legislation.

Based on the above, I disagree with the assertion in the final Majority opinion that the contribution is only confiscatory insofar as it exceeds 50% of the charges a person must bear on their pension or retirement, since, as I indicated supra, I believe the parameter is a different one and its automatic and evident transgression is not evident from the content of Articles 236 and 236 bis of the Organic Law of the Judicial Branch.

5.- Regarding recitals L and LI.

In these recitals, it is asserted that contributions cannot exceed 50% of the gross amount of the pension, in accordance with the provisions of judgment No. 2020-19274; however, regarding this point, I reiterate my position that the 55% cap regulated in Articles 236 and 236 bis of the Organic Law of the Judicial Branch is not unconstitutional per se. There, I also addressed the possibility of imposing, in addition to the mandatory contribution to the scheme, a special additional contribution on the highest pensions. Therefore, I refer to the reasoning set out in the previous section concerning these issues.

Now, it is important to mention that Law No. 9544, by adding Article 236 bis, stipulated that the special contribution applied to the excess over ten base salaries of the lowest-paid position in the Judicial Branch (at the time that law came into force, on pensions exceeding ¢4,138,000.00 according to the salary index, see https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).

However, it bears clarifying that subsection a) of this provision was subsequently amended by Law No. 9796 of December 5, 2019, and established the contribution based on the excess over the sum of six base salaries of the lowest-paid position in the Judicial Branch (as of the first half of 2021, on pensions exceeding ¢2,602,800.00 according to the salary index <a href="https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial" style="text-decoration:none"><span style="font-family:'Times New Roman'; font-style:italic; text-decoration:underline; color:#0563c1">https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial</span></a>).

In addition, Law No. 9544 regulated the application of the special contribution in a staggered manner: "a) On the excess over the ceiling established in Article 225 and up to twenty-five percent (25%) of said ceiling, they shall contribute thirty-five percent (35%) of such excess. b) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess over the preceding margin, they shall contribute fifty-five percent (55%)." Hence, the exempt amount and the staggered contribution imposed on pensions exceeding four million colones guarantee sums that are more than dignified for the satisfaction of the needs of retired and pensioned persons, including elderly persons. Likewise, I consider that the special contribution is progressive and gradual on the highest pensions, without this, together with other contributions, charges and deductions, being able to exceed 55% of the total gross amount of the pension. In this regard, not only was it not demonstrated that the pension amount prevented pensioned persons from living with dignity or was insufficient, but, moreover, it falls within the scope of the application of the legal norm to assess whether, in a specific matter, the barrier set forth in the international instrument (paragraph 67 of Convention C102 of the ILO) overrides the parameter established in the legislation.

I also reiterate that the special contribution imposed on the highest pensions constitutes a measure consistent with the principle of social solidarity and, furthermore, is reasonable in light of the imminent insolvency problem faced by the Pension and Retirement Regime of the Judicial Branch.

Lastly, I do not consider that the deduction of five per thousand (5 per 1000) from salaries and pensions allocated to financing the operation of the Administrative Board of the Judicial Branch Retirement and Pension Fund is openly disproportionate or unreasonable. Similarly, if any party considers that it exceeds the maximum limit of quotas, contributions, and deductions, they may file the corresponding claims so that these may be adjusted.

**6.- Regarding Considerando LIV.** Regarding this considerando, I must emphasize that constitutional provision 34 embodies the principle of non-retroactivity and the protection of acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas):

"ARTICLE 34.- No law shall be given retroactive effect to the detriment of any person, or of their acquired property rights or consolidated legal situations." In relation to what is regulated in this article, the Chamber stated in Judgment No. 2765-97 of 3:03 p.m. on May 20, 1997, "The concepts of 'acquired rights' and 'consolidated legal situations' appear closely related in constitutional doctrine. It is possible to affirm that, in general terms, the first denotes that consummated circumstance in which something – material or immaterial, whether a previously alien good or a previously non-existent right – has entered (or impacted upon) the person's patrimonial sphere, such that the person experiences an advantage or verifiable benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial gain, but a state of affairs fully defined in terms of its legal characteristics and effects, even if these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still persist, but that – by virtue of a legal mandate or a judgment that so declared it – a clear and defined rule has already emerged in legal life, connecting a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then...', that is to say: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that the conditioned effect must necessarily also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects – making it intangible – the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty." In this regard, it seems important to me to specify that the sums received before the entry into force of Law No. 9544 do constitute acquired rights and, in fact, the contested rules do not affect them, as they have already entered the patrimonial legal sphere of the pensioned persons. However, it is improper to maintain that the pensions they have received constitute an acquired right to receive the same amount in future months, since they are not consummated circumstances and, evidently, have not yet entered the person's patrimonial sphere.

Now, regarding the alleged transgression of consolidated legal situations, although, as a principled thesis, the conditions under which persons were pensioned or retired must be respected, this does not mean that the highest benefits cannot be subject to progressive tax burdens intended to correct an insolvency situation of the regime and thus contribute to its sustainability. Likewise, the change in the conditions for opting for retirement for active officials is not illegitimate either, because they only have a mere expectation of a pension or retirement, except when they are about to acquire the right (within the following 18 months, as endorsed by the jurisprudence of the Chamber and indicated in Considerando LXIX of this judgment).

**7.- Regarding Considerandos LV, LVI, LVII, and LVIII.** In these considerandos, the allegations of the plaintiff parties are addressed insofar as they accuse that the application of provisions 236 and 236 bis of the Organic Law of the Judicial Branch to retired elderly persons and beneficiaries of the Judicial Branch Retirement and Pension Regime is abusive and arbitrary, since it worsens their socioeconomic conditions and has entailed an abrupt decrease in their income, which violates national and international regulations concerning the protection of the elderly, their right to quality of life, and to enjoy a dignified old age.

Concerning these points, I refer to the considerations developed by my person in the previous points relating to general and special contributions, as well as to other charges. I reiterate that the 50% limit set by the Majority as the maximum limit for contributions and deductions was based on a forced interpretation of paragraph 71.2 of ILO Convention C102, since Article 67 of that international instrument is the one that applies to reductions in pensions. In that sense, there is no evidence that provisions 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40% barrier of a reference salary, contemplated in paragraph 67 of ILO Convention C102. Note, furthermore, that the 55% limit, set in Articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross amount of the pension, while the conventional 40% relates to a reference salary, which is why it is within the scope of the application of the legal norm where it must be assessed whether, in a specific matter, the barrier contained in the international instrument overrides the parameter provided for in the legislation.

Furthermore, it is unfounded to assert that the contested provisions violate the international protection enjoyed by elderly persons, since not only are measures being taken to safeguard the sustainability of the regime, but also, in principle, a sufficient income is being guaranteed to pensioned and retired persons. In this sense, I reiterate that the amount exempt from the special contribution and its staggered levy on pensions exceeding four million colones contemplates sums that are more than dignified for the satisfaction of an elderly person's needs.

**8.- Regarding Considerando LXX.** As for my criterion for considering inadmissible the claim for a declaration of unconstitutionality by connection of Law No. 9796 of December 5, 2019, I limit my argumentation to the reasoning set out in the majority vote, with the exception of what is raised in the last paragraph, since the non-fulfillment of the budgetary requirement of cited Article 89 constitutes a more than sufficient reason to dismiss this part of the action.

**9.- Concerning Considerando LXXX.** In relation to this considerando, I clarify that determining whether or not there were changes in the employment contracts of Judicial Branch officials is a matter that should be ventilated through ordinary channels, and not in an unconstitutionality action".

Hence, based on such precisions made in my note, and without sharing anything that contradicted it, or that was based on judgments No. 2020-19274 of 4:30 p.m. on October 7, 2020, and 2024006250 of 4:30 p.m. on March 6, 2024, I agree with the dismissal of the alleged violations of double taxation, as well as of the principles of non-retroactivity; legal certainty; equality; reasonableness and proportionality; and solidarity. Finally, I share the reasoning set forth in the judgment of this action, regarding the lack of argumentation by the plaintiff not only on the supposed violation of the principles of solidarity and reasonableness and proportionality, but also as to the alleged lack of technical studies.

**Therefore:** By majority, the unconstitutionality action is partially granted. Consequently, the quota percentage and the special contribution established in section 5 of Law No. 9796 are annulled insofar as they exceed 50% of the gross pension amount corresponding to the retired or pensioned person of the Judicial Branch regime. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, to avoid serious disruptions to security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution so that, starting from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in conformity with this judgment, such that the tax burden weighing on the amount of retirement and pension sums does not exceed 50% of the gross amount received by the retired or pensioned person. In all other respects, the unconstitutionality action is dismissed. Judge Rueda Leal issues a dissenting vote and dismisses the action in its entirety, because, according to the express text of Article 67 of ILO Convention No. 102 of 1952 denominated 'Social Security (Minimum Standards) Convention', the pension or retirement can be reduced provided that 40% of a reference salary is respected, which is not shown to be automatically and evidently violated by the content of Article 5 of Law No. 9796. Let this ruling be communicated to the Legislative and Judicial Branches, as well as to the Administrative Board of the Judicial Branch Retirement and Pension Fund. Let this ruling be recorded in the Official Gazette La Gaceta and published in full in the Judicial Bulletin. Notify.- **Fernando Castillo V.** **President** **Paul Rueda L.** **Luis Fdo. Salazar A.** **Jorge Araya G.** **Aracelly Pacheco S.** **Huberth Fernández A.** **Ana Cristina Fernández A.** --- [1] As will be explained *infra*, this percentage should be read as 50%, as ordered by this Chamber in Vote No. 2021-11957 at 5:00 p.m. on May 25, 2021.

TRIBUTARY. SOLIDARITY CONTRIBUTION LAW.

Judgment: 028000-24 of September 26, 2024 Type of matter: Acción de inconstitucionalidad Challenged norm: Articles 1, 2 subsection d), 3, 4 subsection b), 5, and 7 of Law No. 9796 of December 5, 2019. Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria Operative part: By majority, the acción de inconstitucionalidad is partially granted. Consequently, the contribution rate and the special contribution established in Article 5 of Law No. 9796 are annulled insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired person or pensioner of the Judicial Branch regime. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber adjusts and dimensions the effect of this resolution, so that, starting from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in conformity with this judgment, in such a way that the tax burden on the amount of the pensions does not exceed 50% of the gross amount received by the retiree or pensioner. In all other respects, the acción de inconstitucionalidad is dismissed. Magistrate Rueda Leal issues a dissenting vote and dismisses the action in all its aspects, because, according to the express text of Article 67 of Convention No. 102 of the ILO of 1952 called "Social Security (Minimum Standards) Convention," the pension may be reduced provided that 40% of a reference wage is respected, which it is not evident has been automatically and evidently transgressed by the content of Article 5 of Law No. 9796. Communicate this pronouncement to the Legislative and Judicial Branches, as well as to the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial. Summarize this pronouncement in the Diario Oficial La Gaceta and publish it in its entirety in the Boletín Judicial. Notify.- ANALYZED ISSUES LEGITIMATION AND ADMISSIBILITY OF THE PRESENT ACCIÓN DE INCONSTITUCIONALIDAD ON THE COADYUVANCIAS ON THE REASONS THAT GAVE RISE TO LAW NO. 9796 AND THE TEXT OF INTEREST FINALLY APPROVED ON THE RIGHT TO RETIREMENT AND THE CONSTITUTIONALITY OF SOLIDARITY CONTRIBUTIONS, ESPECIALLY, WITH REGARD TO THE JUDICIAL BRANCH PENSION REGIME.

ON THE CURRENT OBLIGATION OF CONTRIBUTION BY JUDICIAL BRANCH RETIREES, THE MAXIMUM CAP OF 55%, AND WHAT HAS BEEN RULED ON THIS MATTER BY THIS CONSTITUTIONAL CHAMBER.

ON THE VIOLATION OF RIGHTS TO RETIREMENT AND SOCIAL SECURITY.

REGARDING THE CONFISCATORY NATURE OF THE PENSION AMOUNT ON THE CLAIM OF DOUBLE TAXATION FOR THE SAME PURPOSE CONCERNING THE ALLEGED BREACH OF THE PRINCIPLE OF NON-RETROACTIVITY TO THE DETRIMENT AND CONSEQUENTLY THE PRINCIPLE OF LEGAL CERTAINTY.

REGARDING THE ALLEGED VIOLATION OF THE PRINCIPLE OF EQUALITY.

ON THE SUPPOSED VIOLATION OF THE PRINCIPLE OF REASONABLENESS AND PROPORTIONALITY.

CONCERNING THE ALLEGED INFRACTION OF THE PRINCIPLE OF SOLIDARITY.

REGARDING THE ALLEGED LACK OF TECHNICAL STUDIES CO04/25 XII.- DISSENTING VOTE OF JUDGE RUEDA LEAL. In the sub examine, the majority partially grants the action and "annuls the contribution percentage and the special contribution established in section 5 of Law No. 9796 to the extent they exceed 50% of the gross pension amount corresponding to the retired or pensioned person of the Judicial Branch regime." In this regard, I partially dissent from the vote with respect to this point and declare it without merit, since, according to the express text of Article 67 of ILO Convention No. 102 of 1952, called 'Social Security (Minimum Standards) Convention,' the pension or retirement benefit may be reduced provided that 40% of a reference wage is respected.

On this matter, the principal judgment in this proceeding bases the aforementioned unconstitutionality ut supra on the decision in judgment No. 2021-11957 at 5:00 p.m. on May 25, 2021, which ordered: "(…) By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez), the contribution percentage and the special solidarity and redistributive contribution are annulled to the extent they exceed 50% of the gross pension amount corresponding to the retired or pensioned person. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber calibrates and dimensions the effects of this ruling, so that, starting the month following notification of the judgment, the competent authorities must make the corresponding adjustment in accordance with this judgment, such that the tax burdens on the amount of retirement and pension benefits do not exceed 50% of the gross amount received by the retiree or pensioner." Nevertheless, I separated from that criterion in the following terms:

"**Dissenting vote of Judge Rueda Leal regarding considering XLI.** In the sub examine, the unconstitutionality of Law No. 9544 is challenged, to the extent it reformed section 236 of the Ley Orgánica del Poder Judicial and added section 236 bis to that normative body. It is reproached that both sections established a maximum cap of 55% on deductions with respect to the gross retirement amount, which is deemed excessive and contrary to the fundamental right to retirement.

The challenged provisions have the following content:

"Article 236- The Judicial Branch Retirement and Pension Fund shall have the following income:

• 1)A worker contribution of thirteen percent (13%) of the salaries earned by judicial servants, as well as of the retirement and pension benefits payable by the Fund, a percentage to be withheld from the corresponding periodic payment.
• 2)An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the salaries and wages of its servants.
• 3)A State contribution that shall be a percentage of salaries and wages equal to that established for the Disability, Old Age, and Death Regime of the Caja Costarricense de Seguro Social (CCSS).
• 4)The yields and other benefits that the Fund produces or may generate or obtain.

Under no circumstances may the sum of the mandatory contribution and the special, solidarity, and redistributive contribution, and, in general, the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund, represent more than fifty-five percent (55%) of the total gross pension amount that rightfully corresponds to the beneficiary. In cases where this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross pension amount.

The resources obtained from the mandatory contribution established in this law shall be deposited into the Judicial Branch Retirement and Pension Fund.

Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees In addition to the general contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be fixed shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess above the cap established in Article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess above the previous margin and up to a further twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess above the previous margin and up to a further twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess above the previous margin and up to a further twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess above the previous margin, they shall contribute fifty-five percent (55%).

Under no circumstances may the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%) of the total gross pension amount that rightfully corresponds to the beneficiary. In cases where this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross pension amount.

The resources obtained from the special, solidarity, and redistributive contribution established in this law shall be deposited into the Judicial Branch Retirement and Pension Fund." Regarding the maximum percentage of deductions from pensions, the Majority's vote partially transcribes the provisions of judgment No. 202019274 at 4:30 p.m. on October 7, 2020. Additionally, it indicates that sections 236 and 236 bis of the Ley Orgánica del Poder Judicial (reformed by the challenged Law No. 9544) are unconstitutional, since both establish 55% as the maximum cap on legal deductions, which exceeds by 5 percentage points the maximum established in the cited ruling. Likewise, it annuls the contribution percentage and the special contribution to the extent it exceeds 50% of the gross pension amount corresponding to the retired or pensioned person.

However, I respectfully depart from the Majority's criterion and declare the appeal without merit based on the following reasoning.

As I indicated in my dissenting vote to judgment No. 202019274 at 4:30 p.m. on October 7, 2020, the percentage established by the Majority as the maximum limit for contributions and deductions (50%) was based on a strained interpretation of subsection 71.2 of ILO Convention C102, since Article 67 of that international instrument is the one that applies to reductions in pensions. On that occasion, I stated:

**"III.- Dissenting vote regarding the substantive claims related to Laws Nos. 9380 and 9383.** The legal premise of the majority vote, upon which most of its argumentative line is based, assumes that Article 71.2 of the 1952 ILO Convention C102 -Social Security (Minimum Standards) Convention- is applicable to pensioners and retirees. That provision states:

"2. The total of insurance contributions borne by the protected employees shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their spouses and children. In order to determine whether this condition is met, all the benefits provided by the Member in application of this Convention may be taken together, except family benefits and employment injury benefits, if these latter are furnished by a special branch." Since the provision refers to "employees," the majority is forced to specify the meaning of that term, since it evidently refers only to active workers. In this regard, the principal vote in this proceeding states:

"It would remain to be determined whether 'employee' means only the worker before acquiring the right to a pension due to the advent of the formal and substantive conditions of the right, or whether it is possible to understand that employee also refers to another type of system beneficiary. In the Chamber's view, a broader interpretation must be given that includes not only (sic) the active worker, to admit that, in effect, the pensioner or retiree would be included in this concept. Indeed, though anticipating what will be said later, this position is compatible, from a legal and economic standpoint, in that the pensioner or retiree receives a deferred salary that they built with their contributions throughout their working life. Moreover, one cannot fail to consider that, in the document of the Committee of Experts, the concept of employees evolves when referring to 'insured persons.' Thus, said concept must be assimilated to both obligated parties, as potential and current insured persons: pensioner and employee. Note that the cited study emphasizes that there is no straitjacket imposed on the States; on the contrary, the approach must respond to national contexts, and the evolution of the systems to agree on a solidary financing and good governance system within the framework and evolution of human rights cannot be ruled out, as will be discussed below. If the provision seeks to achieve a balance, it is perfectly reasonable that it should include all those who receive a pecuniary sum resulting from the agreed benefit, for in that sense, it distributes that burden among all participants, which is what the international provision actually seeks to establish. This interpretation would relate positively to the Committee of Experts, already cited. Consequently, it must be understood that 'employee' or 'insured person' has a broad meaning, and that it is not a term that excludes pensioned or retired persons." Based on the foregoing, the Chamber, in the principal vote, concludes that Laws Nos. 9380 and 9383 infringe the second paragraph of section 71 of ILO Convention No. 102 by establishing a cap higher than 50%. Likewise, the majority considers that the excess of 5% set by the legislature implies a violation of the hard core of the right to retirement or a pension, insofar as the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the above, the undersigned dissents from this hermeneutics, because it is based on an erroneous premise stemming from a technical confusion in basic legal concepts.

First, subsection 71.2 of the 1952 ILO Convention C102 -Social Security (Minimum Standards) Convention- refers to the percentage of insurance contributions borne by employees in relation to the total of resources allocated to that protection.

For example, in the case of Costa Rica, the salaried worker, in accordance with the referenced rule, should never contribute to the Caja Costarricense de Seguro Social more than 50% of the total resources allocated to the protection of salaried workers and their spouses and children, that is, of the total resources financed through the remaining contributions (from the employer and the State).

Now, it is unquestionable that the express text of the convention's rule regulates "salaried workers"; that is, the economically active population, without it being possible to validly infer from any ILO study the conclusion reached by the majority that it also applies to "pensioners." The most serious aspect of the foregoing is that the Chamber, through case law, alters the positive text of a conventional rule ratified by Costa Rica through the competent bodies. In this way, it changes the legal-normative meaning of the provision contained in the international instrument with the purpose of forcibly adapting it to the specific case, which notoriously deals with a matter outside the subject of the sub lite —the salary—, thus ignoring the existence of other rules of the ILO convention, which punctually and specifically regulate matters concerning pensions and the limitations that can validly be imposed on them for the sake of financial stability and social solidarity of the system.

In this regard, Part XI “Calculation of periodic payments” contains the following provision:

“Article 67 With respect to any periodic payment to which this article applies: (a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule set by the competent public authorities, in conformity with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary’s family exceed appreciable prescribed sums or sums fixed by the competent authorities, in conformity with prescribed rules; (c) the total of the benefit and the other resources of the family, after deducting the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of benefits paid, for the part in question, exceeds by at least 30 percent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions: (i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

SCHEDULE ANNEXED TO PART XI.- PERIODIC PAYMENTS TO THE STANDARD BENEFICIARY

Man with spouse and two children | &nbsp; | Disability | Man with spouse and two children | 50 | | &nbsp; | Survivors | Widow with two children | 40 | | VIII | Maternity | Woman | 45 | | IX | Disability | Man with spouse and two children | 40 | | X | Survivors | Widow with two children | 40 | *(The highlighting is not in the original).* &nbsp;&nbsp;*Ergo, according to the literal and explicit text of the Convention, in order for the old-age pension to be reduced and, in this way, in principle ensure healthy and decent living conditions for the family, such benefit must reach at least 40 percent of a reference salary.* *Regarding this point, there is indeed an ILO study.* Precisely, in the International Labour Conference, 76th Session, 1989, "Old-age protection through social security, general survey of the Committee of Experts on the Application of Conventions and Recommendations," it was stated:

"Level of benefits 130. By virtue of the schedule annexed to Part XI of Convention No. 102 relating to periodical payments, **the old-age benefits for a standard beneficiary—a man with a wife of pensionable age—must attain 40 percent of a reference wage**. This percentage is raised to 45 percent in the schedule annexed to Part V of Convention No. 128. Both percentages may, however, be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into consideration by the Conventions (paragraphs 1, 3 and 4, Article 29 of Convention No. 102 and paragraphs 1, 3 and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 percent (paragraph 22), and recommends in its paragraph 23 that national legislation should fix the minimum amount of old-age benefits in order to ensure a minimum standard of living." (The emphasis does not correspond to the original).

Thus, I consider that the premise from which the majority opinion proceeds is false, so the conclusions derived from it are inexorably erroneous.

Now, the single article of Law No. 9380 of July 29, 2016, titled "Contribution percentage of pensioners and active servants for special pension regimes," regulates:

"In no case may the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." On its part, section 3 in fine of Law No. 9383 of July 29, 2016, titled "Framework Law on the special contribution of pension regimes," establishes:

"In no case may the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." This limit of 55% of the total gross amount of the pension is, in principle, compatible with Convention 102 of the ILO, since it is not inferred from the arguments of the claimants that its application automatically transgresses the 40% barrier relative to a reference wage in the terms of Article 67 of that international instrument. In that sense, such a reference wage, in the case of Costa Rica, could refer to the average of wages used to calculate the amount of a person's pension, which is in accordance with section 65 of that regulation. It should be noted that the 55% parameter of the challenged laws is related to the gross amount of the pension, while the conventional 40% relates to a reference wage, meaning these are limits that are employed differently. Consequently, it will be in the realm of the application of the legal norm that it must be assessed whether, in some specific matter, probably concerning very high pensions, the conventional barrier is superimposed on the legal parameter.

In addition, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Dirección General de Servicio Civil) and the 55% limit on deductions from the highest pensions (contemplated by both Law No. 9380 and Law No. 9383) subjected to a gradual scale of assessment, guarantee more than adequate pensions for older adults. In the foregoing sense, I do not observe arguments demonstrating that the staggered contribution and the imposed burdens are openly unreasonable or affect the core of the pension right, and I therefore dismiss any manifest impairment to the human dignity of the beneficiaries.

Regarding the foregoing, it is not possible to affirm that the challenged provisions transgress the international protection enjoyed by older adults, since they are not only guaranteeing the sustainability of the regime but also a sufficient income to reasonably satisfy a decent standard of living.

Thus, I consider that, with the elements presented in the case file, Laws No. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they transgress the special protection enjoyed by older adults.

Likewise, even though a violation of the principle of administrative responsibility is alleged, it is no less true that the challenged norms do not exempt public agencies from responsibility when they cause harm to individuals, and I therefore dismiss this claim prima facie.

(...)

In the sense expressed, if a pension financed largely or totally with public funds is unreasonably high (with disproportionate amounts and increases), it is justified that through laws the adjustment of such benefits be sought in order to safeguard the right to a dignified existence for **all** pensioned persons. As long as the imposition of contributions and charges on old-age pensions and retirements respects the conventionally established percentage (Article 67 of ILO Convention 102), no transgression of the Law of the Constitution would exist a priori. It must be taken into consideration that, as the majority of the Chamber accepts, the country's economic situation is complicated and the sustainability of the pension regime is compromised, so that, in light of the principle of social solidarity, it is essential that those in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood from the standpoint of solidarity with the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of persons. For this reason, precisely, it is not considered contrary to the principle of non-retroactivity to increase the contribution amounts of pensioned or retired persons, provided that the guarantees and limits set out in this dissenting opinion are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights relating to the right of persons to lead a dignified life in their old age, and considers that the 40% percentage, contemplated in section 67 itself of ILO Convention 102, is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectations. However, as I indicated supra, the norm of the international instrument that is applicable to the specific case is precisely that Article 67, endorsed by the ILO, and not subsection 71.2, as it is forcibly interpreted by the majority in the principal judgment.

Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scale issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2,602,500.00 in the first half of 2017) and the 55% limit on deductions from the highest pensions (which both Law No. 9380 and Law No. 9383 contemplate) subject to a gradual scale of impact on larger pensions, guarantee more than dignified pensions for older adults.

Finally, even though there are ILO recommendations suggesting half of the salary as a pension in cases where thirty effective years of contributions are proven, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose mandatory nature is unquestionable) does expressly contemplate a percentage that must be respected for pension purposes in old-age cases (40% of a reference salary), hence the direct application of the international instrument is appropriate in the sub lite.

Based on the foregoing, I declare the actions without merit as they relate to Law Nos. 9380 and 9383.” Precisely, in accordance with the interpretive approach set forth above, the provision of ILO Convention C102 applicable to this type of matter is Article 67, and not numeral 71.2.

In this regard, articles 67 and 71.2 state:

“Article 67 With respect to any periodic payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule fixed by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other resources of the family, after deducting the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of benefits paid, for the part in question, exceeds by at least 30 percent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

ANNEX TABLE TO PART XI.- PERIODIC PAYMENTS TO THE STANDARD BENEFICIARY

(…)

"Article 71 (Artículo 71).

(…)

2.

The total insurance contributions payable by protected employees shall not exceed 50 percent of the total resources allocated to the protection of employees and their spouses and children. In order to determine whether this condition is met, all benefits provided by the Member in application of this Convention may be considered together, with the exception of family benefits and, in the case of employment injuries and occupational diseases, if the latter fall under a special branch”.

As can be inferred from the reading of the cited provisions, the Chamber, in judgment No. 202019274 of 4:30 p.m. on October 7, 2020, unnecessarily altered the legal-normative meaning of provision 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus overlooking the existence of article 67 of the international instrument that specifically regulates matters concerning the limitations that may be imposed on pensions. Note also that article 71.2 refers to the percentage of insurance contributions payable by employees in relation to the total resources allocated to that protection; that is, that provision regulates “employees” (the economically active population) and not “pensioners or retirees”.

Based on the foregoing, and consistent with the line I have maintained, I dismiss these arguments, since there is no evidence that articles 236 and 236 bis of the Organic Law of the Judicial Branch cited above automatically exceed the 40% barrier of a reference wage (salario de referencia), established in article 67 of ILO Convention C102. It should be noted that the 55% parameter in the challenged laws refers to the gross amount of the pension, whereas the conventional 40% refers to a reference wage (salario de referencia); therefore, it is up to the scope of application of the legal provision to assess whether, in any specific matter, the barrier established in the international instrument supervenes the parameter set in the legislation. Consequently, I do not observe arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right.” In addition, in resolution No. 2020-19274 of 4:30 p.m. on October 7, 2024 (also cited by the majority as a basis for the grant), I issued, in the pertinent part, the following dissenting opinion:

“**Dissenting Opinion of Magistrate Rueda Leal.** (…)

**III.-Dissenting vote regarding the substantive claims related to Laws No. 9380 and 9383.** The legal premise of the majority vote, on which most of its argumentative line is based, assumes that article 71.2 of ILO Convention C102 of 1952 -Social Security (Minimum Standards) Convention- is applicable to pensioners and retirees. That provision states:

“2. The total insurance contributions payable by protected employees shall not exceed 50 percent of the total resources allocated to the protection of employees and their spouses and children. In order to determine whether this condition is met, all benefits provided by the Member in application of this Convention may be considered together, with the exception of family benefits and, in the case of employment injuries and occupational diseases, if the latter fall under a special branch.” Since the provision refers to “employees”, the majority is forced to specify the meaning of that term, because it evidently refers only to active workers. In that regard, the main vote in this proceeding states:

“It would remain to be determined whether ‘employee’ means only the worker before acquiring the right to a pension upon the occurrence of the formal and substantive conditions of the right, or whether it is possible to understand that employee also refers to another type of beneficiary of the system. In the Chamber’s opinion, a broader interpretation must be given that includes not only the active worker, but also admits that the pensioner or retiree would indeed be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic point of view, in that the pensioner or retiree receives a deferred wage that they built with their contributions throughout their working life. Moreover, one cannot fail to consider that in the Committee of Experts’ document, the concept of employees evolves when it refers to ‘insured persons’. Thus, that concept must be assimilated to both obligors, as potential and current insured persons: pensioner and employee. See that the cited study emphasizes that there is no straitjacket on the States; on the contrary, the approach must respond to national contexts, and the evolution of systems towards agreeing on a solidarity-based financing and good governance system within the framework and evolution of human rights cannot be ruled out, as will be stated below. If the provision seeks to achieve a balance, it is perfectly reasonable that it should include all those who receive a pecuniary sum as a result of the agreed benefit, because in that sense, it distributes that burden among all participants, which is what the international provision truly seeks to establish. This interpretation would positively replicate with the Committee of Experts, already cited. Consequently, it must be understood that ‘employee’ or ‘insured person’ has a broad meaning, and that it is not a term that excludes pensioned or retired persons.” Based on the foregoing, the Chamber, in the main vote, concludes that Laws No. 9380 and 9383 infringe the second paragraph of article 71 of Convention No. 102 of the ILO by establishing a cap greater than 50%. Likewise, the majority considers that the excess of 5% set by the legislator implies a violation of the hard core of the right to retirement or a pension, insofar as the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the above, the undersigned dissents from this hermeneutics, because it is based on an erroneous premise stemming from a technical confusion in basic legal notions.

Firstly, article 71.2 of ILO Convention C102 of 1952 -Social Security (Minimum Standards) Convention- refers to the percentage of insurance contributions payable by employees in relation to the total resources allocated to that protection.

For example, in the case of Costa Rica, the employed person (asalariado), in accordance with the referenced rule, should never contribute to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) more than 50% of the total resources allocated to the protection of employed persons (asalariados) and their spouses and children, that is, of the total resources financed through the remaining contributions (from the employer and the State).

Now, it is undeniable that the express text of the convention’s rule regulates “employed persons” (asalariados); that is, the economically active population, without any ILO study being able to validly infer the conclusion reached by the majority regarding its also applying to “pensioners” (pensionados).

The most serious aspect of the foregoing is that the Chamber, through jurisprudential means, varies the positive text of a conventional rule ratified by Costa Rica through the competent bodies. In this way, it changes the juridical-normative meaning of the provision contained in the international instrument for the purpose of forcibly adapting it to the specific case, which notoriously deals with a matter outside the object of the sub lite -the salary-, thus ignoring the existence of other rules of the ILO convention, which specifically and concretely regulate matters pertaining to pensions and the limitations that may be validly imposed upon them in the interests of the system's financial stability and social solidarity. In this regard, Part XI “Calculation of Periodical Payments”, contains the following provision:

“Article 67 With respect to any periodical payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule fixed by the competent public authorities, in conformity with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other means of the beneficiary's family exceed substantial prescribed sums or sums fixed by the competent authorities, in conformity with prescribed rules; (c) the total of the benefit and of the other means of the family, after deduction of the substantial sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds by at least 30 per cent the total amount of the benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.” &nbsp; TABLE ANNEXED TO PART XI.-PERIODICAL PAYMENTS TO THE STANDARD BENEFICIARY &nbsp;

| I | | | | II | Inability to work | Man with spouse and two children | 50 | | III | | | | | IV | Disability | Man with spouse and two children | 50 | | V | | | | | VI | Survivors | Widow with two children | 40 | | VII | | | | | VIII | Maternity | Woman | 45 | | IX | Disability | Man with spouse and two children | 40 | | X | Survivors | Widow with two children | 40 | *(The highlighting is not in the original).* *Ergo, according to the literal and explicit text of the Convention, for the old-age pension to be reducible and, in this way, in principle ensure the family healthy and adequate living conditions, such benefit must reach at least 40 percent of a reference wage.* *Regarding this point, an ILO study does exist.* Precisely, at the 76th session of the International Labour Conference, 1989, “The protection of old age by social security, general study by the Committee of Experts on the Application of Conventions and Recommendations,” it was stated:

“Level of benefits 130. By virtue of the schedule annexed to Part XI of Convention No. 102 concerning periodic payments, **old-age benefits** for a standard beneficiary – a man with a spouse of pensionable age – **must attain 40 per cent** of a reference wage2. This percentage is raised to 45 per cent in the schedule annexed to Part V of Convention No. 128. Both percentages may, however, be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into consideration by the Conventions (paragraphs 1, 3 and 4, Article 29 of Convention No. 102 and paragraphs 1, 3 and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 per cent3 (paragraph 22), and recommends in its paragraph 23 that national legislation fix a minimum amount for old-age benefits, in order to ensure a minimum standard of living.” (Emphasis not in original).

In this way, I consider that the premise from which the majority vote proceeds is false, so that inexorably the conclusions derived from it are erroneous.

Now, the sole article of Law No. 9380 of July 29, 2016, called “Contribution Percentage for Retirees and Active Public Servants for Special Pension Regimes,” regulates:

“In no case shall the totality of deductions applied to all retirees and pensioners covered by this article, including the corresponding special, solidarity-based, and redistributive contribution, represent more than fifty-five per cent (55%) of the total gross amount of the pension that is rightfully due to the beneficiary. For cases in which this sum exceeds fifty-five per cent (55%) of the total gross amount of the pension, the special contribution shall be readjusted such that the sum equals fifty-five per cent (55%) of the total gross amount of the pension.” On its side, article 3, in fine, of Law No. 9383 of July 29, 2016, called “Framework Law on the Special Contribution for Pension Regimes,” stipulates:

“In no case may the sum of the special, solidarity-based, and redistributive contribution and the totality of deductions applied to all retirees and pensioners covered by this law represent more than fifty-five per cent (55%) of the total gross amount of the pension that is rightfully due to the beneficiary. For cases in which this sum exceeds fifty-five per cent (55%) of the total gross amount of the pension, the special contribution shall be readjusted such that the sum equals fifty-five per cent (55%) of the total gross amount of the pension.” This limit of 55% of the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since, from the arguments of the plaintiffs, it cannot be inferred that its application automatically transgresses the 40% barrier with respect to a reference wage in the terms of Article 67 of that international instrument. In that sense, such a reference wage, in the case of Costa Rica, could refer to the average of wages used to calculate a person’s pension amount, which is in accordance with Article 65 of that regulation. Note that the 55% parameter of the challenged laws is related to the gross amount of the pension, while the 40% conventional parameter is related to a reference wage, such that they are limits that operate differently. Consequently, it will be in the sphere of the application of the legal norm that it must be assessed whether in some specific matter, probably concerning very high pensions, the conventional barrier superimposes itself upon the legal parameter.

In addition, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the General Directorate of the Civil Service) and the 55% limit on deductions for the highest pensions (contemplated by both Law No. 9380 and Law No. 9383) subjected to a gradual scale of charge, guarantee more than dignified pensions for older adults. In the foregoing sense, I do not observe arguments that demonstrate that the staggered contribution and the imposed burdens are openly unreasonable or affect the core of the pension right, for which reason I discard any manifest harm to the human dignity of the beneficiary persons.

Regarding the above, it is not possible to affirm that the questioned dispositions transgress the international protection enjoyed by older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a dignified standard of living.

Thus, I consider that, with the elements provided in the record, Laws Nos. 9380 and 9383 do not prove contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they transgress the special protection enjoyed by older adults.

Likewise, even though a transgression of the principle of administrative responsibility is alleged, it is no less true that the questioned norms do not exempt public agencies from responsibility when they cause some injury to persons, for which reason I prima facie dismiss this allegation.

In relation to the allegation of non-retroactivity of the laws, the majority cites extensively ruling No. 2018-19030 of 5:15 p.m. on November 14, 2018. In this regard, I must mention that, certainly, in that resolution I filed a dissenting vote in the following terms:

**“Dissenting vote of Justice Rueda Leal.** With the customary respect, I dissent on three specific points, as I state below.

**The first** relates to the interpretation made by the majority opinion. According to it, the amendment to Article 3 of Law No. 7605 is applicable only to persons who obtained the right to a pension or retirement after the entry into force of Law 7858. According to this criterion, the application of the ceiling established in that norm to persons retired prior to its entry into force infringes the principle of non-retroactivity of Article 34 of the Constitution.

Upon reading the opinion in question, the relevance of determining the juridical nature of the right to a pension or retirement stands out. Indeed, contrary to the recommendation provided by the Procuraduría General de la República – which leans toward the thesis of acquired rights – the Chamber defined that a pension or retirement is a consolidated juridical situation and, to that extent, deemed it falls within the scope of application of the principle of non-retroactivity. Based on this criterion, the Chamber arrived at the aforementioned conclusion and interpreted the effects of the challenged norm.

Regarding the nature of a pension or retirement, I stated the following in opinion No. 2018-5758 of 3:40 p.m. on April 12, 2018:

“…I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited in the face of reasons of public interest that are supported by technical studies, such as the very viability of the regime or fund, provided that such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides the fact that one cannot fail to note the essential differences between the historical moment when it was agreed (the year 1952) and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitively be considered in the interest of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Center for Population Studies of the UCR, life expectancy at birth in Costa Rica was 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). On its part, the total fertility rate per woman fell from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same sense, according to the World Bank, life expectancy at birth in Costa Rica was 60.58 years in 1960 and reached 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica was 6.5 children in 1960, and fell to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” The juridical nature of this type of retirement or pension – which is not an individual capitalization one – derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:

“ARTICLE 50.- The State shall seek the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. (…)

ARTICLE 74.- The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that the law indicates; they shall be equally applicable to all factors concurrent in the process of production, and regulated in a social and labor legislation, in order to seek a permanent policy of national solidarity.” As was said, this constitutional framework has been developed by the Chamber in order to delineate the principle of solidarity. A good example of that development is the following:

“III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily entails the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop integrally by himself, but rather requires the participation of all other members of society. In fact, expressly article 50 of the Constitution imposes as one of the fundamental duties of the Costa Rican State the search for an adequate distribution of wealth, an objective that cannot be achieved without the concurrence of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who have less. The foregoing is a fundamental right of persons occupying lower strata, and a duty of all, mainly those most benefited by the economic system. Wealth in a society is not produced solely by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not redound solely in favor of certain social classes. Relating this principle to that of social justice, set forth in article 74 of the Constitution, according to which persons must collaborate reciprocally in order to preserve the human dignity of all members of the community, we have that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals was above individual interests; this is what is normally known as a social and democratic state under the rule of law. It could thus be affirmed that solidarity among the members of the collectivity is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense the opinions of this Chamber numbers 1441-92, 5125-93)” (Opinion No. 3338-99 of 6:45 p.m. on May 5, 1999).

Based on these premises, I consider that the analysis of the unconstitutionality action must be carried out from a different perspective than that adopted by the majority vote. Indeed, I verify that the opinion only partially assessed the juridical elements relevant to the decision, given that it solely focused on the reproach of the plaintiff party, related to the principle of non-retroactivity, without giving greater reflection to the elements necessary for a pension regime to be sustainable and in accordance with the principle of social solidarity. In my judgment, an integral and comprehensive analysis of the juridical question posed must be carried out, in order to avoid an inadequate extension of constitutional principles, as occurred in this case with the principle of non-retroactivity. In other words, the Chamber should have first analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.

In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it were sustainable and respected the principle of social solidarity.

In other words, if the legislature conceived an unsustainable regime, without any type of provision to maintain its budgetary equilibrium, or one that is openly regressive, then such a regime would be unconstitutional specifically with respect to that omission for failing to comply with the indicated postulates.

From the foregoing, I derive that the principle of social solidarity and that of the sustainability of the regime are inherent in every social pension regime <u>from the moment of its creation</u> and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State of Law.

The need for the regime to be sustainable is not an element available to the legislature, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis that a pension regime might collapse:

"For this Court, only in an extraordinary case—a financial debacle of the State or of the respective retirement and pension regime—, duly proven—technical control of the determining facts—, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that is not present in this case despite the fiscal crisis the central government is going through—a fiscal deficit exceeding 3% of G.D.P. and that could reach 7%—, since if adequate and effective measures are adopted to reduce the cited deficit in the short term, it is possible to comply with the constitutional principle of financial equilibrium enshrined in constitutional numeral 176." In other words, the majority criterion would accept legislation contrary to the principle of non-retroactivity in the event of a "debacle." I find such a contradiction unnecessary because I start from the premise that sustainability is a principle inherent to every solidarity-based pension regime and obliges its participants—all of them—to contribute to its maintenance. Indeed, the sustainability of the regime permeates the legal nature (naturaleza jurídica) of the pensions and retirements linked to it. The hypothetical case posed by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the pension or retirement is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the "debacle," then all participants in it will see their claims frustrated. Hence, it is feasible—even necessary—to modify the conditions of all pensions or retirements, provided that the modifications aim to protect the sustainability of the regime and respect the principle of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of their content by a subsequent reform.

In the sub iudice, the challenged norm sets a cap that becomes operative only when a situation of risk to the regime arises, since it would be applicable when "...the income from state, worker, and employer contributions is less than the expenses derived from the payment of benefits...". I emphasize that this cap is extraordinary and requires the verification of these technical assumptions for its application. Likewise, it is relevant that its application parameter is linked to the sustainability of the pension regime, complying with the postulates previously explained.

Given the legal nature (naturaleza jurídica) of pensions and retirements, the foregoing considerations lead me to conclude that it is constitutionally valid that, in accordance with the principle of social solidarity, when a pension regime is in a crisis of financial sustainability, in order to resolve that situation, caps based on technical studies be applied both to those who acquired the right to the pension or retirement before the entry into force and to those who did so afterward.

I conclude this argument by noting that constitutional article 34 does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek the recovery of what was paid fairly based on the repealed legislation.

<b><i>The second point</i></b><i> </i>relates to article 3 bis of Law No. 7605, which exempts the beneficiaries of Law 7007 and those who postponed their retirement from the application of the cap in numeral 3. On this point, I return to the explanation provided above. All participants in a pension regime must contribute to its sustainability; added to this, the established cap is extraordinary and applicable only when the technical conditions indicated previously arise; otherwise, such a cap would not apply.

Starting from these premises, I find that making the exceptions established in the cited numeral 3 bis constitutes a violation of the right to equality in relation to the principle of social solidarity. No legally plausible justification is observed for exempting the subjects contemplated therein from their duty to contribute to the sustainability of the fund for the sake of social solidarity. I reiterate that the sustainability of the pension or retirement regime falls upon all its participants. If a regime is unsustainable from a financial point of view, it becomes unconstitutional for certain beneficiaries not to contribute, without some valid reason justifying it. For the foregoing, I grant the action in that regard." In the sub examine, the majority again recognizes that the regulations can have retroactive effects in the event of an economic "debacle"; however, as I maintained in the dissenting vote cited supra, sustainability is a principle inherent to every solidarity-based pension regime and obliges all its participants to contribute to its maintenance. This is the main aspect to consider when analyzing norms such as those challenged here.

If, according to the Ministry of Finance, out of every 100 colones, 90 are financed with taxes or debt, the special pension regimes charged to the National Budget suffer from clear problems of financial sustainability. In addition, if that regime becomes insolvent or if the State loses its capacity to fulfill its obligations, then all participants in it will see their claims frustrated. Hence, it is feasible to levy taxes on the pensions or retirements that have greater benefits and, even, to modify their conditions, provided that the adjustments aim to protect the sustainability of the regime and respect the principle of reasonableness and proportionality in relation to social solidarity.

In the sense expressed, if a pension financed largely or totally with public funds is unreasonably high (with disproportionate amounts and increases), it is justified that through laws an adjustment of such benefits be sought for the sake of safeguarding the right to a dignified existence for <b><u>all</u></b> retired persons. As long as the imposition of contributions and charges on old-age pensions and retirements respects the conventionally established percentage (article 67 of ILO Convention 102), there would not, a priori, be any transgression of the Law of the Constitution. It must be taken into consideration that, as the majority of the Chamber accepts, the country's economic situation is complicated and the sustainability of the pension regime is compromised, so that, in consideration of the principle of social solidarity, it is essential that those in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood from the standpoint of solidarity for the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of persons. For this reason, precisely, it is not considered contrary to the principle of non-retroactivity that the contribution amounts of retired persons be increased, provided that the guarantees and limits set forth in this dissenting vote are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights related to the right of persons to lead a dignified life in their old age, and considers that the 40% percentage, contemplated in ordinal 67 of ILO Convention 102 itself, is contrary to justice, equity, the prohibition of arbitrariness (interdicción de la arbitrariedad), and legitimate expectations (confianza legítima). However, as I indicated supra, the norm of the international instrument that is applicable to the specific case is precisely that article 67, endorsed by the ILO, but not numeral 71.2, as it is forcibly interpreted by the majority in the main judgment. Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scale issued by the General Directorate of Civil Service, which, according to the Office of the Attorney General of the Republic (Procuraduría General de la República), was ¢2,602,500.00 in the first semester of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subjected to a gradual scale of impact on higher pensions, guarantee more than dignified pensions for older adults.

Finally, even though there are ILO recommendations suggesting half the salary as a pension in cases where thirty effective years of contributions are credited, it is no less true that, on one hand, such provisions do not have binding character (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose mandatory nature is unquestionable) does expressly contemplate a percentage that must be respected for the purposes of the pension in old-age cases (40% of a reference salary), hence the direct application of the international instrument in the sub lite is appropriate.

Based on the foregoing, I dismiss the actions with respect to Laws No. 9380 and 9383." (...)<i>"</i>.

In addition, I clarify that, in judgment No. 2024006250 of 4:30 p.m. on March 6, 2024 (likewise mentioned by the majority as support for the declaration of unconstitutionality), I dissented and declared the actions inadmissible, so I did not rule on the alleged unconstitutionality of Law No. 9796.

Now, regarding this action, I observe that the Chamber, by majority, maintains the criterion of applying numeral 71.2 of ILO Convention No. 102, to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of ordinal 67 of the international instrument that punctually regulates matters concerning the limitations that can be imposed on pensions. Note also that article 71.2 refers to the percentage of insurance contributions chargeable to wage earners in relation to the total resources allocated to that protection; that is, such provision regulates "wage earners" (economically active population) and not "retired or pensioned persons." Ergo, consistent with the line I have maintained, I do not observe any unconstitutionality in ordinal 5 of Law No. 9796, since it was not demonstrated that the 40% barrier of a reference salary, established in ordinal 67 of ILO Convention C102, is automatically exceeded. Observe that the 55% parameter of the questioned article refers to the gross amount of the pension, while the conventional 40% refers to a reference salary, so it corresponds to the scope of application of the legal norm to assess whether, in any specific matter, the barrier established in the international instrument overrides the parameter set in the legislation. Consequently, I do not observe arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right, so <i>prima facie </i>I rule out any violation of the rights to retirement and social security, as well as the principle of non-confiscation.

On the other hand, in accordance with the provisions of resolution No. 2021-11957 of 5:00 p.m. on May 25, 2021, the dismissal of the claims raised regarding double taxation (doble imposición tributaria), as well as the alleged violation of the principles of non-retroactivity; legal certainty (seguridad jurídica); equality; reasonableness and proportionality; and solidarity is grounded. In this regard, I must mention that on that occasion (except regarding the legislature's omission to include a gender perspective) I agreed with the dismissal arguments put forward by the majority (which is why I agree with the claims dismissed in this action); however, I must specify that I recorded the following note in that judgment:

"<b><i>Note from Magistrate Rueda Leal. </i></b><i>In the sub iudice, I clarify that, aside from my dissenting vote, while I share the Majority's criterion regarding dismissing the claims formulated by the plaintiff parties, it seems fundamental to me to set forth the following particular precisions regarding the reasoning to arrive at such a conclusion.</i> <b><i>1- Regarding judgment No. 2018005758 of 3:40 p.m. on April 12, 2018, cited in the main vote.</i></b> <i>This resolution is cited constantly in the main pronouncement of this process, hence I consider it opportune to note what I recorded on that occasion:</i> <b><i>"XXII.- Note from Magistrate Rueda Leal. </i></b><i>Concerning the publicity of the substitute text of September 13, 2016, I concur with the majority vote, since according to reiterated constitutional jurisprudence—which I find wholly inappropriate to except (2017-019636, 2017-003262, 2016-018351, 2016-012413, 2015-001240, 2014-018836, 2012-013367, 2014-003969, 2013-013344, 2012-017705. 2012-015840, 2012-002675, 2011-015968, 2011-015655, 2011-014966, 2011-012611, 2011005274, 2011-005268, 2011-000992, 2011-000905, 2010-016202, 2010-012026, 2010-007630, 2000-010136, among many other judgments)—, optional consultations of constitutionality are restricted to analyzing what is specifically questioned by the consultants, without the Chamber, in this procedural avenue, extending the constitutionality control motu proprio to other topics. Thus, regarding the claim raised, the reasoning outlined in this pronouncement responds to the cited jurisprudential line and becomes correct, therefore I subscribe to it.</i> <i>On the other hand, I clarify that the right to a pension is a subjective right (derecho subjetivo) that is conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited in the face of reasons of public interest that are supported by technical studies, such as the very viability of the regime or fund, provided that such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides the fact that one cannot fail to note the essential differences between the historical moment when it was agreed upon (year 1952), and the current juncture, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center of the UCR, life expectancy at birth in Costa Rica was 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). Meanwhile, the total fertility rate per woman dropped from 6.46 in 1952 to 1.83 in 2010.</i> (and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica was 60.58 years in 1960 and reached 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica was 6.5 children in 1960, falling to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” **2.- On the unsustainability of the Pension and Retirement Regime of the Judicial Branch and the need to reform it.** In this regard, I note that, faced with the imminent insolvency problem of the Pension and Retirement Regime of the Judicial Branch, the legislator was obligated to take the necessary measures to guarantee its sustainability. Likewise, it is fundamental to consider that the principles of sustainability and social solidarity are inherent in every social pension regime, and therefore must be weighed when assessing the constitutionality of the provisions that reformed the regime. In that sense, I reiterate my dissenting vote to judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018 (which I also cited in my dissenting vote to judgment No. 2020019274 of 4:30 p.m. on October 7, 2020):

**“Dissenting vote of Judge Rueda Leal.** With the customary respect, I dissent on three specific issues, as I state below.

(…)

Regarding the nature of the pension or retirement, I stated the following in judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018:

‘…I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited for reasons of public interest that are supported by technical studies, such as the very viability of the regime or fund, provided that such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides which one cannot fail to note the essential differences between the historical moment when it was agreed upon (year 1952) and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitively be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center of the UCR, life expectancy at birth in Costa Rica was 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman dropped from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica was 60.58 years in 1960 and reached 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica was 6.5 children in 1960, falling to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).’ The legal nature of this type of retirement or pension – which is not one of individual capitalization – derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:

‘ARTICLE 50.- The State shall procure the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. (…)

ARTICLE 74.- The rights and benefits referred to in this Chapter are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that the law indicates; they shall be applicable equally to all factors concurrent in the production process, and regulated in a social and labor legislation, in order to procure a permanent policy of national solidarity.’ As stated, this constitutional regulation has been developed by this Chamber in order to delineate the principle of solidarity. A good example of that development is the following:

‘III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily leads to the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop integrally on his own, but rather requires the participation of all other members of society. In fact, Article 50 of the Constitution expressly imposes as one of the fundamental duties of the Costa Rican State the pursuit of an adequate distribution of wealth, an objective that cannot be achieved without the cooperation of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who possess less. The foregoing is a fundamental right of people occupying the lower strata, and a duty of all, mainly those most benefited by the economic system. Wealth in a society is not produced solely by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not yield only in favor of certain social classes. Relating this principle to that of social justice, positivated in Article 74 of the Constitution, according to which people must collaborate reciprocally in order to preserve the human dignity of all members of the community, we have that the constituent sought to foster a society where solidarity was the general rule of coexistence; where making small sacrifices in favor of great social goals stood above individual interests; this is what is normally known as a social and democratic State of Law. It could thus be affirmed that solidarity among the members of the community is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense judgments of this Chamber numbers 1441-92, 5125-93)’ (Judgment No. 3338-99 of 6:45 p.m. on May 5, 1999).

Based on these premises, I consider that the analysis of the unconstitutionality action must be carried out from a different perspective than the one adopted by the majority vote. Indeed, I verify that the judgment only partially assessed the legal elements relevant to the decision, since it solely concentrated on the reproach of the plaintiff, related to the principle of non-retroactivity, without greater reflection on the elements necessary for a pension regime to be sustainable and in accordance with the principle of social solidarity. In my opinion, a comprehensive and inclusive analysis of the legal issue raised must be carried out, in order to avoid an inadequate extension of constitutional principles, as happened in this case with the principle of non-retroactivity. In other words, the Chamber should have first analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.

In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it is sustainable and respects the principle of social solidarity. In other words, if the legislator conceived an unsustainable regime, without some type of provision to maintain its budgetary equilibrium, or openly regressive, then such a regime would be unconstitutional specifically regarding such omission for failing to comply with the indicated postulates.

From the foregoing, I derive that the principle of social solidarity and that of the regime's sustainability are inherent in every social pension regime **from the moment of its creation** and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State of Law.

The need for the regime to be sustainable is not an element available to the legislator, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis of a pension regime collapsing:

‘For this Court, only in an extraordinary case –a financial debacle of the State or of the respective retirement and pension regime–, duly verified –technical control of the determining facts–, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that is not present in this case despite the fiscal crisis through which the central government is going –a fiscal deficit exceeding 3% of G.D.P. and which could reach 7%–, given that if adequate and effective measures are adopted to reduce the aforementioned deficit in the short term, it is possible to comply with the constitutional principle of financial equilibrium enshrined in Article 176 of the Constitution.’ In other words, the majority opinion would indeed accept legislation contrary to the principle of non-retroactivity in the event of a ‘debacle’. I consider such a contradiction unnecessary because I start from the premise that sustainability is an inherent principle of every solidarity-based pension regime and obliges its participants –all of them– to contribute to its maintenance. Indeed, the sustainability of the regime permeates the legal nature of the pensions and retirements linked to it. The hypothetical case posed by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the pension or retirement is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the ‘debacle’, then all participants in it will see their claims frustrated. Hence, it is feasible –even necessary– to modify the conditions of all pensions or retirements, provided that the modifications have the purpose of protecting the sustainability of the regime and respect the principle of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of content by a subsequent reform.

(…)

I conclude this argument by noting that Article 34 of the Constitution does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek the repetition of what was justly paid based on the repealed legislation.” **3.- Regarding considerando XV.** In relation to the defect that the processing of the bill was not suspended for the period of eight business days according to the special procedure, I note that I certainly signed judgment No. 2012004621 of 4:00 p.m. on April 10, 2012, in which it was highlighted: “The duty of the various legislative bodies to adhere, zealously and scrupulously, to the previously designed special procedure (…) Consequently, in a special and fast legislative procedure, the previously established deadlines, stages, and requirements must be subject to a restrictive and rigorous interpretation, with the margin of admissible flexibility compared to ordinary procedures, through expansive interpretations, **decreasing notably** to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by a qualified majority.” (Emphasis not in original). Precisely, the fact that the referred margin decreases notably does not mean that there is no margin at all. Now, in the sub lite, according to the reasoning of the majority vote, we are not faced with a defect of such magnitude as to support a lack of constitutional relevance, with which I agree, given that, I reiterate, even in the special procedures in question, although with less room, constitutionality control always enables a distinction between substantial defects and those that are not.

**4.- With respect to considerandos XLV, XLVI, and XLVII.** Regarding the nature of the special, solidarity-based, and redistributive contribution, the final wording of the majority vote cites jurisprudence according to which it is not assimilable to a tax, and concludes that it is a constitutionally valid limitation on the right to retirement, arising from the social nature of that right. It then mentions that it is not a tax, but a parafiscal charge. It also indicates that, as a contribution to social security, it is a parafiscal contribution imposed by the State in the exercise of its sovereign power, which can only be created through a formal law. Similarly, it points out that it is a tax destined for an economic and social purpose.

In this regard, I must mention that, for the purposes of this unconstitutionality action, my position is that the special, solidarity-based, and redistributive contribution is parafiscal in nature and constitutes a type of tax. Precisely, its payment is mandatory for those who fall under the rule's assumption and, according to Article 236 bis of the Organic Law of the Judicial Branch, the resources obtained from it enter the Pension and Retirement Fund of the Judicial Branch, that is, the same fund to which the taxpayers belong. Moreover, this type of contribution must be legally authorized, so the Legislative Assembly is competent to establish the tax and define its elements.

Furthermore, although it is alleged that there is double imposition with the general contribution and the special, solidarity-based, and redistributive contribution, I clarify that the latter progressively taxes only the highest pensions and retirements, with the aim of providing sustainability to the regime to which they belong. In that sense, I consider that a priori it is not a case of double imposition, but rather the establishment of an additional tax burden on those who have greater economic capacity. While both figures form part of the income of the Pension and Retirement Fund of the Judicial Branch, it is no less true that they are based on different assumptions: on the one hand, there is the pensioner's or retiree's general contribution to the regime and, on the other, the contribution that those with the highest pensions must pay.

In that sense, paragraph 71.1 of ILO Convention C102 – Social Security (Minimum Standards) Convention – establishes that the cost of the benefits granted in application of that convention and the administrative expenses thereof “shall be financed collectively by way of insurance contributions or taxation or both in a manner which avoids hardship to persons of small means and takes into account the economic situation of the Member and of the classes of persons protected”. In other words, that international instrument enables the financing of the system by both means simultaneously, so that persons of lower income are not burdened with overly onerous charges. Ergo, it is appropriate, in addition to the general contribution of working and retired persons, to impose a parafiscal tax burden intended to levy only the highest pensions and retirements that were granted in light of previous, much more beneficial conditions.

Furthermore, I must clarify that, for the purposes of varying the conditions of a pension regime and assigning special contributions to correct some insolvency situation, it is indeed necessary to demonstrate, through technical studies, the insolvency of the regime and the suitability of the corrective measures. The foregoing is essential, unless it concerns benefits provided for in absolutely and manifestly unconstitutional rules, in which case the magnitude of the defect warrants the suppression of the provision without recognizing rights. In this sense, legal provisions that are patently unlawful from their foundation cannot be perpetuated, for example, such as a lifetime pension (pensión vitalicia) for the sons and daughters of legislators or receiving absurd and exorbitant benefits. In these latter cases, I have affirmed that their effects should be considered precisely as non-existent for the legal system from the very moment of their creation. On this subject, I gave different reasons in judgment No. 2020019274 of 4:30 p.m. on October 7, 2020, in these terms:

“**V.- Different reasons regarding the substantive claims related to Laws No.^s 9381 and 9388.** Before addressing the substantive arguments, it is important to be clear that what these rules do is eliminate the 30% annual increase that a restricted group of pensioners had been enjoying, and replace it with one based on the increase in the cost of living. Precisely, the crux of the matter consists of defining whether such a reform is in accordance with Constitutional Law.

In the first place, I consider that the 30% annual increase that some persons of the regime known as Hacienda-Diputados enjoyed, in and of itself signifies a gross and impossible-to-justify abuse, an injury to the constitutional order of such overwhelming magnitude that, from its very genesis, it constitutes what I call “a non-existent legal norm” (norma jurídica inexistente) for reasons of unconstitutionality, applying mutatis mutandi the doctrine of the non-existent legal act for reasons of legality, a position held by a relevant sector of legal science.

As happens in the sub examine, thanks to the particular gravity of the violation of the constitutional order regarding the especially excessive privilege that has been conferred upon a specific group (no less than an annual 30% increase in pensions without any consideration for the state of the economy and the real value of the pension conferred), I consider that we are not facing the mere nullity of a regulation due to a common jurisdictional declaration of unconstitutionality, but rather that, in this extraordinary situation, the restoration of the constitutional order demands a much more drastic action than simple nullity. Non-existence (inexistencia) designates a profoundly gross unconstitutionality of the challenged norm (even, in another proceeding, it could refer to an act), an extreme degree of nullity for reasons of unconstitutionality from which the absence of an essential element at the very moment of the emergence of the norm subject to the action is noted.

Precisely, due to this extreme defect in the very genesis of the norm, it is inappropriate to preserve the effects derived from manifestly unconstitutional, unreasonable, and totally unjustified legal provisions, such as the economic favoritisms granted against the most basic elements of social justice and the sustainability of a pension regime. These are provisions that are patently unconstitutional at their base, by virtue of which the disproportionate privileges granted by them must be considered legally non-existent.

The foregoing becomes even more evident and notorious in light of the country's harsh economic reality and the conditions of the other regimes. Hence, a legal reform that changes that fixed revaluation method for one based on objective criteria, such as the increase in the cost of living, not only corrects an excessive and definitively unconstitutional privilege due to violation of the principle of sound management of public funds (principio del sano manejo de los fondos públicos), but also contributes to social justice.

Following the same line as my dissenting vote in judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018 (which I cited supra) and the reasoning I developed above regarding the principle of non-retroactivity (principio de irretroactividad), I consider that sustainability is a principle inherent to any solidarity-based pension regime. Hence, I deem it constitutionally valid, in accordance with the principle of social solidarity, to impose charges and modify the conditions of the highest pensions or retirements, provided that the adjustments are intended to safeguard the sustainability of the pension regime and, in addition, both the principle of reasonableness and proportionality, and the fundamental right to human dignity of older adults, are respected. Note that, as a principled thesis, it is valid that, through a pension or retirement increase mechanism, the beneficiary’s pension maintains its value in real terms in relation to purchasing power and the vicissitudes over time, but not that the pension or its increase methodology serve as an instrument to unjustifiably and arbitrarily enrich a few persons.

In the sub lite, it cannot be unreasonable or disproportionate to eliminate a grotesque and excessive privilege such as the 30% annual increase. On the contrary, what is entirely unreasonable and disproportionate is to safeguard an increase of such magnitude for a restricted group of persons. It is important to emphasize that, concerning the amounts of pensions, as I indicated in the preceding considerando, the legislator, through other rules, established tax-exempt minimums from the special contributions and a gradual scale of progressive impact, which, from my perspective, guarantees more than dignified amounts for older adults, especially in the cases of those who benefited from annual 30% increases over time and have the highest pensions. In that sense, if the laws that modify the legal situations of the beneficiaries safeguard the dignity of the person while being proportional, reasonable, and justified, a purported immutability of the legal system by invoking consolidated legal situations is unsustainable, as these must yield to the principles of social solidarity and sound management of public funds. Based on the foregoing, the legislator has the freedom to regulate the readjustment mechanisms for the pensions of regimes that are in a sustainability crisis or grant openly disproportionate and grotesque privileges.” Likewise, I must specify that, as I stated in my dissenting vote to Considerando XLI of this pronouncement, the 50% bounded by the Majority as the maximum limit of contributions and deductions was based on a forced interpretation of paragraph 71.2 of ILO Convention C102, since Article 67 of that international instrument is the one that applies to reductions in pensions.

In this sense, ordinal 71.2 regulates:

“2. The total of insurance contributions borne by the protected employees shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their wives and children.” To determine whether this condition is met, all benefits supplied by the Member, in application of this Convention, may be considered together, with the exception of family benefits and, in the case of employment injuries (accidentes del trabajo) and occupational diseases (enfermedades profesionales), if the latter fall under a special branch.” For its part, Article 67 of the convention stipulates:

“Article 67 With respect to any periodical payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or a rule fixed by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other resources of the family, after deducting the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be considered fulfilled if the total amount of benefits paid, for the part in question, exceeds by at least 30 percent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

TABLE ANNEXED TO PART XI.—PERIODICAL PAYMENTS TO THE STANDARD BENEFICIARY:

<table class="MsoNormalTable" border="1" cellspacing="0" cellpadding="0" width="548" style="width:411.2pt;border-collapse:collapse;border:none;mso-border-alt:solid windowtext .75pt; mso-padding-alt:0cm 0cm 0cm 0cm"> <tbody><tr> <td width="100" valign="top" style="width:74.7pt;border:solid black 1.0pt; mso-border-alt:solid black .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"> </span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.75pt;border:solid windowtext 1.0pt; border-left:none;mso-border-left-alt:solid windowtext .75pt;mso-border-alt: solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Invalidity (Invalidez)</span></i><span style="font-family: &quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;;color:black; mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language: ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.5pt;border:solid windowtext 1.0pt; border-left:none;mso-border-left-alt:solid windowtext .75pt;mso-border-alt: solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Man with spouse and two children (Hombre con cónyuge y dos hijos)</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="92" valign="top" style="width:69.0pt;border-top:solid windowtext 1.0pt; border-left:none;border-bottom:solid windowtext 1.0pt;border-right:solid black 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;mso-border-right-alt:solid black .75pt; padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">50</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> </tr> <tr> <td width="100" valign="top" style="width:74.7pt;border-top:none;border-left: solid black 1.0pt;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-alt:solid windowtext .75pt; mso-border-left-alt:solid black .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"> </span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.75pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Invalidity (Invalidez)</span></i><span style="font-family: &quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;;color:black; mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language: ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.5pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Man with spouse and two children</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="92" valign="top" style="width:69.0pt;border-top:none;border-left:none; border-bottom:solid windowtext 1.0pt;border-right:solid black 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;mso-border-right-alt:solid black .75pt; padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">50</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> </tr> <tr> <td width="100" valign="top" style="width:74.7pt;border-top:none;border-left: solid black 1.0pt;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-alt:solid windowtext .75pt; mso-border-left-alt:solid black .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"> </span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.75pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Survivors (Sobrevivientes)</span></i><span style="font-family: &quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;;color:black; mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language: ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.5pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Widow with two children (Viuda con dos hijos)</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="92" valign="top" style="width:69.0pt;border-top:none;border-left:none; border-bottom:solid windowtext 1.0pt;border-right:solid black 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;mso-border-right-alt:solid black .75pt; padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">40</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> </tr> <tr> <td width="100" valign="top" style="width:74.7pt;border-top:none;border-left: solid black 1.0pt;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-alt:solid windowtext .75pt; mso-border-left-alt:solid black .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">VIII</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.75pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Maternity (Maternidad)</span></i><span style="font-family: &quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;;color:black; mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language: ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.5pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Woman (Mujer)</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="92" valign="top" style="width:69.0pt;border-top:none;border-left:none; border-bottom:solid windowtext 1.0pt;border-right:solid black 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;mso-border-right-alt:solid black .75pt; padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">45</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> </tr> <tr> <td width="100" valign="top" style="width:74.7pt;border-top:none;border-left: solid black 1.0pt;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-alt:solid windowtext .75pt; mso-border-left-alt:solid black .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">IX</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.75pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Invalidity</span></i><span style="font-family: &quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;;color:black; mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language: ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.5pt;border-top:none;border-left: none;border-bottom:solid windowtext 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Man with spouse and two children</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="92" valign="top" style="width:69.0pt;border-top:none;border-left:none; border-bottom:solid windowtext 1.0pt;border-right:solid black 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;mso-border-right-alt:solid black .75pt; padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">40</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> </tr> <tr> <td width="100" valign="top" style="width:74.7pt;border-top:none;border-left: solid black 1.0pt;border-bottom:solid black 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-top-alt:windowtext; mso-border-left-alt:black;mso-border-bottom-alt:black;mso-border-right-alt: windowtext;mso-border-style-alt:solid;mso-border-width-alt:.75pt;padding: 0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">X</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.75pt;border-top:none;border-left: none;border-bottom:solid black 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;mso-border-bottom-alt:solid black .75pt; padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Survivors</span></i><span style="font-family: &quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;;color:black; mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language: ES-CR"><o:p></o:p></span></p> </td> <td width="174" valign="top" style="width:130.5pt;border-top:none;border-left: none;border-bottom:solid black 1.0pt;border-right:solid windowtext 1.0pt; mso-border-top-alt:solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt; mso-border-alt:solid windowtext .75pt;mso-border-bottom-alt:solid black .75pt; padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">Widow with two children</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> <td width="92" valign="top" style="width:69.0pt;border-top:none;border-left:none; border-bottom:solid black 1.0pt;border-right:solid black 1.0pt;mso-border-top-alt: solid windowtext .75pt;mso-border-left-alt:solid windowtext .75pt;mso-border-top-alt: windowtext;mso-border-left-alt:windowtext;mso-border-bottom-alt:black; mso-border-right-alt:black;mso-border-style-alt:solid;mso-border-width-alt: .75pt;padding:0cm 4.7pt 0cm 4.7pt"> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR">40</span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> </td> </tr> </tbody></table> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><i><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"> </span></i><span style="font-family:&quot;Calibri&quot;,sans-serif; mso-fareast-font-family:&quot;Times New Roman&quot;;color:black;mso-themecolor:text1; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><span style="font-family:&quot;Calibri&quot;,sans-serif;mso-fareast-font-family:&quot;Times New Roman&quot;; color:black;mso-themecolor:text1;mso-font-kerning:0pt;mso-ligatures:none; mso-fareast-language:ES-CR"> <i>Consequently, as can be observed from reading the cited numerals, the wording finally produced by the Majority unnecessarily changes the legal-normative meaning of numeral 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of ordinal 67 of the international instrument which specifically regulates matters pertaining to the limitations that can be imposed on pensions.</i></span></p> Additionally, note that Article 71.2 refers to the percentage of insurance contributions borne by employees in relation to the total resources allocated to that protection; that is, this rule regulates “employees” (economically active population), but not “pensioners or retirees.” Based on the foregoing, and consistent with the line I have been maintaining, it is not evident that Articles 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40% barrier of a reference salary, contemplated in Article 67 of ILO Convention C102. Furthermore, note that the 55% limit, established in Articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross amount of the pension, while the conventional 40% relates to a reference salary; therefore, it is within the scope of the application of the legal norm where it must be assessed whether, in any specific case, the barrier contained in the international instrument overlaps with the parameter set forth in the legislation.

On this basis, I disagree with the statement in the final Majority opinion that the contribution only becomes confiscatory insofar as it exceeds 50% of the charges a person must bear on their pension or retirement, since, as I indicated supra, I believe the parameter is different and its automatic and evident transgression is not evidenced by the content of Articles 236 and 236 bis of the Organic Law of the Judicial Branch.

**5.- Regarding considerandos L and LI.** In these considerandos, it is asserted that the contributions and charges cannot exceed 50% of the gross amount of the pension in accordance with the provisions of judgment No. 2020-19274; however, regarding this point, I reiterate my position that the 55% limit regulated in Articles 236 and 236 bis of the Organic Law of the Judicial Branch is not unconstitutional per se. There, I also addressed the possibility of imposing, in addition to the mandatory contribution to the regime, an additional special contribution on the highest pensions. Therefore, I refer to the reasoning set forth in the preceding section regarding these matters.

Now, it is important to mention that Law No. 9544, by adding Article 236 bis, stated that the special contribution applied to the excess over the sum of ten base salaries of the lowest-paid position in the Judicial Branch (at the time that law came into effect, on pensions over ¢4,138,000.00 according to the salary index, see [https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial](https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial)). However, it is worth clarifying that subsection a) of this rule was subsequently reformed by Law No. 9796 of December 5, 2019, and established the contribution based on the excess over the sum of six base salaries of the lowest-paid position in the Judicial Branch (as of the first half of 2021, on pensions over ¢2,602,800.00 according to the salary index [https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial](https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial)).

In addition, Law No. 9544 regulated the application of the special contribution on a staggered basis: “a) On the excess over the limit established in Article 225 and up to twenty-five percent (25%) of that limit, they shall contribute thirty-five percent (35%) of such excess. b) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess over the previous margin, they shall contribute fifty-five percent (55%).” Hence, the exempt amount and the staggered contribution applied to pensions over four million colones guarantee more than adequate sums for the satisfaction of the needs of pensioned and retired persons, including older adults. Likewise, I consider that the special contribution is progressive and gradual on the highest pensions, without this, combined with other contributions, charges, and deductions, being able to exceed 55% of the total gross amount of the pension. In this sense, not only was it not demonstrated that the pension amount prevented pensioned persons from living decently or was insufficient, but also that it is within the scope of the application of the legal norm to assess whether, in any specific case, the barrier contemplated in the international instrument (Article 67 of ILO Convention C102) overlaps with the parameter established in the legislation.

I also reiterate that the special contribution imposed on the highest pensions constitutes a measure in accordance with the principle of social solidarity and, furthermore, is reasonable given the imminent insolvency problem presented by the Judicial Branch's Pension and Retirement Fund Regime.

Finally, I do not consider that the deduction of five per thousand (5 per 1000) from salaries and pensions destined to finance the operation of the Administrative Board of the Judicial Branch's Retirement and Pension Fund is openly disproportionate or unreasonable. In the same manner, if any of the parties considers that the maximum amount of contributions and deductions is exceeded, they may file the corresponding claims to ensure these are adjusted.

**6.- Regarding considerando LIV.** Regarding this considerando, I must emphasize that constitutional Article 34 enshrines the principle of non-retroactivity and the protection of acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas):

“ARTICLE 34.- No law shall be given retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations.” In relation to what is regulated in this article, the Chamber stated in judgment No. 2765-97 of 15:03 on May 20, 1997, “The concepts of ‘acquired rights’ and ‘consolidated legal situations’ appear closely related in constitutional doctrine. It is possible to state that, in general terms, the former denotes that consummated circumstance in which something – material or immaterial, whether a previously alien asset or a previously nonexistent right – has entered (or had an impact on) the person's patrimonial sphere, such that the person experiences an ascertainable advantage or benefit. For its part, the ‘consolidated legal situation’ represents not so much a patrimonial gain, but rather a state of affairs fully defined in terms of its legal characteristics and effects, even when these effects have not yet been extinguished. What is relevant about the consolidated legal situation, precisely, is not that those effects still persist or not, but that – by virtue of a legal mandate or a judgment that has so declared – a clear and defined rule has already emerged in legal life, connecting a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type ‘if…, then…’, that is: if the conditioning fact has occurred, then the ‘consolidated legal situation’ implies that the conditioned effect must necessarily also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects – making it intangible – the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty.” In this regard, it seems important to me to clarify that the sums received before the entry into force of Law No. 9544 do constitute acquired rights and, in fact, the challenged rules do not affect them since they have already entered the patrimonial legal sphere of the pensioned persons. However, it is inappropriate to maintain that the pensions they have received constitute an acquired right to receive the same amount in future months, since they are not consummated circumstances and, evidently, have not yet entered the person's patrimonial sphere.

Now, regarding the alleged transgression of consolidated legal situations, although, as a matter of principle, the conditions under which persons were pensioned or retired must be respected, this does not mean that the highest benefits cannot be subject to progressive tax charges intended to correct a situation of insolvency in the regime and thus contribute to its sustainability. Similarly, the change in the conditions for choosing retirement for active employees is not illegitimate either, because they only have an expectation of a pension or retirement, except when they are close to acquiring the right (within the following 18 months, as endorsed by the Chamber's jurisprudence and indicated in considerando LXIX of this judgment).

**7.- Regarding considerandos LV, LVI, LVII, and LVIII.** In these considerandos, the arguments of the claimant parties are addressed, as they accuse that the application of Articles 236 and 236 bis of the Organic Law of the Judicial Branch to retired older adults and beneficiaries of the Judicial Branch's Pension and Retirement Fund Regime is abusive and arbitrary, given that it worsens their socioeconomic conditions and has implied an abrupt decrease in their income, which violates national and international regulations concerning the protection of older adults, their right to quality of life, and to enjoy a dignified old age.

Regarding these points, I refer to the considerations developed by me in the previous points relating to general and special contributions, as well as other charges. I reiterate that the 50% limit set by the Majority as the maximum limit for contributions and deductions was based on a strained interpretation of Article 71.2 of ILO Convention C102, since Article 67 of that international instrument is the one that applies to reductions in pensions. In that sense, it is not evident that Articles 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40% barrier of a reference salary, contemplated in Article 67 of ILO Convention C102. Furthermore, note that the 55% limit, established in Articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross amount of the pension, while the conventional 40% relates to a reference salary; therefore, it is within the scope of the application of the legal norm where it must be assessed whether, in any specific case, the barrier contained in the international instrument overlaps with the parameter set forth in the legislation.

Moreover, it lacks support to affirm that the challenged provisions transgress the international protection that older adults enjoy, since not only are measures being taken to safeguard the sustainability of the regime, but also, in principle, a sufficient income is being guaranteed to pensioned and retired persons. In this sense, I reiterate that the amount exempt from the special contribution and its staggered levy on pensions over four million colones provides more than adequate sums for the satisfaction of the needs of an older adult.

**8.- Regarding considerando LXX.** As for my criterion for considering inadmissible the claim for a declaration of unconstitutionality by connection (inconstitucionalidad por conexidad) of Law No. 9796 of December 5, 2019, I limit my argumentation to the reasoning set forth in the majority opinion, except for what is proposed in the last paragraph, since the failure to comply with the prerequisite of Article 89 cited constitutes more than sufficient reason to dismiss this aspect of the action.

**9.- Concerning considerando LXXX.** In relation to this considerando, I clarify that determining whether or not there were changes in the employment contracts of the Judicial Branch officials is a matter properly vented through the ordinary courts, but not in an unconstitutionality action (acción de inconstitucionalidad).” Hence, based on such clarifications made in my note and without sharing that which contradicts it, or which is based on judgments Nos.

2020-19274 of 4:30 p.m. on October 7, 2020, and 2024006250 of 4:30 p.m. on March 6, 2024, I concur with the dismissal of the alleged violations of double taxation, as well as the principles of non-retroactivity; legal certainty; equality; reasonableness and proportionality; and solidarity. Finally, I share the reasoning set forth in the judgment of this action, regarding the lack of argumentation by the petitioner not only on the alleged violation of the principles of solidarity and reasonableness and proportionality, but also regarding the presumed lack of technical studies.

CO06/25 They indicate that the reform should have been done in a reasoned and proportional manner and not in a disruptive and abrupt way, that is, disproportionate and abusive of the rights of judicial officials and retirees of the regime, thereby affecting consolidated legal situations and acquired rights. They indicate that the law in question <span style=\"font-family:'Times New Roman'; font-style:italic\">“(…) violates the principles of non-retroactivity and legal certainty since it violates fundamental rights recognized in article 7 of our Political Constitution, that is, fundamental human rights, the principle of equality, as well as the principles of reasonableness and proportionality because, on the retirement amount used for the retirement calculation, all deductions and special contributions are applied, reaching more than 55% of the gross retirement amount. This makes these deductions and special contributions unreasonable and absolutely disproportionate, contrary to the human rights and international law treaties signed by our country (…)”.</span><span style=\"font-size:12pt\"> </span><span style=\"font-family:'Times New Roman'\">They point out that, although the principle of mutability of the legal order exists, it cannot go against acquired rights and consolidated legal situations. Furthermore, this must be progressive, proportional, and reasonable. They allege that the reform under study is unconstitutional because </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…) it modifies consolidated situations of retirees of the Judicial Branch, who see their rights diminished in an abrupt manner through a disruptive, disproportionate, and unreasonable reform, which generates a worsening in the calculation of their retirement, increases the amounts of deductions and special contributions above any other tax burden in our legal order, also calculating the maximum limit of deductions at 55% of the gross retirement, thus making, we insist, the reform disproportionate, unreasonable, abrupt, and which places its members in a situation of open patrimonial detriment (confiscatory), affecting the continuity of life projects, the dignity of retired persons, and legal certainty (…)”. </span><span style=\"font-family:'Times New Roman'\">Finally, they indicate that the regulations in question violate the principle of non-confiscation (article 40 of the Constitution). They point out that this principle constitutes a limit to the exercise of taxing power, linked to the principles of ability to pay and progressivity; in addition to representing a mechanism for protecting the right to private property. They mention that article 3 of the law speaks of creating a contribution and this, being a tax burden on the retirement amount, has a fiscal nature and, due to its structure, has confiscatory content over the patrimony of retired judicial servants and those who will retire. Then, they affirm that </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…) the reform imposes confiscatory conditions regarding the calculation of the pension. The calculation is no longer on 100% of the salaries earned in the last 24 months, but rather became 82% on the last 240 salaries, according to the law known (sic) as the fiscal combo. That is, a calculation difference of 18 years and a percentage difference of 18%. To the result of that residue, an increased contribution of 2% must be applied, by the same law it went (sic) from 11% to 13%, to that one must subtract the (sic) other legal charges, for example income tax, pension fund (contributions continue) and Social Security, leaving a net amount below 53% of the calculation base, and on the gross retirement amount this new fiscal charge introduced by the law we challenge must also be calculated, to the point that retirees will not receive any retirement and must also pay the State the charges from where only the State knows, since the only income of retirees is their retirement, how far will state voracity go. This variation is confiscatory and contrary to our constitutional system, since it subjects retirees of the Judicial Branch to a penalty of confiscation, expressly prohibited by article 40 of the Political Constitution (…)”. </span><span style=\"font-family:'Times New Roman'\">They argue that the measures proposed by the reform bring a reduction in the pension conditions of judicial workers of nearly 70% of their right, reduced to 55% by the mandate of the law itself. They indicate that the confiscatory penalty introduced by the law under study violates the principles of equality and ability to pay. They request that ordinals 1°, 2, subsection d); 3; 4, subsection b); 5 and 7; all of Law No. 9796 of December 5, 2019, called “Law to redesign and redistribute the resources of the solidary special contribution”, and article 236 bis, subsection a), of the Organic Law of the Judicial Branch be declared unconstitutional. As a precautionary measure, they request that the entry into force of the law being challenged be temporarily suspended, until this action is resolved. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">2.-</span><span style=\"font-family:'Times New Roman'\"> By resolution at 10:57 hrs. on May 5, 2020, the President of the Chamber warns the claimants to provide a certified copy of the bylaws of the claimant cooperative; documentation of importance to assess the admissibility of the action. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">3.-</span><span style=\"font-family:'Times New Roman'\"> By a written submission provided to the Chamber on May 11, 2020, the claimants comply with the warning issued by resolution of May 5, 2020, and provide the required certified bylaws. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">4.-</span><span style=\"font-family:'Times New Roman'\"> By resolution of the Presidency of the Chamber at 11:37 hrs. on May 12, 2020, this action of unconstitutionality is admitted for processing and a hearing is granted to the Attorney General of the Republic, </span><a name=\"_Hlk164321618\"></a><span style=\"font-family:'Times New Roman'\">the Minister of Finance, the Minister of Planning and Economic Policy, and the President of the Supreme Court of Justice. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">5.-</span><span style=\"font-family:'Times New Roman'\"> By written submissions provided to the Chamber on May 15 and 18, 2020, Héctor Luis Ruiz Salas and José Marcelino Silva Silva, in their capacity as retirees of the Judicial Branch, request that they be considered active coadjuvants in the present process. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">6.-</span><span style=\"font-family:'Times New Roman'\"> The legal notices –corresponding to the present action of unconstitutionality– were published in Judicial Bulletins Nos. 093, 094 and 095 on May 18, 19 and 20, 2020. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">7.-</span><span style=\"font-family:'Times New Roman'\"> By a written submission provided to the Chamber on May 25, 2020, Gustavo Adolfo Ramírez Redondo, in his capacity as a retiree of the Judicial Branch, requests that he be considered an active coadjuvant in the present process. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt\"><span style=\"font-family:'Times New Roman'; font-weight:bold\">8.-</span><span style=\"font-family:'Times New Roman'\"> By a written memorial provided to the Chamber on May 28, 2020, Julio Alberto Jurado Fernández, in his capacity as Attorney General of the Republic, responds to the hearing granted and expressly states the following: </span><span style=\"font-family:'Times New Roman'; font-style:italic\">“(…)</span><span style=\"font-family:'Times New Roman'; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:'Times New Roman'; font-style:italic\">II.- REGARDING THE LEGITIMATION OF COOPEJUDICIAL TO CHALLENGE THE VALIDITY OF THE IMPUGNED NORMS The resolution that admitted for processing the action of unconstitutionality on which this report is based (issued by the Presidency of the Constitutional Chamber at 11:37 hours on May 12, 2020) provided that \"The legitimation of the claimant party comes from article 75, paragraph 2°, of the Law of Constitutional Jurisdiction, since it alleges to act in defense of the corporate interests of the associated persons -active and retired- of Coopejudicial R. L.” In spite of the foregoing, this Advisory body considers that cooperatives, even when they have affiliates that could be affected by the norms challenged in this action, are not legitimized to directly challenge provisions such as those requested to be annulled. Admitting the legitimation of cooperatives to file actions of unconstitutionality against any normative provision that could affect their associates (whether those provisions are related to matters of public employment, private employment, retirements, or any other matter) would imply attributing to these associative-based entities purposes that are not contemplated in the Law of Cooperative Associations, No. 4179 of August 22, 1968. Regarding the purposes of cooperative associations, articles 1 and 2 of the cited Law No. 4179 provide the following: \"Article 1.- The constitution and functioning of cooperative associations is declared of public convenience and utility and of social interest, for being one of the most effective means for the economic, social, cultural, and democratic development of the inhabitants of the country.\" \"Article 2.- Cooperatives are voluntary associations of persons and not of capital, with full legal personality, of indefinite duration and limited liability, in which individuals organize themselves democratically in order to satisfy their needs and promote their economic and social improvement, as a means of overcoming their human condition and their individual formation, and in which the motive of work and production, distribution and consumption, is service and not profit.” Although the second of the transcribed norms establishes that cooperatives have among their purposes to promote the economic and social improvement of their affiliates, this does not legitimize them to challenge the constitutionality of any provision that harms the latter in their personal sphere, because this would imply excessively relaxing the access of cooperatives to the constitutional jurisdiction. The foregoing is reinforced by what is provided in article 12, subsection f), of the Law of Cooperative Associations, according to which \"No cooperative is permitted (...) To develop activities for which it is not legally authorized.”. This Advisory body shares what was resolved by this Chamber in its judgment No. 2014-20446 at 9:30 hours on December 17, 2014, reiterated in No. 7175-2017 at 9:05 hours on May 17, 2017, to the effect that cooperatives are legitimized to file actions of unconstitutionality</span><span style=\"font-family:'Times New Roman'; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:'Times New Roman'; font-style:italic\">provided that it involves the challenging of norms or provisions that affect that core of rights or interests that constitutes the reason for being and the cohesive factor of the group\". In this case, the defense of the retirement rights of officials and former officials of the Judicial Branch does not affect the core of rights or interests that constitute the reason for being of COOPEJUDICIAL. Nor is that defense related to the cohesive factor of the group. Therefore, we consider that this action is inadmissible, due to lack of legitimation of the claimant. Note even that not all associates of COOPEJUDICIAL are judicial officials or former judicial officials, since this cooperative admits the affiliation of other public officials who have never worked for the Judicial Branch, which confirms that safeguarding the retirement rights of only some of its members cannot constitute the reason for being of the cooperative (…) III.- ON THE VALIDITY OF THE REFORMS OPERATED TO THE SOLIDARY SPECIAL CONTRIBUTIONS IMPOSED ON ECONOMIC RETIREMENT BENEFITS. To analyze the arguments raised by the claimant cooperative, we have decided to divide them into four groups, depending on whether they relate to 1) the principle of equality; 2) the principle of non-retroactivity; 3) the fundamental right to a pension; and, 4) the principles of reasonableness, proportionality, non-confiscation, and intangibility of the patrimony. 1).- On the possible violation of the principle of equality The claimant states that Law No. 9796, by reducing the exempt tranche from the payment of the solidary and redistributive special contribution applicable to persons retired from the Judicial Branch regime, infringes the constitutional principle of equality, since it does not take into account that those affiliated to that regime make a higher contribution, compared to what is required in other pension regimes, which would justify -in the case of the Judicial Branch regime- maintaining the exempt contribution tranches that existed before the reform requested to be annulled. In this regard, we must indicate that the adjustments to the solidary and redistributive special contribution referred to in the law whose constitutionality is questioned, were applied to all the substitutive special pension regimes, taking into account the characteristics of each one of them. Among the affected regimes are the General Pension Regime Charged to the National Budget, the National Teachers' Pension Regime, the Communications Retirement and Pension Regime, the Public Works and Transportation Employees Retirement and Pension Regime, the National Registry Pension Regime, the Pacific Electric Railroad Employees Retirement and Pension Regime, the Military Bands Musicians Pension Regime, and the Treasury Secretariat and its Dependencies Pension Regime, among others. In the opinion of this Attorney General's Office, it is not possible to resort to the constitutional principle of equality to request that the reforms under study not be applied to the Judicial Branch regime. Certainly, the contribution of those affiliated to the Judicial Branch regime is 13% of their salary, a percentage that is higher than that contributed by those affiliated to the IVM pension regime, which is 4%; however, the economic benefits of the IVM regime are very different from those of the Judicial Branch regime. For example, the maximum cap for pensions under the IVM regime is 1,612,851.00 without postponement; while the initial maximum cap of the Judicial Branch pension regime is 4,258,000.00, equivalent to ten times the base salary of the lowest position paid in the Judicial Branch (art. 225 of the LOPJ), a salary that in the second semester of 2019 was 425,800.00. The pension granted by the IVM regime ranges from 43% to 52.5% of the average salary of the last 20 years (article 23 of the IVM Regulation); while the pension granted by the Judicial Branch regime is 80% of the average of the last 20 years of service (article 224 LOPJ). The solidary and redistributive contribution applicable to the Judicial Branch regime upon the entry into force of the norms being challenged begins from 2,554,800.00 (equivalent to six base salaries of the lowest position paid in the Judicial Branch, a salary that as of the second semester of 2019 is 425,800.00), an amount that pensions under the IVM regime cannot even reach, whose maximum cap without postponement is -as we indicated- 1,612,851.00. As can be seen from the above data, it is not possible to compare the Judicial Branch regime with the IVM regime to affirm that by virtue of the higher contribution made to the former, the solidary special contribution being challenged is unjustified. They are different regimes, with also different benefits and conditions, so there is no possible comparison that allows validating an injury to the constitutional principle of equality. On the other hand, if what is intended is to compare the contribution made to the Judicial Branch regime with that of other special regimes, as is the case, for example, of the regimes charged to the national budget administered by the National Pension Directorate, we must point out that the contribution to the latter is 16% of the worker's salary (article 11 of Law No. 7302 of July 8, 1992), which exceeds the 13% contributed to the Judicial Branch regime. This is so, even though the solidary special contribution imposed on the special regimes charged to the national budget begins from 2,226,000.00 (8 times the lowest base salary paid in the Public Administration, which in the second semester of 2019 was 278,250.00), an amount that is lower than the 2,554,800.00 (6 times the lowest salary paid in the Judicial Branch, which in the second semester of 2019 was 425,800.00) at which the contribution for the Judicial Branch regime begins. It must also be taken into account that the State, as employer, contributes to the Judicial Branch regime 14.36% of the salary of judicial officials; while to the general IVM regime and the special regimes charged to the national budget it contributes only 5.25% of the salaries of its affiliates. This situation reveals that far from there being discriminatory treatment to the detriment of the Judicial Branch regime, there are provisions that favor that regime, and that imply a greater expense by the State in its maintenance. It is important to point out that although this Chamber has admitted the existence of substitutive special pension regimes to the IVM regime, it has also resolved, on repeated occasions, that for the validity of these regimes it is necessary that \"1) the contribution of the State as such be equal in percentage terms on salaries for all regimes, including those of private enterprise; and 2) the contribution of the State as an employer in the various regimes not be higher than that imposed on other employers, including private employers, nor in any case lower than that of all servants or workers”. It so held in Judgment No. 846-92 at 13:30 hours on March 27, 1982, and reiterated it in Judgments 5236-99 at 14:00 hours on July 7, 1999, 5753-99 at 10:36 hours on July 23, 1999, 6987-99 at 16:21 hours on September 8, 1999, and in 3052-2000 at 9:28 hours on April 14, 2000. The foregoing is important to prove that the higher contribution made by the State as employer to the Judicial Branch regime (equivalent to almost ten percentage points more than it makes to other regimes) not only shows that there is no discriminatory treatment to the detriment of that regime, but also that this higher contribution could contradict precedents of this Chamber. In summary, this Advisory Body does not consider that there are reasons to affirm that the impugned norms are unconstitutional for violating the principle of equality to the detriment of those affiliated with the Judicial Branch regime. 2.- On the possible violation of the principle of non-retroactivity. With respect to this topic, we must indicate that in our setting, various substitutive special pension regimes to the IVM regime have been created by legislative means. The existence of these special regimes has been repeatedly endorsed by this Chamber, for example, in its judgment number 846-92 already cited. Based on the foregoing, this Attorney General's Office has indicated that the Legislative Assembly has not only the possibility, but the duty, to adopt the necessary measures to guarantee the sustainability of the various special pension regimes, through the approval of the necessary laws to achieve that objective. We have also pointed out that among the limits imposed on the legislative power to regulate special pension regimes is that of respecting the acquired rights and consolidated legal situations of the beneficiaries of those regimes; however, regarding specifically the law being analyzed, this Attorney General's Office does not observe that the impugned norms entail a violation of the principle of non-retroactivity of the law, since the changes in the solidary and redistributive contribution provided in Law No. 9796 govern towards the future, and do not entail the obligation to return sums received previously, so there is no injury to the principle of non-retroactivity. This Chamber has already referred to the topic in the following terms: \"The appellants argue that the exception norms are given retroactive effect and that the acquired rights of that group are affected, specifically, the amount they receive by way of pension or retirement, which has been diminished by establishing a contribution. They also point out that this additional charge breaks the 'tripartite and egalitarian' balance enshrined in constitutional numeral 73. In the criteria of the Chamber, the reproach of non-retroactivity is improper, since the law, perhaps with deficient technique, has provided the obligation of contribution by pensioners and retirees ex tunc and not ex nunc, since in no way are they being obliged to make those contributions on the monies already received by way of retirement or pension. Towards the future, the rules are diverse and the amount of the contribution, which seeks to compensate past imbalances and guarantee the survival of the system, in no way affects acquired rights, since this same Chamber has expressed that there is a fundamental right to a pension or retirement, but not to its amount, which could vary due to the requirements of the system, provided that those variations do not affect the essential content of the right.” (Judgment number 5236-99 at 14:00 hours on July 7, 1999. In the same sense, Judgment No. 6987-99 at 16:21 hours on September 8, 1999 may be consulted). Likewise, this Attorney General's Office has indicated that the administration of any social security regime requires flexibility to adequately guide the limited resources it has available and that this flexibility is affected when the legislator is inhibited from modifying both the initial conditions and the benefits in the course of payment. Based on this, it is not possible to admit that the norms that established the conditions of a particular regime be petrified, because this could even lead to the collapse of a country's Social Security system, which would harm not only persons who have already reached the status of pensioners, but also those who have justified expectations of obtaining in the future -when one of the protected contingencies arises- economic benefits from Social Security. (Opinion C-147-2003 of May 26, 2003, reiterated in &amp;181-2006 of May 15, 2006, in 00-021-2007 of March 9, 2007, and in 03-082-2015 of August 3, 2015). 3.- On the possible violation of the fundamental right to a pension. Although there is a fundamental right to a pension widely consolidated in the jurisprudence of this Chamber, this Court has also specified that there is no right for the benefit granted to be for a specific amount, since the pension or retirement may be varied according to the circumstances, either to reclassify the benefit by increasing or decreasing it, when the contribution of the benefits is not sufficient to cover its share in the cost of the regime... \". (Judgments 1925-91 at 12:00 hours on September 27, 1991, 2379-96 at 11:06 hours on May 17, 1996, and 3250-96 at 15:27 hours on July 2, 1996). In the specific case of special contributions, this Chamber, in its judgment No. 3250-96 at 15:27 hours on July 2, 1996, indicated that such contributions are not unconstitutional, as they find their basis in the social nature of the right to retirement, a nature that is inscribed within the principles that make up the Social State of Law, embodied in article 50 of the Political Constitution. In the mentioned resolution, this Chamber ratified the validity of a contribution imposed on pensioners of the National Teachers' regime. On that occasion, it indicated the following: “(…)</span><span style=\"font-family:'Times New Roman'; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:'Times New Roman'; font-style:italic\">the contribution established chargeable to pensioners of the National Teachers' Pension Regime in article 12, and the exclusion made of said contribution as an acquired right in Transitory I, both of Law number 7268, do not injure article 34 of the Political Constitution, because they form part of the list of limitations that have validly formed part of the fundamental right to retirement held by the claimant since his entry and from which he cannot withdraw because he acquired them along with it. (...) The manner in which article 12 of Law 7268 regulates the contribution chargeable to pensioners of the National Teachers' Regime does not contravene article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only defect noted when the Legislative Consultation was evauated (sic) in its time and which the Parliament took it upon itself to amend) thereby leaving practically intact an amount sufficient in the judgment of the Chamber to guarantee the effective enjoyment of the right to retirement, and second, because the amounts charged for the various excesses that occur in concrete cases have a clear protective and standardizing purpose for the benefit of the group of persons for whom the regime was established; that is, they are directed at the social welfare of all or at least the great majority of the members for whom the regime was conceived. This may entail that in some retirement systems there exist redistributive norms for those cases that may be called, if one wishes, extraneous to the reason for being of the regime and which must therefore, undergo a process of uniformization to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the beneficiaries of the regime, having to make, consequently -if it is their desire to continue enjoying the benefits of the system- a greater contribution for receiving a greater consideration in relation to the persons who were taken into consideration when designing the system -in this case, the teachers-, who receive a substantially lower salary and, consequently, so too is their retirement or pension. It is just then -due to the solidary character of the regime- to set a maximum amount sufficiently high to allow including the higher salaries of the beneficiaries proper to the fund and to subject to greater contributory requirement those who are above it, for always coming from obligations not contemplated among those taken into consideration when establishing the bases of the system.” In summary, nothing opposes, within the constitutional framework, the legislator introducing reforms to the Social Security system and regulating or modifying, towards the future, the normative elements that legal operators must take into account to recognize the amount of the pension, which it does in exercise of the powers that the Political Constitution itself has entrusted to it and which involve the margin of discretion typical of the legislative function, which allows it to validly introduce the reforms that, in accordance with economic needs and social conveniences, as well as with the evolution of the times, it deems necessary for the effectiveness and guarantee of the right to a pension. Furthermore, we consider that, ultimately, the guarantees that the Constitution contemplates in favor of pensioners cannot be interpreted in the sense of curtailing from the legislator the exercise of the function that the Constitution itself has entrusted to it, because that would be to petrify the dynamic exercise of legislating on determined groups of individuals, to the frank detriment of the general public. On the other hand, a transversal argument in the action of unconstitutionality that occupies us consists in affirming that the special contribution imposed on those affiliated with the Judicial Branch regime has the objective of financing regimes that have been poorly administered.

In that line it is stated that “… an autonomous, self-sustaining regime such as that of the Judicial Branch, which has already been quite battered by other recent laws, now due to its efficiency must make a special contribution (contribución especial) to sustain other, less efficient pension regimes…” and it is added that “the resources from the special contribution will be used to be diverted to support public finances or other pension regimes that have been neglected and are not efficient in their management…” On this point, we must indicate that Article 236 bis of the LOPJ, in its last paragraph, clearly establishes that “The resources obtained from the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) established in this law shall enter the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial)…”, which refutes the objection that was alluded to. Certainly, Law No. 9836 of March 26, 2020, provided that the resources contributed by the contribution imposed on the regimes referred to in Article 4 of Law 9383, Ley Marco de Contribución Especial de los Regímenes de Pensiones, of July 29, 2016, must be used to grant non-contributory regime (régimen no contributivo) pensions directed at persons in extreme poverty; however, the Judicial Branch regime is not among those mentioned in said Article 4, and therefore the resources from its contributions remain within the Judicial Branch regime.

4.- Regarding the possible violation of the principles of reasonableness, proportionality, non-confiscation, and intangibility of assets. With respect to this issue, we must indicate that the special, solidarity-based, and redistributive contribution regulated in Law No. 9796 is not excessive or unreasonable, especially if one takes into account that in the case of the Judicial Branch regime, this contribution applies only after the economic benefit (prestación económica) received by the pensioner exceeds the equivalent of the sum of six base salaries of the lowest-paid position in the Judicial Branch, which is equivalent to 2,554,800.00. In other words, pensioners whose economic benefit is less than 2,554,800.00 are not subject to the special solidarity-based contribution sought to be annulled, aside from the fact that this contribution is staggered, or progressive, which allows us to affirm that the legislator respected the constitutional principle of proportionality. We also consider that the challenged provisions respect the non-confiscation principle, since total deductions from the pension amount (including the special solidarity-based contribution, the contribution to the regime (cotización al régimen), income tax, and any other mandatory deduction) may not exceed 55% of the gross pension amount. This is established by Law No. 9796 itself, in its Article 5, according to which “In no case may the sum of the solidarity contribution and all deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions to which the beneficiary is entitled by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” It should be noted that to reach or exceed 55% in withholdings on the gross pension amount, the latter’s sum must be very high, especially considering that no special solidarity-based contribution is paid on the first 2,554,800.00. It is important to note, in any event, that the burden of proving the unreasonableness of a rule falls on the party alleging it, and in this matter, such unreasonableness has not been demonstrated.

On the subject, this Chamber has indicated that “To undertake an examination of reasonableness of a rule, the Constitutional Court requires the party to provide evidence or at least elements of judgment on which to base its argument, and the same procedural burden falls on whoever rebuts the arguments of the action; failure to comply with these requirements makes allegations of unconstitutionality unacceptable. The foregoing is because it is not possible to conduct a reasonableness analysis without the existence of a coherent line of argument that is supported by evidence.” (Sala Constitucional, judgment No. 5236-99 of 14:00 hours on July 7, 1999, reiterated, among many others, in No. 10153-2001 of 14:44 hours on October 10, 2001, and in No. 14392-2016 of 9:05 hours on October 5, 2016). Furthermore, according to constitutional jurisprudence, the examination of reasonableness, as an integral part of constitutional review, is limited to excluding from the legal system those acts that are totally unreasonable, but not to substituting for or judging public authorities in the weighing of elements that might make one option more suitable than another (resolutions 1064-2009 of 15:07 hours on January 28, 2009, 9042-2010 of 14:30 hours on May 19, 2010, and 10986-2012 of 15:05 hours on August 14, 2012).

However, if in a specific case the exempt amount of the contribution is not respected (which, in the case of the Judicial Branch, as we have already indicated, is 2,554,800.00) or withholdings that exceed 55% of the gross pension amount are made, this could not be attributed to the content of the rules being challenged, but rather to their erroneous interpretation or improper application, which should be reviewed via the amparo remedy (recurso de amparo) and not in an unconstitutionality action (acción de inconstitucionalidad). The following jurisprudential citations corroborate that position: “… the plaintiff bases her allegation on the injury caused to her by the interpretation and application of the challenged regulations, which is why this does not meet the premises of an unconstitutionality action, but rather of an amparo remedy, based on the provisions of Article 73(b) governing this Jurisdiction —which provides that an unconstitutionality action shall be available against subjective acts if they are not susceptible to the remedies of habeas corpus or amparo— by virtue of which it is concluded that the content of this challenge should have been the subject of an amparo remedy, as it involves not constitutional clashes, but allegations against administrative actions that can be heard through that other channel, as provided in Article 29, final paragraph, of the Ley de la Jurisdicción Constitucional” (Sala Constitucional. Judgment No. 1160-94 of 10:30 hours on March 2, 1994). “…The improper application of the law or its erroneous interpretation in a specific case is a matter proper to the amparo remedy and not to the unconstitutionality action, as clearly stated in Article 29 of the Ley de la Jurisdicción Constitucional." (Sala Constitucional, judgment No. 5966-94 of 15:54 hours on October 11, 1994, reiterated, among others, in No. 13421-2004 of 14:06 hours on November 26, 2004, and in No. 5965-2014 of 14:45 hours on May 7, 2014).

In another of its arguments, the petitioner cooperative (cooperativa accionante) states that there are no studies supporting the need for the reform to the special, solidarity-based, and redistributive contribution made through Law No. 9796. On this subject, we must indicate that the need to reduce public spending arising from the payment of economic benefits related to special pension regimes (regímenes especiales de pensión), as well as to balance those regimes that have a Fund, is public and notorious. Even so, we must note that for the approval of the questioned law, legal and economic studies were indeed conducted by the Legislative Assembly (Asamblea Legislativa) and the Superintendencia de Pensiones. In this regard, on folio 463 through 484 of legislative file No. 21035 (which culminated in the approval of Law No. 9796), the Legal Report AL-DEST131.1-199-2019, of August 26, 2019, prepared by the Department of Studies, References, and Technical Services of the Legislative Assembly, is recorded. Likewise, on folios 510 through 549 of that file, the Economic Report AL-DEST-IEC-079-2019, of September 3, 2019, prepared by that same Department, is recorded. And, finally, on folios 1167 to 1171 of the file, the report issued by the Superintendencia de Pensiones through its official communication SP-1025-2019, of October 24, 2019, is recorded.

IV.- CONCLUSION Based on the foregoing, this Attorney General's Office (Procuraduría) considers that the present action is inadmissible due to lack of standing (legitimación) of the petitioner cooperative. Regarding the merits of the matter, we suggest that this Chamber declare the unconstitutionality action addressed in this report without merit (…)”.

9.- By brief submitted to the Chamber on June 1, 2020, Fernando Cruz Castro, in his capacity as President of the Supreme Court of Justice (Corte Suprema de Justicia), responds to the hearing granted and expressly states the following: “(…) I.- Preliminary consideration: This Presidency deems it appropriate to indicate that by virtue of the powers assigned by Law 9544 to the Administrative Board of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), the administration of the pensions of Judicial Branch employees corresponds to it, in its capacity as a body of maximum deconcentration (órgano de desconcentración máxima) with instrumental legal personality (personería jurídica instrumental). Therefore, by virtue of the transfer of the unconstitutionality action carried out by the resolution of the competent Chamber, I proceed to respond to it, albeit with the understanding that transferring the action to the indicated body should be assessed, so that it may also pronounce on the matter. The response provided by this Presidency is based on the position adopted by the Supreme Court of Justice regarding the impact of the then bill on the organization and functioning of the Judicial Branch, and in the understanding that it impacts judicial retirees and, above all, those exercising judicial office, in a serious, disproportionate, and unreasonable manner, according to the considerations to be indicated below.

II.- Background: 1). Through official communication number AL-20035-OFI-0043-2017, of July thirty-first, two thousand seventeen, received that day, the Legislative body sent a consultation on the Affirmative Majority Opinion of July twenty-seventh, two thousand seventeen, regarding the text of bill number 19,922, called "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa." Said bill contemplates the creation of a "special, solidarity-based contribution" obtained from retirement benefits or pensions already granted and to be granted. By virtue of this, in the Full Court (Corte Plena) session number 26-17, held on August seventh, two thousand seventeen, article XL, it was agreed to make an express indication to the Legislative Assembly that "The Court issues a negative opinion and opposes the consulted bill, as it affects the organization, structure, and functioning of the Judicial Branch." 2). In official communication No. HAC-35-2019 of May 30, 2019, Licda. Flor Sánchez Rodríguez, Head of Area of the Permanent Ordinary Committee on Budgetary Affairs (Comisión Permanente Ordinaria de Asuntos Hacendarios) of the Legislative Assembly, requested the opinion of the Supreme Court of Justice on the bill titled "Ley para fijar topes equitativos a las pensiones de lujo, rediseñar y redistribuir los recursos de la contribución especial solidaria y crear la figura de la Jubilación Obligatoria Excepcional", file No. 21,035. The consultation was referred for study to Magistrate Roxana Chacón Artavia, who in a note dated June 14 of that year rendered the respective report, which was made known to the Full Court in session number 024-2019 of June 17, 2019, article XV. In that session, it was agreed to consider the report of Magistrate Chacón as rendered and to make it known to the Permanent Ordinary Committee on Budgetary Affairs of the Legislative Assembly, in response to the consultation formulated, with the express indication that the consulted bill does interfere with the organization and functioning of the Judicial Branch. Likewise, the cited bill was sent for consultation on two subsequent occasions, the reports for which were rendered by Magistrate Roxana Chacón Artavia and made known in sessions 39-19 and 47-19, held on September 16 and November 11, both of 2019, articles XIII and XV, respectively. On those occasions, it was also agreed that the consulted bill did affect the organization and functioning of the Judicial Branch. (See attached certification).

3). In official communication No. AL-CPOECO-615-2019 of October 18, 2019, Licda. Nancy Vílchez Obando, Head of Area of the Permanent Ordinary Committee on Economic Affairs (Comisión Permanente Ordinaria de Asuntos Económicos) of the Legislative Assembly, requested the opinion of the Supreme Court of Justice on the bill titled "Ley para la contribución solidaria de los pensionados de lujo", file No. 21,537. The consultation was referred for study to Magistrate Orlando Aguirre Gómez, who, in a note received in the General Secretariat of the Court on November 11, 2019, rendered the corresponding report, which was made known to the Full Court in session 047-2019 of November 11, 2019, article XVI. In that session, it was agreed to consider the report as rendered and to make it known to the Permanent Ordinary Committee on Economic Affairs of the Legislative Assembly, in response to the consultation formulated, with the express indication that the consulted bill does affect the organization and functioning of the Judicial Branch.

II.- On the merits of the action: a). Law 9796 "Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria", in its numeral 1, establishes that its object is to contribute to public finances by "redesigning" the maximum pension caps and the pension exempt from the "special solidarity-based contribution", established among other pension regimes, including that of the Judicial Branch. On the other hand, as inferred from Article 3, its purposes are: 1. To provide continuity and applicability to the solidarity contribution as a contribution to achieving the sustainability of pensions; 2) to contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in tax burdens; and 3) to provide sustainability to the pension systems through the new contributions. Even though neither from what was stated before regarding the object and purposes, nor from a comprehensive reading of the challenged regulations, can the course that the mandatory and special contributions from the different regimes subject to that law will take be deduced, the phrase "y redistribuir los recursos..." in the title is striking, since initially the bill intended to deposit the mandatory and special contributions for a period of ten years in a "special fund" created by the Ministry of Finance (Ministerio de Hacienda), for the purpose of being used to pay the country's domestic and foreign debt.

• b)With respect to Article 4, subsection b), it establishes that retirements and pensions derived from the Judicial Branch retirement and pension regime shall be subject to the special solidarity-based contribution, created in Law Number 9544, which reformed the Judicial Branch retirement and pension regime, except for those whose amount does not exceed six base salaries of the lowest-paid position in said branch. It should be highlighted that Law 9544 reformed the Judicial Branch retirement and pension regime; among other modifications, it created the special solidarity-based contribution indicated in Article 4 of reference, which can be verified from Article 236 bis of the current Ley Orgánica del Poder Judicial. In relevant part, that Article 236 bis, added by Law 9544, establishes: "Special, solidarity-based, and redistributive contribution from pensioners and retirees. In addition to the common contribution (cotización común) established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be fixed shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following table: a) On the excess over the cap established in Article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess. (...)”. Article 225, referred to in the numeral partially transcribed in the preceding paragraph, establishes that no retirement shall be higher than ten times the base salary of the lowest-paid position in the Judicial Branch; which, in concordance with the stated Article 236 bis, determines that the special contribution would apply on the excess over those ten base salaries, this until the entry into force of Law 9796; since, as indicated, only those retirements or pensions that do not exceed six base salaries of the lowest-paid position in the Judicial Branch shall be exempt from the special contribution. This represents a degradation in the final amount received by a retired or pensioned person, or that another might receive upon becoming entitled to those fundamental rights, since the exemption range for the special contribution was shortened with the reform to Article 236 bis of the Ley Orgánica del Poder Judicial, effected through the challenged law. The foregoing was communicated to the Legislative Branch following the consultation analyzed by Magistrate Roxana Chacón Artavia, through the Full Court agreement reached in session number 24-19, held on June 17, 2019, article XV, which, in the relevant part, indicates the following: "B) THE SPECIAL, SOLIDARITY-BASED, AND REDISTRIBUTIVE CONTRIBUTION IS ALREADY INCORPORATED IN THE LEY ORGÁNICA DEL PODER JUDICIAL. With the Reform of the Judicial Branch Pension and Retirement Regime, an Article 236 bis was introduced, through Law No. 9544, of April 24, 2018, establishing a special, solidarity-based, and redistributive contribution for pensioners. "The article states: In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be fixed shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following table: a) On the excess over the cap established in Article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess. b) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess over the preceding margin, they shall contribute fifty-five percent (55%). In no case may the sum of the special, solidarity-based, and redistributive contribution and all deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund exceed fifty-five percent (55%) of the total gross pension amount to which the beneficiary is entitled by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross pension amount. The resources obtained from the special, solidarity-based, and redistributive contribution, established in the present law, shall enter the Judicial Branch Retirement and Pension Fund. From the foregoing, it is inferred that the current Law establishes the cap for Judicial Branch pensions at the base of 10 salaries of the lowest salary in the Institution, which is fixed at the sum of 463,000 colones monthly; for ten salaries, this would total 4,463,000 colones monthly of pension, an amount that is currently exempt from the payment of the mandatory and solidarity-based contribution. The Full Court has already had the opportunity to send to the Legislative Assembly the legal foundation that was upheld at that time, regarding a similar bill consulted. The report rendered by Magistrate Orlando Aguirre Gómez and approved through article X of Act No. 028-2015 of July 20, 2015, concerning the discussion of the "Ley Marco de Contribución Especial de los Regímenes de Pensiones, Legislative File No. 19,254". We consider that the foundation from that time fully applies to the Bill under Consultation, as it is very similar; therefore, part of the report will be cited as pertinent."... This bill aims to create and regulate the special contribution on pension amounts (retirements) that exceed ten times the lowest base salary paid by the Public Administration, according to the salary index of the Dirección General del Servicio Civil.

B. SCOPE OF THE PROPOSAL. This law, if approved, shall apply to the following pension regimes: a) Law No. 7302 of July 8, 1992, Régimen General de Pensiones con Cargo al Presupuesto Nacional (Ley Marco de Pensiones). b) Judicial Branch Pension Regime, Ley Orgánica del Poder Judicial No. 7333 of May 5, 1993, and its Reforms. c) Law No. 148 of August 23, 1943, Ley de Pensiones de Hacienda. d) Law No. 264 of August 23, 1939, Ley de Jubilaciones y Pensiones para los Empleados del Ferrocarril Eléctrico al Pacífico. e) Law No. 4513 of January 2, 1970, Inamovilidad del personal de telecomunicaciones. f) Law No. 15 of December 5, 1935, Ley de Pensiones de Músicos de Bandas Militares. g) Law No. 19 of November 4, 1944, Ley de Jubilaciones y Pensiones de Empleados de Obras Públicas. h) Law No. 5 of September 16, 1939, Registry Office Pension Regime (Régimen de Pensiones del Registro Nacional). Pensions and retirements exceeding ten times the base salary shall contribute in a special, solidarity-based, and redistributive manner, according to the following proportion: a) On the excess over the amount established in Article 1 and up to twenty-five percent (25%) of said amount, they shall contribute twenty-five percent (25%) of such excess. b) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute thirty-five percent (35%) of such excess. c) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty-five percent (55%) of such excess. e) On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute sixty-five percent (65%). f) On the excess over the preceding margin, they shall contribute seventy-five percent (75%). " C.- ON THE RIGHT TO RETIREMENT, it was stated: "The institute of retirement corresponds to a fundamental right of every working person, regulated in Articles 33 and 73 of the Political Constitution (Constitución Política) and in international regulations: minimum standard No. 102 of the ILO on Social Security, ILO International Convention No. 118 on Equality of Treatment in Social Security Matters, Article 22 of the Declaration of Human Rights, Article 31 of the American International Charter of Social Guarantees, Article XI of the American Declaration of the Rights and Duties of Man, Article 9 of the International Covenant on Economic, Social and Cultural Rights. The Political Constitution establishes in ordinal 50 that the State shall seek the greatest well-being for all inhabitants of the country, and numeral 51 states that the elderly have the right to special protection from the State. Law No. 7935 of October 25, 1999: 'Ley Integral para la Persona Adulta Mayor', whose objective is to guarantee older adults equality of opportunity and a dignified life in all areas, in its Article 3, subsection g), indicates that every person has the right to a pension granted in a timely manner, which helps them satisfy their fundamental needs, whether they have contributed to a pension regime or not. From a doctrinal point of view, it has been noted that old-age retirement has a specific objective, which is to assure those workers who retire totally or partially from activity a compensation that allows them to maintain their standard of living as if they were still active. It is an aid based on solidarity to which they are entitled for having contributed to it during their working life with part of the income product of their work.

D.- OPINION. ANALYSIS OF THE BILL. The bill proposes creating and regulating a “special contribution” on the amounts of pensions exceeding ten times the lowest base salary paid by the Public Administration. Said contribution is progressive from 25% to 75%, taking as a base salary ranges that increase according to the corresponding scale. As it involves a limitation of fundamental rights associated with every working person, an analysis must be carried out to verify compliance with the constitutional principles of reasonableness, that is, necessity, suitability, and proportionality, as well as in relation to the equally fundamental rights of equality and non-retroactivity (irretroactividad), and of course the impact that the modification may produce on the Judicial Branch, if approved.

• 1)Reasonableness analysis. The Sala Constitucional in judgment 2010-1625 stated: 'When it comes to the restriction of certain rights, this rule imposes the duty that such limitation be justified by a sufficiently weighty reason to legitimize its contradiction with the general principle of equality. The foregoing, because a rights-limiting act is reasonable when it meets a triple condition: it must be necessary, suitable, and proportional.' A rights-limiting act is reasonable when it meets a triple condition: necessary, suitable, and proportional. The necessity of a measure directly refers to the existence of a factual basis making it necessary to protect some good or set of goods of the community or of a specific group. The bill notes that the measure is necessary to solve the problem of financing the public pension funds that currently sustain high pensions; that is, it has a clear objective. However, in order to determine if the proposed measure is reasonable, it must also be clear that the impairment it will cause to the fundamental rights of retirees, who will receive a lower pension amount, is the most suitable; that is, that there is no other measure that can achieve the same objectives without harming the administered parties. For this, it is imperative to have a study that allows determining not only the scope of the bill, but also the parameters used by the legislator to conclude that the proposed option is the most suitable. Proportionality refers to a judgment of comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, so that the limitation is not markedly superior to the benefit sought to be obtained for the benefit of the community. As this is a quantitative assessment, its resolution is simple. The objective of the bill is to solve the financing problem of the funds sustaining the pensions; however, the measure proposed for this is to remove from 25% to 75% of the amount of pensions exceeding 10 times the lowest salary of the Public Administration. This implies that in some cases the person will receive, just from the contribution, up to 50% less of the amount they were receiving, in addition to the other deductions that must be made according to law. With this measure, far from solving the problem, an even more serious one would be generated, which would be the disproportionate impoverishment of only some of the retirees in the terms that will be explained. From that perspective, the proposed contribution amounts are disproportionate and the measure intended to be imposed is not reasonable.
• 2)Principle of equality. This principle can be defined as equality among equals and inequality among unequals, which implies that situations that are different cannot be treated equally.

The project under analysis imposes a contribution on several pensions from different regimes without considering the differences existing between them. Special mention must be made at this point to the pension regime of the Judicial Branch (Poder Judicial). The Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) is a pension regime in which retired persons continue contributing 11% of their earnings from retirement (and it may be increased up to 15%). Therefore, if the project were approved, an excessive contribution would be applied in this regime, placing Judicial Branch pensioners in a situation of true sacrifice and discrimination in relation to pensioners from other regimes, significantly affecting their situation, since one must not forget the legal deductions: 5% for Maternity and Sickness Insurance (Seguro de Maternidad y Enfermedad); between 10% and 15% for Income Tax (Impuesto sobre la Renta) and a 9% contribution to the Judicial Branch Pension Fund. For this reason, if from 25% to 75% of the intended contribution is added to those deductions, this would represent a clearly unreasonable and disproportionate deduction. Other regimes have other particularities: the workers' contributions are lower than those made by Judicial Branch employees, and the contributions made by retirees are also not equal. Thus, it is reiterated, everyone cannot be treated in the same manner. The specific case of the Judicial Branch Pension Fund has its particularities that merit different treatment from the other regimes. 3) Confiscatory contribution and double tax burden According to the project, the contribution must be paid into the State's single fund (caja única del Estado), and its objective is to strengthen the different regimes; the wording is anything but clear, since it does not specify how that strengthening will be carried out regarding the Judicial Branch Fund or the other systems. Regarding the Judicial Branch, the rules governing the administration of the Judicial Branch Fund are contradicted, because according to the latter, that administration corresponds to the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial). Thus, the contribution is nothing less than yet another tax on pensions, such that, if these must already pay from 10% to 15% in Income Tax, the contribution becomes a double tax burden and a confiscatory act beyond all reason. 4) Non-retroactivity (Irretroactividad). Article 34 of the Political Constitution (Constitución Política) provides: “No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.” This project proposes that the contribution also be applied to persons who currently enjoy the retirement right, which constitutes an injury to this principle, since the beneficiaries would suddenly see the amount of their pension reduced in large proportions, which even reaches approximately 50% of their earnings. Therefore, the project is also not socially viable because it directly affects a fundamental right and the interests of a vulnerable population such as older adults (persona adulta mayor). Those who currently enjoy this right do so because they fulfilled the established requirements, served for a specific period, and made the required contributions. Furthermore, they have a family budget that cannot be altered overnight. It must be taken into consideration that, as age advances, some basic needs increase, such as medical care and caregiving, so older adults cannot be affected in such a high proportion, leaving them with only 60%, 65% or 70% of the amount they were accustomed to receiving.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">c). Given that panorama, it is also important to note that in the Full Court (Corte Plena) session number 47-2019 of November 11, 2019, article XVI, a report rendered by Judge Orlando Aguirre Gómez was deemed received, which considered the following regarding the creation of the special contribution: “The Full Court has already had the opportunity to remit to the Legislative Assembly (Asamblea Legislativa) the legal basis that was held at that time, on a similar project under consultation. The report rendered and approved by article X of minutes no. 028-2015 of July 20, 2015, concerning the discussion of the ‘Framework Law for the Special Contribution of Pension Regimes (Ley Marco de Contribución Especial de los Regímenes de Pensiones), Legislative File (Expediente Legislativo) no. 19.254.’-We consider that the basis from that time is very similar to the Project under Consultation, so part of the report will be quoted as pertinent. ‘… C.- ON THE RIGHT TO RETIREMENT, it was stated:</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">‘The institution of retirement corresponds to a fundamental right of every working person, regulated in articles 33 and 73 of the Political Constitution and in international regulations: ILO Minimum Standard No. 102 on Social Security, ILO International Convention No. 118 concerning Equality of Treatment in Matters of Social Security, Article 22 of the Declaration of Human Rights, Article 31 of the International American Charter of Social Guarantees, Article XI of the American Declaration of the Rights and Duties of Man, Article 9 of the International Covenant on Economic, Social and Cultural Rights. The Political Constitution establishes in article 50 that the State shall procure the greatest well-being for all inhabitants of the country, and article 51 states that the elderly have the right to special protection from the State. Law No. 7935 of October 25, 1999: ‘Comprehensive Law for the Older Adult (Ley Integral para la Persona Adulta Mayor)’, whose objective is to guarantee older adults equal opportunities and a dignified life in all areas, in its article 3, subsection g), indicates that every person has the right to a pension granted in a timely manner, which helps them satisfy their fundamental needs, whether or not they have contributed to a pension regime.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">From a doctrinal point of view, it has been pointed out that ‘retirement by old age has a specific objective, which is to assure those workers who totally or partially withdraw from activity a compensation that allows them to maintain their standard of living as if they were still active. It is aid based on solidarity to which they are entitled for having contributed to it during their working life with part of the income from their labor’. D.- OPINION. ANALYSIS OF THE BILL. The bill proposes to create and regulate a ‘special contribution’ on the amounts of pensions exceeding ten times the lowest base salary (salario base) paid by the Public Administration (Administración Pública). Said contribution is progressive from 25% to 75%, taking as a basis salary ranges that increase according to the corresponding scale. As it concerns a limitation of fundamental rights associated with every working person, an analysis must be carried out to verify compliance with the constitutional principles of reasonableness, namely necessity, suitability, and proportionality, as well as in relation to the equally fundamental rights of equality and non-retroactivity, and of course the impact that the modification might produce on the Judicial Branch, if approved. 1) Analysis of reasonableness. The Constitutional Chamber (Sala Constitucional) in ruling 2010-1625 stated: ‘When it comes to the restriction of certain rights, this rule imposes the duty that said limitation be justified, by a weighty enough reason to legitimize its contradiction with the general principle of equality. The foregoing, because a rights-limiting act is reasonable when it meets a triple condition: it must be necessary, suitable, and proportional.’ A rights-limiting act is reasonable when it meets a triple condition: necessary, suitable, and proportional. The necessity of a measure makes direct reference to the existence of a factual basis that makes it necessary to protect some good or set of goods of the community or of a particular group. The project points out that the measure is necessary to solve the problem of financing the public pension funds that currently sustain high pensions; that is, it has a clear objective. However, in order to determine if the proposed measure is reasonable, it must also be clear that the detriment it will generate in the fundamental rights of the retirees, who will receive a lower pension amount, is the most suitable; that is, that there is no other measure that can achieve the same objectives without harming the administered persons. For this, it is imperative to have a study that allows determining not only the scope of the project, but also the parameters used by the legislator to conclude that the proposed option is the most suitable. Proportionality refers to a comparative judgment between the purpose pursued by the act and the type of restriction that is imposed or intended to be imposed, so that the limitation is not markedly superior to the benefit intended to be obtained for the benefit of the community. As this is a quantitative assessment, its resolution is simple. The project's objective is to solve the financing problem of the funds that sustain pensions; however, the measure proposed for this is to take from 25% to 75% of the amount of pensions exceeding 10 times the lowest salary of the Public Administration. This implies that in some cases the person will receive, just for the contribution, up to 50% less than the amount they were earning, in addition to the other deductions that must be made according to the law. With this measure, far from solving the problem, an even more serious one would be generated, which would be the excessive impoverishment of only some of the retirees, in the terms that will be explained. From that perspective, the proposed contribution amounts are disproportionate and the measure intended is not reasonable. 2) Principle of equality. This principle can be defined as equality among equals and inequality among unequals, which implies that diverse situations cannot be treated equally. The project under analysis imposes a contribution on several pensions from different regimes without considering the differences existing between them. Special mention must be made at this point to the pension regime of the Judicial Branch. The Judicial Branch Retirement and Pension Fund is a pension regime in which retired persons continue contributing 11% of their earnings from retirement (and it may be increased up to 15%). Therefore, if the project were approved, an excessive contribution would be applied in this regime, placing Judicial Branch pensioners in a situation of true sacrifice and discrimination in relation to pensioners from other regimes, significantly affecting their situation, since one must not forget the legal deductions: 5% for Maternity and Sickness Insurance; between 10% and 15% for Income Tax and a 9% contribution to the Judicial Branch Pension Fund. For this reason, if from 25% to 75% of the intended contribution is added to those deductions, this would represent a clearly unreasonable and disproportionate deduction…Other regimes have other particularities: the workers' contributions are lower than those made by Judicial Branch employees, and the contributions made by retirees are also not equal. Thus, it is reiterated, everyone cannot be treated in the same manner. The specific case of the Judicial Branch Pension Fund has its particularities that merit different treatment from the other regimes. 3) Confiscatory contribution and double tax burden (…) the contribution is nothing less than yet another tax on pensions, such that, if these must already pay from 10% to 15% in Income Tax, the contribution becomes a double tax burden and a confiscatory act beyond all reason. 4) Non-retroactivity. Article 34 of the Political Constitution provides: ‘No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.’ This project proposes that the contribution also be applied to persons who currently enjoy the retirement right, which constitutes an injury to this principle, since the beneficiaries would suddenly see the amount of their pension reduced in large proportions, which even reaches approximately 50% of their earnings. Therefore, the project is also not socially viable because it directly affects a fundamental right and the interests of a vulnerable population such as older adults. Those who currently enjoy this right do so because they fulfilled the established requirements, served for a specific period, and made the required contributions. Furthermore, they have a family budget that cannot be altered overnight. It must be taken into consideration that, as age advances, some basic needs increase, such as medical care and caregiving, so older adults cannot be affected in such a high proportion, leaving them with only 60%, 65% or 70% of the amount they were accustomed to receiving….’ (The emphasis is not original). It can be verified that if at that time the methodology for calculating the special solidarity contribution was disproportionate and irrational, since it tends towards the impoverishment of retired or pensioned persons; now with the reform introduced by Law 9796, there is a stronger aggravation, due to the greater detriment that the final retirement or pension amount received by a retired or pensioned person or one about to acquire those rights will suffer, since the exemption range was shortened by the challenged law. It must be borne in mind that current retirements and pensions and those granted in the future are capped according to article 225 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), they are subject to a deduction of 13% monthly contribution, a 5.50% for Maternity and Sickness Insurance and between 10% and 25% for Income Tax</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">percentages that are taken from the total of eighty-two percent (82%)</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">corresponding to the ordinary retirement, which would result in a deduction of nearly half of the retirement entitlement, and this is contrary to the conventional provisions that allow a reduction of said benefit. Note that both the cited Conventions referred to in the preceding transcript and Recommendation No. 43 of the International Labor Organization are in agreement in establishing that the retirement or pension must satisfy the essential needs of persons in their old age, so the amount must be set taking into account the “cost of living and the social situation during the period of professional activity.” That is, the standard of living the working person had during their active professional life must be respected. That regulatory framework was not taken into account when the challenged law was enacted. The foregoing was considered in the report rendered by Judge Roxana Chacón Artavia, in Full Court session number 47-19, held on November 11, 2019, article XVI, where the following was clearly indicated: “III.- PENSIONED PERSONS OF THE JUDICIAL BRANCH ALSO CONTRIBUTE A PERCENTAGE OF 13% OF THEIR PENSION TO THE SUSTENANCE OF THE RETIREMENT AND PENSION FUND. Since 1996, a reform was introduced to the Organic Law of the Judicial Branch, Law No. 7605 of May 2, 1996, in its article 236 so that active employees and persons pensioned by this Regime, mandatorily contribute to the Judicial Branch Pension and Retirement Fund.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">Thus, article 236 subsection 1) indicated: ‘1.- Nine percent (9%) of all active salaries, as well as of the retirements and pensions charged to the Fund.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">This percentage is withheld monthly, and for reasons of Fund necessity and based on actuarial studies, the Court may increase this percentage up to 15% percent.’ With the reform made to the Organic Law of the Judicial Branch (Law No. 9544 of April 24, 2018), article 236, which establishes the contributions received by the Judicial Branch Pension and Retirement Fund, was also reformed. A worker contribution of thirteen percent (13%) of the salaries earned by judicial employees was then defined, as well as of the retirements and pensions charged to the Fund, a percentage that will be withheld in the corresponding periodic payment. It seems of special interest to us to point out to the Legislative Assembly that on this occasion, at the end of article 236, the following was indicated: ‘In no case may the sum of the mandatory contribution and the special, solidarity, and redistributive contribution and, in general, the totality of the deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%) with respect to the totality of the gross amount of the pension that by right corresponds to the beneficiary.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">For cases in which this sum exceeds fifty-five percent (55%) with respect to the totality of the gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) with respect to the totality of the gross amount of the pension.’ (The bold does not correspond to the original text of the cited law.) Thus, the legislator, when reforming the Organic Law of the Judicial Branch, was clear that the pensions of judicial employees would not be taxed above 55% of the gross amount of the pension.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">Including here the mandatory contribution and the special, solidarity, and redistributive contribution already agreed upon by Law. However, the last two legislative initiatives presented in the processing of Bill No. 21,035 refer to obtaining a scale of percentages to apply to the pensions of the Judicial Branch, without considering that a double contribution already exists on the part of those obligated to the Judicial Branch Pension and Retirement Fund: on the one hand, the mandatory contribution of 13%, leaving only 42% of the pension available as a maximum to set the special, solidarity, and redistributive contribution to be distributed from this percentage in the suggested scale. This so as not to violate the already cited provision that no more than 55% of the gross amount of the pension may be exceeded. That precisely, this Judge misses that the Bill does not contain technical studies that take into consideration the contribution established in the Organic Law of the Judicial Branch, and the one proposed in the consulted Project, called the solidarity, special, and redistributive contribution. These two items have not been analyzed to determine if the recent legislative initiatives would not be exceeding the limit set by the Legislator when reforming the Chapter relating to the Judicial Branch Retirement and Pension Fund and determined that they could not exceed 55% of the pension amount. IV.- PENSIONED PERSONS OF THE JUDICIAL BRANCH ALSO CONTRIBUTE FROM THEIR PENSIONS WITH THE INCOME TAX. According to Law 7092, Income Tax Law, another obligation is established for Judicial Branch pensioners to contribute from their pensions to the Renta. And recently, in the month of December 2018, the Public Finance Strengthening Law (Ley de Fortalecimiento de las Finanzas Públicas), Law No. 9635, was enacted, which came to reform several articles of Law 7092. All these burdens imposed on pensions mean that the amounts in recent years have increased considerably, in view of the economic situation our country is experiencing.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">However, it is important to review the obligations that the Legislator has already imposed on this Sector of the Population, the pensioners, so as not to overload them and impose double contributions, placing them at serious risk of being unable to meet their economic and subsistence obligations.” Special care must be taken with the reductions imposed so that they do not become confiscatory, for as indicated, in addition to this special solidarity contribution based on the six cited base salaries, one must not lose sight that, as explained, an ordinary retirement set at eighty-two percent (82%), which bears the charges by law that could be up to fifteen percent (15%) and which is currently thirteen percent (13%) contribution to the Fund, five point five percent (5.50%) to the CCSS (Costa Rican Social Security Fund) Regime and ten percent (10%) to twenty-five percent (25%) for income tax, already practically suffers a decrease of between forty-five percent (45%) and sixty percent (60%) of the salary that the retired person received when they were actively working (this without considering that the calculation is not being based on the current salary, but on a proration of the last twenty years of work).</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">A situation that is also not alien to those retirements or pensions already granted and enjoyed, as they currently bear levies from thirty-one percent (31%) to thirty-five percent (35%) of the total of the right, which added to the lowest percentage of the solidarity quota - twenty-five percent (25%) -, yields a total of sixty percent (60%), which becomes confiscatory and disproportionate, and also violates the principle of non-retroactivity of the law, contemplated in article 34 of the Political Constitution.</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">It is reiterated that said condition goes against what is provided in ILO Convention No. 102, which in its article 67 establishes that: “With respect to any periodic payment to which this article applies: (a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule set by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may not be reduced except to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or set by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and of the other family resources, after deduction of the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of article 66.” And Recommendation No. 43 of that body is in agreement in establishing that the pension must satisfy the essential needs of persons in their old age, so the amount must be set taking into account the “cost of living and the social situation during the period of professional activity.” That is, the standard of living the judicial employee had during their active professional life must be respected. It expressly indicates: “(b) In regimes with contributions proportional to salaries, insured persons having to their credit the contributions corresponding to the average duration of active professional life should obtain a pension corresponding to their social situation during the period of professional activity. To this end, the pension guaranteed to insured persons having to their credit thirty effective years of contribution should not be less than half the salary insured since entry into the insurance or during a determined period immediately preceding the settlement of the pension.” On the other hand, each judicial employee contributes throughout their working life a certain percentage that affects the totality of their income, so there is no explanation that justifies excepting fewer base salaries than in other regimes. The justification is even more necessary and indispensable when there are judicial employees who, having contributed double, triple, quadruple, or even more times than others, end up having a lower number of base salaries imposed as an exception to the special contribution, in relation to other regimes. In this regard, it is warned that when the legislator set the exemption range, they did not indicate the reasons for choosing it, an explanation that should have been based on technical and especially actuarial criteria that justified the decision adopted and not solely on the need to eliminate “the inequalities in the social benefits of pensions and retirements, as well as in the tax burdens.” Further, it should be considered that judicial employees, upon taking their retirement, continue contributing to the Judicial Branch Retirement and Pension Fund with a worker contribution of thirteen percent (13%) according to article 236 LOPJ, unlike other retirement and pension regimes; therefore the amount of their retirement is diminished, and furthermore, other deductions must be added such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial), created according to article 239 of the cited regulation, which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial employees, as well as of the retirements and pensions charged to the fund, which could be seen as confiscatory (article 40 of the Constitution), violative of the principle of non-retroactivity of the law (article 34 of our Magna Carta (Constitución Política)) as there are acquired and consolidated patrimonial rights by a prior law, and it violates the principle of equality established in article 33 ibid. In support of the foregoing, it is important to reiterate the report approved by the Full Court in session number 26-17, of August 7, 2017, article XXX, where the following was stated as relevant:</span><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'; font-style:italic">“It is reiterated, this Court has been and will be respectful of the technical studies that are issued to ensure the sustainability of the Fund; however, it cannot be overlooked that fundamental rights are at stake, and that is why the reform also merits a study adhering to actuarial technique but also with a human rights perspective. In that sense, it should be highlighted that ILO Recommendation No. 43 ‘Recommendation concerning Invalidity, Old-Age and Survivors' Insurance’, in point 13), subparagraphs a) and b) states that: ‘(a) In order to guarantee to workers an old age free from want, the pension should cover essential needs. It is advisable, therefore, that the pension guaranteed to any pensioner who has completed a qualifying period be fixed taking due account of the cost of living. (b) In schemes with contributions proportional to salary, insured persons who have to their credit contributions corresponding to the average duration of active working life should obtain a pension corresponding to their social position during their working life. For this purpose, the pension guaranteed to insured persons who have to their credit 30 actual years of contributions shall not be less than one-half of the wage insured since entry into insurance or during a specified period immediately preceding the award of the pension.’ It is clear, then, that both Convention No. 102 and Recommendation No. 43 of the International Labour Organization are in agreement in establishing that retirement and pension must satisfy the essential needs of persons in their old age, and therefore the amount must be set taking into account the “cost of living and the social situation during the period of professional activity.” That is, the standard of living that the working person enjoyed during their active professional life must be respected. The need to make reforms to the Retirement and Pension Fund is not unknown, in order to seek sustainability, but these must respond with suitability and reasonableness, as indicated by the Constitutional Chamber in vote No. 2010-1625 of 9:30 a.m. on January 27, 2010, when declaring unconstitutional the cap on pensions established in Article 234 of the Organic Law of the Judicial Branch. The foregoing is in agreement with what was stated by the Inter-American Commission on Human Rights when, analyzing the admissibility of the case “Admissibility and Merits Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras v. Peru”[1], it outlined that the aforementioned Article 26 does not exclude the possibility of a State imposing certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis has been made of the individual impact on the right (in this case to retirement and pension) in relation to the collective implications of the measure.” (Emphasis supplied).</span><span style="font-family:'Times New Roman'; font-style:italic"> </span><span style="font-family:'Times New Roman'; font-style:italic">d).- It must be indicated that Article 236 of the Organic Law of the Judicial Branch, which defines the income of the Retirement and Pension Fund of the Judicial Branch, maintains the 13% contribution that active judicial servants must make to the pensioned and retired, unlike other retirement regimes where once retired or pensioned the person does not have to continue contributing. That condition must be assessed integrally with the rest of the articles mentioned in the preceding points and where amounts are also established that reduce the percentage approved for retirement due to reductions for contribution, special solidarity and redistributive contribution, which were established in the challenged norm, in addition to the income tax. On the other hand, it is noted that the Retirement and Pension Fund of the Judicial Branch has the same characteristics as a social security fund (Articles 73 and 177 of the Constitution) and its nature has been analyzed by this Chamber in vote number 2014-20474, of fifteen forty-five hours on December eighteenth, two thousand fourteen, in the following manner: III. On the nature of the Retirement and Pension Fund of the Judicial Branch.- For this Court, the retirement and pension system of the Judicial Branch consists of a “pay-as-you-go regime,” in which contributions from both workers and former servants concur, as well as public funds, given the contributions of the Judicial Branch as employer, and the State itself. Ergo, the nature of this social welfare regime corresponds to the field, on one hand, of social security law, and, on the other, to public law by virtue of the statutory nature of the relationship of the servants with the State. Thus, it is evident that the system in question has exactly the same characteristics as a social security fund, as can be deduced from a reading of numeral 73 of the Political Constitution: “Article 73. Social insurance is established for the benefit of manual and intellectual workers, regulated by a system of compulsory contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law may determine.” In short, the Retirement and Pension Fund of the Judicial Branch is constituted for the benefit of judicial workers, which is financially sustained thanks to a tripartite compulsory contribution system by the State, the Judicial Branch as employer, along with judicial servants and retirees, and whose purpose is to protect the latter from contingencies such as old age, disability, or death. The necessary elements are present to consider the Retirement and Pension Fund of the Judicial Branch as a pay-as-you-go social security system, which inevitably implies that it must be governed in accordance with what is stipulated in the Political Constitution and the principles that inform social security regimes. (Judgment number 2011-10513, of fifteen one hours on August tenth, two thousand eleven. In the same sense, judgment number 2012-004108, of fourteen thirty hours on March twenty-seventh, two thousand twelve.)” e).- It is reiterated, retired and pensioned persons of the Judicial Branch continue contributing to the regime the same percentage as working persons, currently 13%, so any additional solidarity contribution must start from this already contributed percentage. It must also be considered that retirees and pensioners of the Judicial Branch regime, in addition to this mandatory contribution to the Retirement and Pension Fund of 13%, must contribute to the CCSS Sickness and Maternity Insurance, 5.50 0/0, and likewise pay income tax, whose ranges reach between 10% and 25%, according to the brackets defined by the Ministry of Finance. It is highlighted that those who belong to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund do not continue contributing to the regime nor pay the corresponding Sickness and Maternity Insurance, and this represents unequal treatment for former judicial servants. It is for this reason that this solidarity contribution cannot exceed 20%, considering the 13% already contributed, since, otherwise, the totality of the deductions would be confiscatory and would violate the international and constitutional norms established in this matter. Likewise, in relation to the solidarity tax, it is estimated that as a tax burden, the constitutional principles governing tax matters must be respected, such as the principle of legal reserve, proportionality, economic capacity, non-confiscation, among others. And that among all those principles, it is of special interest to highlight the principle of non-confiscation in relation to the right to property and what was stated by the Constitutional Chamber in judgment 2657-2001 of fifteen fifteen hours on April fourth, two thousand one, which indicated the following: "IV. On the argument that the tax is confiscatory: The State may take a proportional part of the income generated by the individual to defray its expenses, but always provided that it does not reach the point of annulling property as such, as would be the case if the tax totally absorbed the income. If the Constitution protects the right of property to the integral patrimony, it cannot be recognized and admitted that other provisions destroy it. Thus, to be constitutional, taxes must not distort other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposition, and prohibits confiscation, so a tax measure that goes beyond what is reasonable and proportional cannot be permitted. […]. If the Constitution in its Article 45 establishes that property is inviolable, and in its Article 40 that no one shall be subjected to the penalty of confiscation, it is unquestionable that the tax cannot be such that it makes those guarantees illusory. But it can be established as a principle that a levy that exceeds the economic or financial capacity of the taxpayer is considered confiscatory, or if the tax absorbs a substantial part of the taxed operation, […]. (Our emphasis).”. Therefore, it is considered that the reductions imposed are confiscatory, since as indicated, in addition to this solidarity contribution, it should not be lost sight of that an ordinary retirement fixed at eighty-two percent (82%) which bears the legal charges of thirteen percent (13%) contribution to the Fund, five point five percent (5.50 0/0) to the CCSS Regime, and ten percent (10%) to twenty-five percent (25%) for income tax; already suffers a decrease of forty-six percent (46%) to sixty-one percent (61%) -according to these calculations- of what the retired person received when they were actively working, without taking into account furthermore that the calculation was not made at that time based on the current salary, but with a pro-rata of the last twenty years of work), which clearly could be confiscatory and disproportionate, consequently contrary to what is stipulated in conventional and unconstitutional matters. For all the foregoing, it can be concluded that: 1-The modification of the special solidarity contribution established in the challenged norm affects the life project of all judicial servants, because it signifies an arbitrary and unequal reduction of the retirement and given the percentage reduction of the amount paid as retirement recognition, it is determined to be confiscatory. The foregoing because it aggravates lower-ranking income and simultaneously aggravates again income from higher-ranking pension or retirement, taking as a starting point the gross income amounts without considering that from such income, income taxes, contribution to the social security regime, and the referred solidarity contribution are already deducted in percentages, which implies that the new figure imposed is certainly a double imposition of taxes. Furthermore, the remedy sought causes a meager benefit compared to the enormous harm it would cause to some Costa Rican families. Also, it even lowers the amount from which the solidarity contribution begins, going from ten base salaries to six base salaries in the case of the Judicial Branch, which does not apply to the other basic regimes involved in said norm. This clearly warns of an impact on pensions that logically have lower purchasing power, while at the same time those persons with a higher pension income range, who are already affected by the solidarity contribution figure, are harmed even more. Lowering the amount from 10 minimum salaries to 6 minimum salaries, maintaining the same scale of deduction by percentages that always start at 35%, evidently violates the Principle of Reasonableness, besides the fact that the other regimes, in some cases such as that of the Teaching Profession, only suffer the collection of the Solidarity Contribution and not the percentage contribution that equally affects the Judicial Branch Regime when judicial servants under their regime are pensioned or retired. 2- It cannot be ignored that the creation and nature of the Retirement and Pension Fund of the Judicial Branch responds to criteria of stability, independence, preparation, and suitability, as established by Article 192 of the Political Constitution, with the aim of promoting the permanence of trained and qualified personnel in the institution, and the reduction of retirement enjoyment represents a disincentive for the entry of valuable professionals, who, attending to the economic result of a future valuation, would prefer to make their professional career in another labor field. This affects the judicial career, the prosecutorial career, the Public Defense, and personnel in general who, having more charges on their salary —four times more than in other regimes—, would receive a lesser benefit. 3- On the other hand, the renewal of personnel who manage to remain is affected. The Judicial Branch would have elderly officials who continued working only because of the reduction their income would suffer if they retired. 4- The judicial population is at a crossroads, where although it is true, they desire to opt for that right and have the motivation to retire to rest, they find themselves in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses or those acquired before the pension, and the natural ones due to reasons of age. However, that process also has its restrictions; from a legal point of view, the Organic Law of the Judicial Branch prohibits retired persons from opting for another job, and socially it is a reality that after forty years there are factual limitations regarding labor reincorporation. 5-</span><span style="font-family:'Times New Roman'; font-style:italic"> </span><span style="font-family:'Times New Roman'; font-style:italic">The regulation of the Retirement and Pension Fund of the Judicial Branch must not be assessed solely from the economic perspective, because we are facing fundamental rights - non-waivable - associated with every working person, who during their working years contributed a higher percentage than the general one to a regime with the expectation of having a pension that allows them to satisfy their needs and enjoy, together with their environment, their retirement years in a peaceful manner and with quality of life. 6- The imposition of this new tax burden affects vulnerable population groups - such as older adults - harming the weakest part, precisely the one that requires the most protection from the State. The foregoing also implies a retroactive application of the law, an aspect prohibited by Article 34 of the Political Constitution. The tax is imposed at a time in the life of the retired person when they are more vulnerable, close to or already of senior age. It cannot be ignored that it is in this stage where people generally require greater medical attention, special care, among others, and that during their working life, some to a lesser or greater extent, according to the income received, contributed to the regime with the expectation of having the resources planned to face this process, and if this Bill is approved, said life plan would be truncated. 7- A significant social impact is caused, in that people in their retirement lose, unexpectedly, an important part of their income, but retain a status of pre-established expenses, which becomes a repercussion not only economic but also on their health, being contrary to the intended objective of a pension system, which is to have sufficient income during life after work, a scenario within which it is important to remember that on many occasions, the retired person continues to have under their care and maintenance other older adults or minors (...)”. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">10.-</span><span style="font-family:'Times New Roman'"> By briefs submitted to the Chamber on June 1, 2020, Luis Antonio Chang Pizarro and Silenne Castro Vindas, in their capacity as retirees of the Judicial Branch, request that they be admitted as active coadjuvants in this proceeding. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">11.-</span><span style="font-family:'Times New Roman'"> By brief submitted to the Chamber on June 2, 2020, María del Pilar Vargas Acosta, in her capacity as a retiree of the Judicial Branch, requests that she be admitted as an active coadjuvant. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">12.-</span><span style="font-family:'Times New Roman'"> By brief submitted to the Chamber on June 2, 2020, Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera,</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas and Alfredo Jones León, in their capacity as retirees of the Judicial Branch, request that they be admitted as active coadjuvants in this constitutional proceeding. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">13.-</span><span style="font-family:'Times New Roman'"> By brief submitted to the Chamber on June 3, 2020, María del Pilar Garrido Gonzalo, in her capacity as </span><a name="_Hlk164321655"></a><span style="font-family:'Times New Roman'">Minister of National Planning and Economic Policy, responds to the hearing granted and expressly states the following: </span><span style="font-family:'Times New Roman'; font-style:italic">“(…) 1.- FORMAL ASPECTS: As a preliminary aspect, it is necessary to clarify that the Ministry of National Planning and Economic Policy (MIDEPLAN) did not participate in the drafting process of the Bill. Likewise, note that the matter of pensions, by its nature, falls under the purview of other specialized public bodies and institutions; consequently, it does not correspond per se to the powers granted to this Ministry by the National Planning Law, No. 5525 of May 2, 1974, as rector of the National Planning System, nor to those granted to the head of this portfolio by Article 46 of the Public Administration Salary Law, No. 2166 of October 9, 1957, amended and supplemented by Article 3 of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018, as rector of public employment. Due to the foregoing, this Ministerial Office can only render the requested Report based on the current text of the cited Law - which will enter into force until next June 21, 2020, that is, it has not yet taken legal effect, so to date none of the retired persons of the Retirement and Pension Regime of the Judicial Branch, nor of any other of the pension regimes within the scope of application of said Law, have been affected -, as well as based on public information available in the different institutions. Similarly, in the most respectful manner, this Honorable Chamber is urged to include the Ministry of Labor and Social Security as an informant, rector in pension matters, so that the Magistrates have greater inputs to resolve on the constitutionality of the Law to redesign and redistribute the resources of the special solidarity contribution, No. 9796 of December 5, 2019. 2.- ON THE SUBSTANCE: As a first element for the constitutionality analysis, it is convenient to consider the aims pursued by the Law to redesign and redistribute the resources of the special solidarity contribution, which according to its Article 3, are not only aimed at contributing to public finances, whose current difficult situation is of public knowledge, and with the redesign and redistribution of the special solidarity contribution established for the special pension regimes contained in Articles 3 of the Framework Law for Special Contribution of Pension Regimes, No. 9383 of July 29, 2016; 236 bis of the Organic Law of the Judicial Branch, No. 8 of November 29, 1937, and in Article 71 of the Law of Pensions and Retirements of the National Teaching Profession, No. 2248 of September 5, 1958 (comprehensively reformed by Law No. 7531 of July 10, 1995), seeks the sustainability of the systems and pensions, as well as to reduce inequalities in the social benefits of pensions, retirements, and in tax burdens. In this sense, the criterion issued by the Operational and Evaluative Oversight Division of the Oversight Area of the Financial Administration System of the Republic of the Office of the Comptroller General of the Republic (CGR) in Official Letter No. DFOE-SAF-0336 (9232) of July 1, 2019, must be taken into consideration, when the Law to redesign and redistribute the resources of the special solidarity contribution was made known as a Bill, in which it indicated the following: “The sustainability and fiscal impact of pension and retirement regimes has been a constant concern for many years, and has been communicated in multiple documents from the Office of the Comptroller General and other sources. In particular, regimes that operate with funds, such as that of the Judicial Branch and the Disability, Old Age, and Death regime, have been addressed through different studies, with a view to their long-term sustainability, given that they may come to represent a contingent liability for the State. In the case of regimes financed from the National Budget, which are closed to new entrants, these already generate a deficit for the Government directly. This reality has originated, as the bill points out, some reforms for the establishment of measures that contribute to sustainability, or that reduce the effect of said regimes on public finances. There are also legislative initiatives, in addition to the one in this bill, with proposals in that direction, which it is suggested be consolidated or harmonized with those of this initiative.” Subsequently, regarding the solidarity contribution and the quest to promote uniformity and reduce inequalities among retired and pensioned persons, it added: “The solidarity contribution by those higher benefits is one of the measures that have been put into execution, and this bill seeks a certain uniformity regarding this point, in such a way that progress is made in reducing existing inequalities in the contributions (…)” This Ministerial Office agrees with the criterion expressed by the Comptroller Body, and considers that the Law to redesign and redistribute the resources of the special solidarity contribution does not violate any fundamental right, since the variation in the amount of the pension exempt from the special solidarity and redistributive contribution in the retirements and pensions of the Judicial Branch Regime, rather responds to the constitutional principles of reasonableness, proportionality, equity, and financial balance, within the framework of a Social State of Law such as ours, where there is the task of adopting the necessary measures to build a just political, economic, and social order, for which the State is responsible for guaranteeing the existence and sustainability of the social security regime and, in turn, of the pension and retirement regimes, not only the one at issue in this case, for which it is impossible to extract the legal plane from the factual one, in which the measures, norms, and resolutions adopted are to take effect. The petitioners broadly outline the evolution of the retirement and pension regime of the Judicial Branch, and express their concern as they estimate that the modification of the maximum pension amount and the amount exempt from the special solidarity contribution will affect the quality of life of retired and pensioned persons of the Judicial Branch regime, who withdraw from active working life and support themselves from the lifetime annuities they receive as a pension or retirement. Now, and despite the fact that the petitioners, by reason of their position, must look after the interests of the persons affiliated with the Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L., it cannot be lost sight of that the Costa Rican State must not only attend to the needs of retired and pensioned judicial persons, but by mandate of Article 50 of the Political Constitution2 must seek the greatest well-being of all the inhabitants of the country, for which it must, in addition to organizing and stimulating production, ensure the most adequate distribution of wealth and guarantee, preserve, and defend that right and more specifically, constitutional Article 733 assigns it the task that social insurance benefits working persons and protects persons with permanent disability or incapacity and older adults. Now, this does not mean that the needs of some persons should be neglected in favor of others, but that the State must advocate for the sustainability of all pension regimes, including the Retirement and Pension Fund of the Judicial Branch itself (despite the petitioners' affirmation of its self-sustainability4 ), as well as constantly seek to reduce inequality, generate greater equity, unify rules, and eliminate disproportionate benefits that in the long term severely compromise the availability of limited resources to attend to assigned and future retirements and pensions. Regarding the alleged violations of constitutional norms and principles invoked, the following should be noted: Regarding constitutional Article 75 and the preeminence of international treaties and conventions over the Law and over the Political Constitution itself in matters of Human Rights, and particularly regarding the right to retirement, it must be clarified that starting from an erroneous premise will lead to an erroneous conclusion, so with the implementation of a lower amount that is exempt from payment of the special solidarity and redistributive contribution, what is stipulated in ILO Conventions 102 and 118, as well as in other international human rights conventions, regarding social benefits and for the benefit of the vulnerable or older adult population, is respected, since principles such as social justice and equity are being protected, given that the purpose of this legal reform is precisely the search for a balance between the income received from contributions and the expenditures involved in the payment of retirement benefits, as well as the reduction of inequalities and the creation of equity. Similarly, while it is true that there is a fundamental right to retirement or pension widely consolidated in the jurisprudence of this Honorable Chamber, it has also been specified that there is no right that the benefit derived from that right be for a specific amount, since: “(…) the pension or retirement may be varied according to the circumstances, either to requalify the benefit by increasing or decreasing it, when the contribution of the benefits is not sufficient to cover their share in the cost of the regime (...)\" (Votes No. 1925-91 of 12:00 hours on September 27, 1991, 2379-96 of 11:06 hours on May 17, 1996, and 3250-96 of 15:27 hours on July 2, 1996, 1625-2010 of 09:30 on January 27, 2010, 19485-2018 of November 21, 2018, and 236-2019 of 12:02 on January 9, 2019). Particularly regarding the invoked infringement of ILO Convention 102, it must be emphatically rejected, since its Articles 65 numeral 3 and 67 subsection a) expressly establish that a maximum amount may be prescribed, that is, determined by national legislation or by virtue thereof, in accordance with Article 1.1., provided that such maximum respects the minimum established by the Convention itself, which in the case of old-age benefits is 40% of the total salary of the ordinary unqualified worker (according to Articles 65, 66, 67), which constitutes a parameter of constitutionality for the amount of the retirement or pension. Similarly, regarding the alleged lack of actuarial technical grounding of the Law to redesign and redistribute the resources of the special solidarity contribution, or at least a misinterpretation on the part of the Deputies, it is necessary to indicate that in accordance with what is established by ILO Convention 102, within the limits to legislative power for the configuration of the different special substitute regimes for retirements and pensions, is the respect for the constitutional principles of reasonableness and proportionality, as well as the necessary adaptation to the principle of non-confiscation, and the best way to avoid infringements of these constitutional principles is by basing the reform intended to be carried out on technical-actuarial studies that demonstrate the necessity, reasonableness, and proportionality of the initiative. In this case, the required studies were requested with a view to long-term sustainability, and having them available, there is no ground for unconstitutionality on that basis. Indeed, on this point, the CGR stated in a report rendered in this regard that equity must prevail, the pursuit of reducing inequalities in the conditions of the different regimes, in addition to the establishment of measures that contribute to their sustainability or that reduce the effect of said regimes on public finances.

In this regard, the Constitutional Chamber (Sala Constitucional), in Ruling (Voto) N°2379-96 of 11:06 a.m. on May 17, 1996, held that: “(…) the fact that the claimant is recognized as having an acquired right to a pension from the moment of entering the system cannot imply the disappearance of the attributes and conditions that form an intrinsic part of it—including, of course, those that may prove restrictive for the beneficiary—so that all these characteristics survive as an indeterminate set of presumed or implied clauses, which are embedded within any system or regime for the realization of the right to a pension and which, for this very reason, are potentially applicable to the claimant at any time and while he belongs to the system. And he could not rely on Article 34 of the Political Constitution to oppose its application, given that it is not a matter of new regulations but rather the effective exercise of an implicit power of variation existing from the moment of entry into the system. Of course, this possibility of modification that the State holds in its favor finds limits not only from the Political Constitution but also from International Law, among which stand out those set out in Convention No. 102 of the International Labor Organization concerning the minimum standard of social security, which indicates, for what is relevant here, that the benefits granted in application of the cited Convention and the administrative expenses must be backed by technical studies and not be imposed or modified by an arbitrary or capricious political decision of the Administration, benefits among which is the contribution amount to the pension system on the part of the employee and the State as such and as an employer, and which obliges that variations be based on actuarial studies related to the solvency of the system because it affects it.” (Emphasis supplied) From the foregoing, it is inferred that the ordinary legislator can validly regulate the conditions under which special retirement and pension systems (regímenes especiales de jubilaciones y pensiones) must operate, complying with the minimum conditions established by both supranational and national regulations, in this case, those emanating from the ILO and the constitutional limits that subject it to the existence of support in objective data derived from technical studies.

Regarding the alleged violation of the principle of equality, contained in Article 33 of our Political Constitution, and taking up what was noted by the Costa Rican jurist Rubén Hernández Valle, who classifies it as: “Derived directly from the principles of the French Revolution, equality before the law establishes the prohibition that, within the legal system, discriminations are established for reasons of sex, race, religion, and any other founded on unreasonable grounds. Its ideological substratum is human dignity and the Christian principle of the equality of all men.” And to which, later in his work “El Derecho de la Constitución,” he frames it within the Social State of Law (Estado Social de Derecho), holding: “The Social State of Law means an increase in power for the benefit of equality, rather than property and liberty; its purpose is to distribute and utilize to the maximum the community's resources for the benefit of the most needy. Therefore, it is an intervention in economic life to favor certain persons, classes, or groups in order to raise the standard of living of the most needy in the enjoyment of property, that is, to achieve real equality for all citizens.” It is thus, and reiterating what was noted above regarding the tasks of the Costa Rican State as a Social State of Law, that, as a manifestation of the principle of equality, retirement and pension systems are created within a framework that must strive for their sustainability over time and must observe the principles of solidarity and sufficiency established in the doctrine of social security. Likewise, such sustainability is coupled with economic and financial balance to safeguard public finances, as these must maintain a balance while ensuring the satisfaction and effective payment to retired and pensioned persons. For this reason, it is considered appropriate to return to the necessary balancing between the principle of budget balance and the benefits borne by a Social State of Law, referred to by the Constitutional Chamber in Recital (Considerando) IV of Ruling N°19511-2018 of 9:45 p.m. on November 23, 2018, with which the facultative consultations on constitutionality of bill N.° 20.580 (today the Public Finance Strengthening Law, Ley N.° 9635 of December 3, 2018) were resolved, which, due to its relevance, is transcribed below: “…In this regard, faced with a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant benefits, the decision of the competent authorities to define and apply measures suitable to palliate or solve the problem is not only reasonable but, even more, is unavoidable. (…) In this context, a harmonious interpretation of the principle of budget balance and the Social State of Law is particularly important. The Chamber warns that, for a Social State of Law to be able to persist and fulfill its constitutional and legal purposes, it becomes necessary to undertake sound management of public finances; that is to say, inexorably, there must be a balance between social welfare rights and state economic solvency, since the former depend on the material possibilities made possible by the latter, while the meaning of the latter is to strengthen the development of a supportive political system, one in which the less favored strata of society find safeguard for their human dignity and their right to progress. Put another way, the ‘ideal’ Social State of Law is the ‘possible’ Social State of Law, against which one precisely acts when the principle of budget balance is broken, given that, in the medium term, this seriously jeopardizes or completely prevents obtaining the necessary resources to sustain a ‘real’ Social State of Law, one that the most vulnerable can truly and effectively enjoy. (…) Corollary to the above: the non-observance of the principle of budget balance has been one of the causes of the current deteriorated state of public finances, a reason that leads this Chamber to underline the transversal nature of this principle and emphasize its real implementation for the sake of the principle of the Social State of Law (…)” There is no doubt that the weakened state of public finances has forced the country to take and apply unavoidable measures that contribute to achieving the balance to which the Constitutional Chamber refers, in order for there to be economic solvency to meet the benefits borne by the State and to give sustainability to retirement and pension systems. The constitutional precepts that support these healthy finances compel the State to always have as its purpose satisfying the needs of the country's inhabitants, without entailing an irresponsible increase in spending, nor neglecting some needs for the benefit of others. Therefore, from the joint and coordinated application of Articles 33 and 50 of the Political Constitution, it can be concluded that the principle of equality is not intended to be absolute in nature, as it does not properly grant a right to be equated to any person without distinction of their particular circumstances or conditions, but rather, on the contrary, implies that differences must not be made between two or more persons or groups thereof, who are in identical conditions or in the same legal situation, so that equal treatment cannot be claimed when conditions or circumstances are unequal. On this topic, in Resolution (resolución) number 1372-1992 dated May 26, 1992, the Constitutional Chamber held the following: “III.- Constitutional jurisprudence, through several pronouncements, has managed to refine the content of the principle of equality established in Article 33 of the Constitution, stating that through it, making differences between two or more persons who are in the same legal situation or in identical conditions is prohibited, without being able to claim equal treatment when conditions or circumstances are unequal; in principle, equal treatment is accorded to equal situations and different treatment is possible for different personal situations and categories. This very simple formula was recognized many years ago by the Constitutional Court, formerly the Supreme Court of Justice, which was responsible for hearing appeals of unconstitutionality before the creation of this specialized Chamber. But the requirement of equality does not legitimize any inequality to authorize differentiated treatment; to determine if discrimination is truly justified, one must analyze whether the reason that produces it is reasonable, that is, whether, taking into account the particular circumstances of the case, different treatment is justified.” (In a similar sense, see Rulings N°580-1995, 633-1994, 5749-1993, and 2197-1992) And more recently, in Ruling N°236-2019 of 12:02 p.m. on January 9, 2019, which in turn cites Rulings N°2018-19030 and 2018-19485 that share the considerations, the operative part, and as applicable, the dissenting votes, stated: “IV. The right to a pension and the Social State of Law. Articles 50, 56, and 74 of the Political Constitution configure ‘the model of the Social and Democratic State of Law’ (Res. 9255 of 4:03 p.m. on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law ‘entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations’ (Res. 13205 of 3:13 p.m. on September 27, 2005). Consequently, and based on the Social State of Law, ‘our Political Constitution contemplates a set of social welfare rights related to the protection of… workers’ (ibid), as is the case with the right to a pension. (…)”. VII.- The right to a pension is not an absolute right. Like any other fundamental right, the right to a pension is not unrestricted, as it may be subject to certain limitations, provided these are established through a formal law, are reasonable, and do not impede its exercise—the essential content is not affected. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to a pension when it is proven that certain situations exist, such as inequalities or privileges, that put the sustainability of a system at risk and, therefore, threaten the nature of the system as such. On this matter, in Ruling number 2379-96 of 11:06 a.m. on May 17, 1996, the following was established: II.- ON THE RIGHT TO A PENSION.- In reiterated rulings, the pension or retirement has been recognized as a fundamental right in favor of the worker. See for all, the pronouncement of this Chamber number 1147-90 of four o'clock in the afternoon on September twenty-first, nineteen ninety, in which it was established: "First, this Chamber declares that there does exist a constitutional and fundamental right to a pension, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being in conditions of equality and without any discrimination whatsoever in accordance with Articles 33 and 73 of the Political Constitution..." However, in the same cited pronouncement, it was established that this right is not absolute and may be subject to conditions and limitations: "In reality, it is not ignored that the right to a pension, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are also reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than the expression of a well-known principle of Human Rights Law, which may be called proportionality and which is generally included as a sine qua non condition of the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them." From the transcribed text, it is clear that within the entire universe of limitations, conditionings, and restrictions that the fundamental right to a pension may suffer, there will be a group of them that can be predicated as constitutionally valid provided they meet two conditions, namely: a) that they originate from the texts that recognize said rights and guarantees, and b) that they are necessary for the very exercise of the right in accordance with its nature and purpose. It is also correct to conclude that —by imperative of the structural logic of our legal system— the first of the conditions just mentioned can be expanded to include limitations and conditionings that originate from texts of a higher hierarchy or of the same rank, as occurs in this case with limitations that may arise from the Political Constitution itself, understood not only as a grouping of norms, but as a set of regulations and principles integrated with an aspiration for harmony (…)”. (Emphasis supplied) This principle will be violated when the inequality lacks an objective and reasonable justification; therefore, a reasonable relationship of proportionality must necessarily exist between the means employed and the intended purpose. The principle of equality, together with the right to social security and other fundamental rights, is intended to be satisfied only with everyone's participation, in order to satisfy the protected legal interest through shared responsibility between the individual and society, which is exactly the factual situation of the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution (Ley para Rediseñar y Redistribuir los Recursos de la Contribución Especial Solidaria). In this case, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution seeks, through its Article 4, to lower the exempt payment base so that, from this point onwards, the collection of the solidarity contribution proceeds in accordance with the salary system to which the retired or pensioned person belongs, in the case of the Poder Judicial's Retirement and Pension System (Régimen de Jubilaciones y Pensiones del Poder Judicial), moving to 6 base salaries of the lowest paid position. In this way, the bill seeks economic balance and sustainability of the pension systems, in order to maintain the same current and future benefits for all persons who opt for retirement. With the compulsory and staggered special solidarity contribution provided for in the challenged Law, the pension exempt from the special solidarity contribution would approximate the sum of ¢2,550,000 colones for the Poder Judicial's Retirement and Pension System, an amount that allows for an adequate standard of living and which is, in turn, much higher than the current pensions of the Disability, Old Age, and Death System (Régimen de Invalidez, Vejez y Muerte) administered by the CCSS and which is the largest in the country.

Added to the above, regarding Article 34 of the Political Constitution, it must be noted that it is inappropriate to rely on the principle of non-retroactivity to sustain the existence of an acquired right or a consolidated legal situation in favor of a person (or group thereof) to enjoy a specific system indefinitely, as this would be equivalent to admitting the immutability of the legal system, or what is the same, to freeze the norms that were issued at a historical moment and under certain demographic, social, and economic conditions, among others, that inevitably change over time and to which the State and the legal system must adapt and regulate. In this sense, regarding the principle of non-retroactivity, acquired rights, and consolidated legal situations, this Honorable Chamber, in Ruling N°2765-97 of 3:03 p.m. on May 20, 1997, stated: "The concepts of 'acquired right' and 'consolidated legal situation' appear closely related in constitutionalist doctrine. It is feasible to affirm that, in general terms, the first denotes that consummated circumstance in which a thing—material or immaterial, be it a previously belonging good or a previously nonexistent right—has entered into (or impacted upon) the personal patrimonial sphere, so that the person experiences a verifiable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial gain, but a state of affairs fully defined in terms of its legal characteristics and effects, even if these have not yet extinguished. What is relevant regarding the consolidated legal situation, precisely, is not that these effects still endure or not, but that—by virtue of a legal mandate or a judgment that has so declared—a clear and defined rule has already emerged in legal life, connecting a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then...'; that is: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that, necessarily, the conditioned effect must also occur. In both cases (acquired right or consolidated legal situation), the legal system protects—making it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of withdrawing the good or the right already acquired from the person's patrimony, or of causing that, if the factual premise had occurred prior to the legal reform, the consequence (advantageous, it is understood) that the interested party expected from the consolidated legal situation no longer arises. Now then, specifically regarding this latter point, it has also been understood that no one has a 'right to the immutability of the legal system,' that is, that the rules never change. Therefore, the constitutional precept does not consist in that, once born into legal life, the rule connecting the fact with the effect cannot be modified or even suppressed by a later norm; what it means is that—as explained—if the conditioning premise has occurred, a legal reform that changes or eliminates the rule cannot have the effect of preventing the conditioned effect that was expected under the previous norm from arising. This is so because, as stated, what is relevant is that the state of affairs enjoyed by the person was already defined in terms of its elements and effects, even if these are still being produced or have not even begun to be produced. In this way, what the person is entitled to is the consequence, not the rule.” (Emphasis supplied) Thus, retroactivity manifests when a legal norm invades the application domain of the previous one, applying to facts that occurred before its entry into force. Therefore, to establish the retroactivity of a norm, it must be defined whether its application is prospective, or if, on the contrary, it intends to regulate events or situations that have already occurred or are in the course of execution. Thus, in light of Article 34 cited, as well as constitutional jurisprudence, the right to a retirement or pension for those who have already fulfilled the age, contributions, and years of service required by law is incontrovertible; however, this condition gives them a right to the consequence, that is, to receive a lifetime economic benefit, but not to the rule, and even less to those that established a specific amount or left the maximum limit of remuneration undefined. Likewise, if the effects have already been realized, the new norm cannot affect them, but it can affect future effects. In this case, the reform in no way determines the return of pension or retirement amounts that had been paid; rather, its effects will occur in the future and in terms of modifying the amounts exempt from the special solidarity contribution and defining a reasonable limit on future amounts that will be disbursed for pension purposes. The foregoing, provided that the premise established by the norm in question is met, that is, that the amount received for retirement or pension exceeds more than six times the base salary of the lowest position paid in the Poder Judicial. Nor can one lose sight of the fact that maintaining over time the state of affairs intended by the appellants would put the continuity of the social security systems, and not only the retirement and pension systems, at severe risk, with the consequent harm to people who have already achieved the status of retirees or pensioners, and to those who have a justified expectation based on their contributions of obtaining the right to a retirement or pension in the future. Closely related to the case at hand, in Ruling N°3250-96 of 3:27 p.m. on July 2, 1996, the Constitutional Chamber indicated that special contributions are not unconstitutional because they find their basis in the social nature of the right to a pension, a nature that falls within the principles that constitute the Social State of Law, encompassed in Article 50 of the Political Constitution; as well as ratified the validity of a contribution very similar to the one questioned in this action. On that occasion, it indicated the following: “(…) the contribution levied on pensioners of the Magisterio Nacional Pension System (Régimen de Pensiones del Magisterio Nacional) in Article 12, and the exclusion from said contribution made as an acquired right in Transitional Provision I, both of Law Number 7268, do not violate Article 34 of the Political Constitution, as they form part of the list of limitations that have validly been part of the fundamental right to a pension held by the claimant since his entry and from which he cannot withdraw because he acquired them together with it. (…)” Adding later: “The way in which Article 12 of Law 7268 regulates the contribution levied on pensioners of the Magisterio Nacional System does not contravene Article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only deficiency noted when issuing the Legislative Consultation in its day and which the Parliament proceeded to amend) thus leaving practically intact an amount sufficient, in the judgment of the Chamber, to guarantee the effective enjoyment of the right to a pension, and second, because the amounts charged for the different excesses occurring in specific cases have a clear protective and uniforming purpose for the benefit of the group of persons for whom the system was established; that is, they are directed at the social welfare of all or the vast majority of the members for whom the system was conceived. This may entail that in some pension systems, there exist redistributive norms for those cases that may be called, if you wish, alien to the rationale of the system and which must therefore undergo a process of uniformation to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the system's beneficiaries, having to consequently make—if they wish to continue enjoying the system's benefits—a greater contribution for receiving a greater consideration in relation to the persons taken into consideration when the system was designed—in this case, the teachers—who receive a substantially lower salary and, consequently, so is their retirement or pension. It is therefore just—due to the system's solidarity-based nature—to set a sufficiently high maximum amount that allows the higher salaries of the fund's own beneficiaries to be included, and to subject those above it to a greater participatory requirement, as they always come from obligations not contemplated among those taken into consideration when establishing the system's bases.” (Emphasis supplied) By reason of the foregoing, this Ministerial Office considers that the questioned norms do not infringe upon acquired rights, consolidated legal situations, the prohibition of retroactivity, or constitutional jurisprudence. Regarding the issue of legal certainty (seguridad jurídica), it must be considered that the State must provide a regulatory framework that defines with certainty what is prohibited, what is mandated, and what is permitted, as well as the legal consequences in the face of certain facts or acts, so that both the institutions and the governed know what to expect. This supposes, on the one hand, a certain knowledge of valid, effective, and current norms, and, on the other, a certain stability of the norms and the situations defined therein. In this regard, the Office of the Attorney General of the Republic (Procuraduría General de la República), in Opinion (Dictamen) N°C-058-2004 of February 18, 2004, stated: “Various corollaries derive from the principle of security. Among them, regulatory clarity and non-confusion, the publicity of norms, and above all, their non-retroactivity. The Law must promote certainty, and this is affected when the norm is confusing, preventing the governed from knowing what to expect, or if it is applied retroactively, affecting consolidated situations. The Constitutional Chamber has indicated in this regard: ‘Legal security...is the situation of the individual as an active and passive subject of social relationships, who, knowing or being able to know what the current legal norms are, has fundamental expectations that they will be fulfilled. This legal value seeks to provide certainty against modifications of the Law, aims to avoid the uncertainty of current Law, that is, arbitrary legal modifications, carried out without prior study and consultation...’ (Constitutional Chamber, resolution N° 8390-97 of 4:21 p.m. on December 9, 1997).” Now then, as has been previously maintained, in the case at hand, the principle of non-retroactivity of norms, constitutionally guaranteed (Article 34), has been respected, as well as compliance with the general rule; the norms of the challenged Law take effect prospectively, six months after its publication, that is, June 21, 2020, to be applied to future income from retirement or pension that exceeds the amount of six (6) base salaries of the lowest position paid in the Poder Judicial. For this reason, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution reflects the legislator's respect for the principle of legal certainty, by establishing objective criteria and clear rules for the redesign and redistribution of the resources of the special solidarity contribution in a more equitable manner.

Regarding the principles of reasonableness, proportionality, and non-confiscation, it must be noted first that the claimants do not provide proof, or at least, sufficient elements of judgment to support their claim, and the failure to meet these requirements makes the allegations of unconstitutionality unacceptable. The foregoing is because it is not possible to carry out the corresponding analysis without the existence of a coherent line of argument, separate from the presentation of subjective and highly abstract concepts. And regarding the analysis of reasonableness, this Honorable Constitutional Chamber, in Ruling N°5236-99 of 2:00 p.m. on July 7, 1999, stated: “To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide proof or at least elements of judgment on which it bases its argument, and the same procedural burden corresponds to whoever rebuts the arguments of the action, and the failure to meet these requirements makes allegations of unconstitutionality unacceptable. The foregoing is because it is not possible to carry out a reasonableness analysis without the existence of a coherent line of argument that is supported evidentially." (Reiterated in Rulings N°10153-2001 of 2:44 p.m. on October 10, 2001, and N°14392-2016 of 9:05 a.m. on October 5, 2016).

Nonetheless, the Law to redesign and redistribute the resources of the special solidarity contribution cannot be classified as irrational, disproportionate, or confiscatory, since based on the reasons that have been set forth throughout this Report, it is gathered that the regulation was issued by the competent authority, complying with all substantive procedures and indispensable requirements, in addition to the fact that the purpose, the content, and the motive are lawful, possible, clear, and precise and conform to the vision of a Social State of Law, which seeks to correct the economic distortions of the Retirement and Pension Regimes, with the aim of ensuring sufficient resources to cover the remuneration for retirements and pensions and to guarantee their financial stability and sustainability. Furthermore, it must be indicated that the contribution established by the Law to redesign and redistribute the resources of the special solidarity contribution is neither disproportionate nor unreasonable, nor abusive or arbitrary, nor can it be considered to worsen the socioeconomic conditions of judicial retirees and pensioners, especially if one takes into account that article 712 defines that in the case of retirees and pensioners of the Judicial Branch, the special contribution applies only after the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch is exceeded, which, as indicated previously, as of the date would involve remuneration exceeding approximately ¢2,550,000 colones, which surpasses not only the income of many retired and pensioned persons from other retirement and pension regimes (and by far that of the CCSS) but also that of many salaried persons or independent workers, who as of the date form part of the economically active population. Moreover, it must be considered that the contribution is gradual and progressive. In the same manner, it is rejected that the Law to redesign and redistribute the resources of the special solidarity contribution is confiscatory and consequently unconstitutional, since in accordance with its article 513, the sum of the solidarity contribution plus the totality of the deductions cannot exceed the cap of 55% of the gross amount of the pension. In this regard, it is appropriate to underline, as indicated earlier, that this cap is even higher than the minimum established by ILO Convention 102. IV.- PETITION 1.- The action of unconstitutionality filed against the Law to redesign and redistribute the resources of the special solidarity contribution, No. 9796 of December 5, 2019, be rejected. 2.- The petitioners be ordered to pay costs (…)”.

14.- By means of a brief submitted to the Chamber on June 3, 2020, Alejandra Hernández Sánchez, in her capacity as Vice Minister of Expenditures of the Ministry of Finance, responds to the granted audience and expressly states the following: “(…) On the merits i. On Law Number 9796 “Law to redesign and redistribute the resources of the special solidarity contribution” The purpose of this law is to contribute to the country's public finances by applying a redesign of the caps for the maximum pension and the pension exempt from the special solidarity contribution established on the special pension regimes. Likewise, the law seeks to grant continuity and applicability to the solidarity contribution as a contribution to achieve the sustainability of pensions, contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in tax burdens, and give sustainability to the pension systems through the new contributions. Regarding the cited law, when it was known as a Bill, by the Comptroller General of the Republic, it indicated the following: “The sustainability and fiscal impact of the pension and retirement regimes has been a constant concern for many years, and has been communicated in multiple documents of the Comptroller General's Office and other sources. In particular, regimes that function with funds, such as that of the Judicial Branch and that of Disability, Old Age, and Death, have been addressed through different studies, with a view to their long-term sustainability, given that they may come to represent a contingent obligation for the State. In the case of the regimes financed against the National Budget, which are closed to new entrants, these already generate a deficit for the Government directly. This reality has originated, as the bill points out, some reforms for the establishment of measures that contribute to sustainability, or that reduce the effect of said regimes on public finances.” In line with what was noted, this Office considers that the variation in the amount of the pension exempt from the special solidarity and redistributive contribution in the pensions of the Pension Regime indicated in its numeral 2, among these the one established in Law No. 8 called “Organic Law of the Judicial Branch”, specifically, the reform of subsection a) of article 236 bis of said normative body, is not a violation of any fundamental right, rather, it obeys the constitutional principles of reasonableness, proportionality, equity, and financial balance. The petitioners allege that the cited Law number 9796 violates the constitutional principles of equality, legal reasonableness, non-retroactivity of the law, consolidated legal situations, legal certainty and inviolability of one's own acts, and non-confiscation, which will be analyzed separately. ii. On the violation of the principle of equality and alleged discriminatory categorization of pensions: The petitioner indicates that Judicial Branch personnel contribute 13.5% of their salary to their pension, while the rest of the population contributes 3.8%. In addition, retired judicial persons continue with a similar contribution that is just as disparate in relation to the rest of the pension regimes. He affirms that the Judicial Branch pension regime is self-sufficient and does not need help for its sustainability. He accuses that the reform specifically affects one group over any other pension regime, that is, judicial retired persons, whom, due to the amount of the deductions, special contributions, CCSS, and taxes, causes their patrimony to tend inescapably to diminish progressively and acceleratedly. Likewise, he alleges that this contribution is not rational and creates inequalities for those who are pensioned, generating deterioration in their economic condition, by setting confiscatory deduction levels, which are not supported by technical and/or specialized studies involving all the socioeconomic, actuarial, and quality of life factors of those who contribute to the regime, generating economic deterioration of great proportions. He adds that Law No. 9796 injures the principle of reasonableness, posing as an essential problem the discernment of a normative decision and how this would allow unequal treatment to be reasonable. He indicates that this is the unresolved question by the law he challenges, by virtue of the fact that its foundation is inconsistent or even disproportionately burdensome for the sector of judicial retired persons, without there being any graduality that allows applying the regulations in a manner respectful of the stages of permanence in the regime. Rights which must and have to be above the “pro regime” principle so often spoken of these days and which dehumanizes the reality and the very purpose of the pension. On this particular matter, it is important to indicate that pension regimes are created within a framework of sustainability over time, in observance of the principles of solidarity and sufficiency established in the doctrine of social security. In the same manner, said sustainability is coupled with economic and financial balance in protection of public finances, given that these must maintain a balance, seeking the satisfaction and payment of the respective amounts to the pensioned persons. For this reason, it is considered opportune to reiterate the necessary weighing between the principle of budgetary balance and the benefits in charge of a Social State of Law, to which the Constitutional Chamber referred in Considering IV of ruling No. 19511-2018 at 9:45 p.m. on November 23, 2018, by which the optional consultations of constitutionality of bill No. 20,580 (now the Public Finance Strengthening Law, Law No. 9635 of December 3, 2018) were resolved, which due to its relevance is subsequently transcribed: “…On the particular matter, in the face of a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of services of constitutional relevance, the decision of the competent authorities to define and apply measures suitable to palliate or solve the problem is not only reasonable, but, even more, is unavoidable. (…) In this context, a harmonious interpretation of the principle of budgetary balance and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary that a sound management of public finances be carried out; that is, inexorably there must be a balance between the welfare rights and the state's economic solvency, since the former depend on the material possibilities propitiated by the latter, while the meaning of the latter is to strengthen the development of a solidarity-based political system, one in which the least favored strata of society find protection of their human dignity and their right to progress. Stated another way, the “ideal” Social State of Law is the “possible” Social State of Law, against which one precisely acts when the principle of budgetary balance is breached, since, in the medium term, that puts at serious risk or entirely prevents obtaining the necessary resources to sustain a “real” Social State of Law, one from which the most vulnerable can truly and effectively enjoy. (…) Corollary of what has been expressed: the non-observance of the principle of budgetary balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and to emphasize its real implementation for the sake of the principle of the Social State of Law. (…)” There is no doubt that the weak state of public finances has obliged that unavoidable measures have had to be taken and applied in the country, which contribute to achieving the balance to which the Constitutional Chamber refers, for the sake of there being economic solvency to be able to attend to the benefits in charge of the State and give sustainability to the pension regimes. The constitutional precepts that support those healthy finances compel the State to always have as a purpose to satisfy the needs of the country's inhabitants, without entailing an irresponsible increase in spending, nor neglecting some in benefit of others. In this regard, article 33 of the Constitution develops the topic of equality before the law in the following manner: “Article 33.- Every person is equal before the law and no discrimination whatsoever contrary to human dignity may be practiced”. On the other hand, we have that article 50 of the Constitution develops the topic that the State must ensure that there is an adequate distribution and management of public resources, in the following manner: “The State shall procure the greatest well-being for all the country's inhabitants, organizing and stimulating production and the most adequate distribution of wealth...”. The principle of equality does not intend to be of an absolute character, since it does not properly grant a right to be equated to any individual without distinction of circumstances or conditions, on the contrary, it demands that no differences be made between two or more individuals or groups thereof, who are in either identical conditions or in the same legal situation, so equal treatment cannot be sought when the conditions or circumstances are unequal. On this topic, in ruling number 1372-1992 dated May 26, 1992, the Constitutional Chamber held the following: “The principle of constitutional equality generates the administrative principle of equality before public burdens, that is, to give the same treatment to those who find themselves in analogous situations, excluding all arbitrary or unjust distinction against certain persons or categories of persons, consequently, persons or goods that might be singularly determined must not be affected, because if that were possible, the taxes would have a persecutory or discriminatory character. Generality is an essential condition of the tax; it is not admissible that one part of the subjects be taxed and another be exempted.” (Ruling No. 4829-1998 and in similar sense, 580-1995, 633-1994, 5749-1993 and 2197-1992) “III.- The constitutional jurisprudence through several pronouncements has managed to decant the content of the principle of equality established in article 33 of the Constitution, pointing out that through it, making differences between two or more persons who find themselves in the same legal situation or in identical conditions is prohibited, without being able to seek equal treatment when the conditions or circumstances are unequal, in principle, equal treatment is accorded to equal situations and different treatment is made possible for different situations and personal categories. That very simple formula was recognized many years ago by the Constitutional Court, to date the Supreme Court of Justice, which had the responsibility of hearing unconstitutionality appeals before the creation of this specialized Chamber. But the requirement of equality does not legitimize any inequality to authorize differentiated treatment; to determine if discrimination is truly justified, one must analyze whether the motive that produces it is reasonable, that is, if, attending to the particular circumstances of the case, diverse treatment is justified”. Said equality will be violated when the inequality is deprived of an objective and reasonable justification; therefore, a reasonable relationship of proportionality must necessarily exist between the means employed and the purpose itself. The principle of equality, together with the right to social security and other fundamental rights, seeks to be satisfied only with the participation of all. What is intended is that the protected legal right be satisfied through a shared responsibility between the individual and society. With which, the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution, seeks the protection thereof. In the present case, the cited Law No. 9796, seeks through its article 4, to lower the exempt payment base so that from this, the respective solidarity contribution may be collected in accordance with the salary regime to which the official belongs, among them the Pension Regime established in the Organic Law of the Judicial Branch, providing the following: b) Up to six (6) base salaries of the lowest-paid position in the Judicial Branch in the case of the pensions and retirements contemplated in Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937. In this way, economic balance and the sustainability of the pension regimes is being attempted, in order to maintain the same current and future benefits for all persons who opt for retirement. We must remember that precisely in accordance with the principle of equality, differentiations must be established for unequal circumstances, thus complying with the principle of equality, so that unequals are treated unequally. Under these premises, it would be unconstitutional if the pensions chargeable to the National Budget were not regulated in a gradual manner in accordance with the amount to be received, according to the contributions made and the time worked, and establishing a maximum and fair cap according to those circumstances. Currently, of the State's income, a percentage is destined for the payment of this item, while the remaining percentage comes from taxes paid by all Costa Rican persons, a situation that goes against the just distribution as a constitutional legal right and rewards some retirees with a standard of living that is very high for their life as a pensioner, just as if they were still in their productive life. With the special solidarity contribution, obligatory and staggered, contemplated by the Law 9796 in question, the minimum contribution base would be reduced to the base amount of 2 million 600 thousand colones, in the case of the Judicial Branch regime, an amount that allows an adequate standard of living and is far superior to the current Pensions of the retirees of the Disability, Old Age, and Death Regime administered by the Costa Rican Social Security Fund. On the other hand, regarding the alleged discriminatory categorization of pensions, it is worth noting that pension regimes are created within a framework of sustainability over time, in observance of the principles of solidarity and sufficiency established in the doctrine of social security. iii. On the Principle of Retroactivity of the Law: Regarding the alleged violation of the principles of non-retroactivity and patrimonial inviolability, in the present case, there is in reality no controversy over the right to the pension (one has the right to the payment of an economic benefit, but not to a specific amount), given that it rather concerns the “future” application of a special solidarity contribution, obligatory and staggered, whose minimum contribution base is reduced by virtue of the reform referred to in the cited Law 9796. On this aspect, the petitioner alleges that the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal order cannot have the consequence of removing the good or the right already acquired from the person's patrimony. He points out that what is relevant is that the state of things the person enjoyed was already defined as to its elements and effects, even if these are still being produced or have not even begun to be produced. Thus, he considers that the person has the right to the consequence, not to the rule. Therefore, he indicates that acquired rights must be understood as the rights that definitively enter the patrimony of their holder (they do not enter into the concept of mere expectations) and consolidated legal situations are those that can no longer ever be modified. He complains that with the reform established in Law No. 9796, acquired rights of all persons who have already contributed and who have been granted pensions with the guidelines dictated for the pension fund in the Organic Law of the Judicial Branch are affected, for which reason those rights must continue as they were granted before the enactment of the challenged Law, otherwise legally granted rights would be violated, affecting the economic, family, security, and quality of life situation of the majority of older adults, who depend on this right for their sustenance. He indicates that the deputies in their discussions referred to an actuarial study which points out that pensions should not be granted in amounts exceeding 2,600,000 colones, but that recommendation is for the future, at no time does the study indicate that the fixing is retroactive. He adds that, from the moment a worker enters the retirement regime, they are protected, not only by the legal and regulatory rules and criteria of the regime itself, but also by the constitutional norms and principles that enshrine their right to retirement or surround it with the special guarantees of the Fundamental Law, among these that which prohibits giving the former retroactive effect to the detriment of any person, or their acquired rights or consolidated legal situations, as well as that of “one's own acts”, according to which public authorities cannot go against their own declaratory acts of rights, except for rigorously regulated exceptions. Likewise, he considers that the Law challenged here is contrary to what is established in article 73 of the Political Constitution, which invests pensions and retirements with the character of a constitutional right. In the first instance, we must indicate that in our environment, various special pension regimes have been created by legislation, substituting the general disability, old age, and death regime administered by the Costa Rican Social Security Fund. The existence of these special regimes has been repeatedly endorsed by the Constitutional Chamber, for example, in its ruling number 846-92 at 1:30 p.m. on March 27, 1992, in which it ruled that the existence of special retirement or pension regimes is not contrary to the Constitution, as long as the contribution of the State as such is equal for all regimes. Starting from the above, it is important to point out that the Legislative Assembly has not only the possibility, but the duty, to adopt the necessary measures to guarantee the sustainability of the various special pension regimes, through the approval of the laws necessary to achieve that objective. On the other hand, it must be remembered that said principle has constitutional value, as established in article 34 of our Political Constitution, let us see: “Article 34: No law shall be given retroactive effect to the detriment of a person, or their acquired patrimonial rights or consolidated legal situations”. Likewise, the Principle of Non-Retroactivity in doctrine is defined in the following manner: “Retroactivity is understood as the projection of the temporal scope of norms to facts or conduct prior to their enactment”... Those past situations, to which present legal consequences are connected, may have been carried out entirely in the past (authentic retroactivity), or have begun in the past to continue into the present (improper retroactivity)”. A., PEREZ LUÑO: Legal Certainty, Editorial Ariel S.A., Barcelona, 1991, p. 91. That is, if the effects have already been realized, the new norm cannot have an impact on them, but it can on effects in the course of execution or those that have not generated effects. In the contrary case, improper retroactivity must be settled taking into account the occurrence of the fact to which the norm connects a legal effect. On this particular matter, the author Juan Alfonso Santamaría Pastor defines non-retroactivity in the following terms: “That is, to the extent that the extension of the effects of norms to facts and conduct that occurred prior to their validity is limited by acquired patrimonial rights and consolidated legal situations under the protection of other norms, these other norms, which are no longer formally in force, continue to regulate those rights and those legal situations (see, SANTAMARÍA PASTOR, Juan Alfonso, Foundations of Administrative Law, 1991, p. 384.)”. Thus also, the Constitutional Chamber has pronounced itself on the Principle of Non-Retroactivity in the following terms: “The concepts of “acquired right” and “consolidated legal situation” appear closely related in constitutional doctrine. It is feasible to affirm that, in general terms, the first denotes that consummated circumstance in which a thing -material or immaterial, be it a previously alien good or a previously non-existent right- has entered into (or impacted upon) the patrimonial sphere of the person, such that the latter experiences a verifiable advantage or benefit. For its part, the “consolidated legal situation” represents not so much a patrimonial plus, but a state of things fully defined as to its legal characteristics and its effects, even when these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still endure or not, but that -by virtue of a legal mandate or a judgment that has so declared it- a rule has already emerged to legal life, clear and defined, that connects a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the situation of the person is given by a logical proposition of the type “if..., then”; that is to say: if the conditioning fact has occurred, then the “consolidated legal situation” implies that the conditioned effect must necessarily also occur. In both cases (acquired right or consolidated legal situation), the legal order protects -rendering it intangible- the situation of the one who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal order cannot have the consequence of removing the good or the right already acquired from the person's patrimony, or of causing that if the factual presupposition had occurred prior to the legal reform, the consequence (favorable, it is understood) that the interested party expected from the consolidated legal situation no longer arises. Now then, specifically on this last point, it has also been understood that no one has a “right to the immutability of the legal order”, that is, that the rules never change. Therefore, the constitutional precept does not consist in that, once a rule that connects the fact with the effect is born to legal life, it cannot be modified or even suppressed by a later norm; what it means is that -as was explained- if the conditioning assumption has been produced, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the previous norm from arising. This is so because, it was said, what is relevant is that the state of things the person enjoyed was already defined as to its elements and effects, even if these are still being produced or have not even begun to be produced. In this way, what the person has the right to is the consequence, not the rule...”. Ruling No. 2765-97 at 3:03 p.m. on May 20, 1997. From the foregoing, it is understood that an element to stipulate whether a legal norm affects retroactivity and, to establish the application of laws in time, is the existence of legal situations. Now then, the consolidated legal situation is a subjective situation, because it is the consequence of an individualization of the normatively established rule, and which grants or recognizes a right or removes a quality or legal status. Thus also, in ruling number 2765-97, at three hours and three minutes in the afternoon on May twentieth, nineteen ninety-seven, the Constitutional Court pointed out regarding the scope of the Principle of Non-Retroactivity what is detailed below: "In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal order cannot have the consequence of removing the good or the right already acquired from the person's patrimony, or of causing that if the factual presupposition had occurred prior to the legal reform, the consequence (favorable, it is understood) that the interested party expected from the consolidated legal situation no longer arises. Now then, specifically on this last point, it has also been understood that no one has a ‘right to the immutability of the legal order’, that is, that the rules never change. Therefore, the constitutional precept does not consist in that, once a rule that connects the fact with the effect is born to legal life, it cannot be modified or even suppressed by a later norm; what it means is that – as was explained- if the conditioning assumption has been produced, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the previous norm from arising. This is so because, it was said, what is relevant is that the state of things the person enjoys was already defined as to its elements and effects, even if these are still being produced or have not even begun to be produced. In this way, what the person has the right to is the consequence, not the rule". In the case under analysis, the new precept is not suppressing the granted benefit. All it does is regulate a future situation, in the sense that it expands the grounds for restitution by virtue of eventual future acts, in which the beneficiary could incur.

From this perspective, the norm has no retroactive effect whatsoever, one that affects a vested right (derecho adquirido) or its consequences or effects, since it is situated in the future. Moreover, it is sufficient for the administered party to determine not to incur one of the new grounds, in order to avoid the future application of the new law.” Thus, retroactivity manifests when a new legal norm attempts to invade the domain of application of the prior one, applying itself to facts that occurred before its entry into force. If one wishes to establish whether a norm is retroactive, it must be defined whether its application is for the future, or, on the contrary, if it attempts to disrupt facts or situations already occurred or in the course of execution. In light of the provisions of cited Article 34, it must be understood that the referred contribution must be applied to pensions that are in progress and those granted in the future, that is, there is no violation of the principle of non-retroactivity because it does not fulfill the premise contained in said article. The foregoing, provided that the budgetary condition established by the challenged norm is met, that is, that the amount received as a pension exceeds more than six times the lowest base salary paid in the Judicial Branch for the case of pensions and retirements under Law No. 8, Organic Law of the Judicial Branch, dated November 29, 1937. Furthermore, as we have already indicated, with the intention of applying said contribution to pensions, it is not intended that pensioned persons return the amounts that were paid to them up to June 21, 2020 (vested right (derecho adquirido)) as pension amounts, since the application of the deduction for said contribution is being carried out for the future. Said payment by way of contribution obeys the objectivity required to maintain both the economic equilibrium of the resources and the security for current and future pensioned persons, and thus provide stability to the regime, which can only be achieved by applying the repeatedly cited Law Number 9796; therefore, it in no way implies a violation of the Principle of Non-Retroactivity as the claimant makes it appear. It is reiterated that the stability or sustainability of pension regimes must not suffer a financial imbalance; on the contrary, what is sought is that with the application of the norm, and therefore the referred contributions, permanence is provided to the retiree and their pension is not compromised, such that other solutions that could compromise the existence of the budget allocated for that purpose do not have to be sought. In the case under study, there is no injury to the reproach of non-retroactivity, since what the challenged norm has provided is the obligatory application ex nunc (from now on) and not ex tunc (from then on), of a determined special, solidarity-based, mandatory, and staggered contribution; whose minimum contribution base is reduced, by virtue of the referred reform, to apply the charge to a base amount of 2 million 600 thousand colones, both to future pensions and to pensions and retirements in the course of payment. As of the effective date of the cited Law Number 9796 and into the future, the rules regarding the establishment of that minimum threshold for the application of pensions are different, thereby attempting to compensate past imbalances and guarantee the survival of the system; which also does not affect vested rights (derechos adquiridos), since what has been recognized is a fundamental right to a pension, but not to a specific amount. According to the dynamic meaning of vested rights (derechos adquiridos), the emergence of the right must be differentiated from its effects; the right arises from the exhaustion of the hypotheses provided in the regulations; that is, they correspond to exhausted situations, while the effects are projected into the future and can be varied by virtue of new norms. Thus, the distinction between rights and their effects allows the application of new laws to the successive effects of a right, without this implying that such laws have retroactive effects. It is concluded that these dynamic theses suggest that vested rights (derechos adquiridos) can have two components: an intangible core represented by the right itself, and dynamic elements, which can vary over time and are related mainly to the conditions under which the right can be exercised or to the periodic benefits arising from it. Thus, based on that conceptual premise, it can be affirmed that the Constitution protects vested rights (derechos adquiridos) against normative retroactivity; that is, situations already formed and not the conditions of exercise of the right, which means that whoever is enjoying a right whose effects are consolidated in a staggered manner or in a successive tract—such as a pension, for example—has their right protected by the Constitution, but the effects that have not yet been consolidated are modifiable by virtue of constitutional purposes and subject to the limits that the Charter itself imposes. Likewise, it is necessary to indicate that although a fundamental right to a pension exists, widely consolidated in the jurisprudence of the Constitutional Chamber, said Court has also specified that there is no right to the benefit derived from that right being for a specific amount, since "…the pension or retirement can be varied according to circumstances, whether to reclassify the benefit by increasing or decreasing it, when the contribution of the benefits is not sufficient to cover their quota in the cost of the regime..." (Judgments 1925-91 from 12:00 hours on September 27, 1991, 2379-96 from 11:06 hours on May 17, 1996, and 3250-96 from 15:27 hours on July 2, 1996). Thus, in Judgment 1925-91 from 12:00 hours on September 27, 1991, said Court ruled on a constitutional consultation filed by several deputies, on the validity of a comprehensive reform to the Law on Pensions and Retirements of the National Teachers. Among the consulted issues was the validity of then Article 6 of the bill, since it was considered that it could violate the principle of constitutional reasonableness by providing that any person enjoying a pension would be excluded from the possibility of holding positions in the Public Administration. This Chamber, in the mentioned judgment, considered that the norm did not violate the Constitution, but, on the contrary, was in accordance with the principle contained in Articles 50, 56, and 74 of the Political Constitution, according to which, the State must promote the most adequate distribution of wealth, organizing production and promoting that everyone has honest and useful occupation; since resources and means of subsistence being limited, it is not unreasonable to restrict the simultaneous receipt of a pension and a salary from the State: “The Political Constitution in the Chapter on Social Rights and Guarantees declares its adherence to the Christian principle of social justice, which is the cornerstone of all solutions that the legislator must dictate regarding the social question. Thus, there are values and principles constitutionally assumed such as solidarity, equality, and the effective participation of all in the economic life of the country, which are an expression of that essential cause of the social. In effect, Article 50 establishes that the State must procure the greatest well-being of all the inhabitants of the country, having to organize and stimulate production and the most adequate distribution of wealth; Article 56 states that the State must procure that everyone has honest and useful occupation; and Article 74 declares that the legislation enacted to organize the factors that concur in the production process (social and labor legislation), must essentially be based on the indicated principle. Consequently, starting from the fact that the means of production and subsistence are not unlimited, that a sector of the population, as is public and notorious, lacks justly remunerated occupation, and that social rights and guarantees are based on these essential principles and values, the provision intended to be approved is not irrational. If one of the State's purposes is the better distribution of wealth to achieve, among other things, the incorporation of all into productive life, it cannot be contrary to reason to prevent the accumulation of resources in some to the detriment of the needs of others, which would implicitly entail the accumulation of privileges not based on a situation of necessity, to the detriment of those who, legitimately aspiring, see access to the right to work, to honest subsistence, and to their self-realization closed, for causes beyond their own will. The Chamber does not share the terms of the Consultation, in the sense that the bill generally excludes retired or pensioned persons from holding positions in the Public Administration. What the norm proposes is to reiterate a concept of long-standing identity, which is to avoid simultaneity in the performance of a public function and the enjoyment of a retirement benefit.” Now, in the specific case of special contributions, this Chamber, in its Judgment No. 3250-96 from 15:27 hours on July 2, 1996, indicated that such contributions are not unconstitutional because they find their basis in the social nature of the right to retirement, a nature that is inscribed within the principles that make up the Social State of Law, embodied in Article 50 of the Political Constitution. In the mentioned resolution, the Constitutional Chamber ratified the validity of a contribution very similar to the one challenged in this action. On that occasion, it indicated the following: “... the contribution levied on the pensioners of the National Teachers' Pension Regime in Article 12, and the exclusion of said contribution as a vested right (derecho adquirido) in Transitory Provision I, both of Law Number 7268, do not injure Article 34 of the Political Constitution, because they form part of the list of limitations that have validly been part of the fundamental right to retirement held by the claimant since their entry and from which they cannot withdraw because they acquired them along with it. (…) The manner in which Article 12 of Law 7268 regulates the contribution levied on the pensioners of the National Teachers' Regime does not contravene Article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only fault noted when evacuating the Legislative Consultation at the time and which Parliament undertook to amend) thus leaving practically intact an amount sufficient in the Chamber's judgment to guarantee the effective enjoyment of the right to retirement; and second, because the amounts charged for the different excesses that occur in specific cases have a clear protective and standardizing purpose for the benefit of the group of persons for whom the regime was established; that is, they are directed at the social welfare of all or the vast majority of the members for whom the regime was conceived. This may entail that in some retirement systems there are redistributive norms for those cases that could be called, if one wishes, extraneous to the regime's raison d'être and which must therefore undergo a standardization process to assimilate the received benefits (to the extent necessary and possible) to those received by the majority of the regime's beneficiaries, consequently having to make—if it is their desire to continue enjoying the system's benefits—a greater contribution for receiving a greater consideration in relation to the persons taken into consideration when designing the system—in this case, the teachers—, who receive a substantially lower salary and, consequently, whose retirement or pension is also lower. It is therefore just—due to the solidarity-based nature of the regime—to set a sufficiently high maximum amount that allows including the higher salaries of the fund's own beneficiaries and to subject to greater participatory demand those above it, because they always come from obligations not contemplated among those taken into consideration when establishing the system's bases.” (Emphasis not in original) In this sense, it must be taken into consideration that the guarantees that the Constitution provides in favor of pensioned persons cannot be interpreted in the sense of curtailing the legislator's exercise of the function that the Constitution itself has entrusted to them, because that would mean petrifying the dynamic exercise of legislating on determined groups of individuals, to the frank detriment of the generality. It is for this reason that this Office considers that the challenged norms do not infringe vested rights (derechos adquiridos), consolidated legal situations, the prohibition of retroactivity, or the doctrine of the survival of the abolished law. iv. On vested rights (derechos adquiridos) and consolidated legal situations Our Political Constitution establishes the rules that govern the validity and effectiveness of legal norms; thus this Fundamental Charter indicates that the legal norm maintains its validity and the possibility of producing legal effects until it is repealed by a later one2 or declared unconstitutional by the Constitutional Chamber. Which means that legally the law is obligatory and applicable as long as the act of the corresponding authority aimed at putting an end to that obligatory nature does not occur. The foregoing does not mean in any way that the Administration can or must disregard vested rights of good faith (derechos adquiridos de buena fe) or consolidated legal situations upon the disappearance of a norm, because such an action would go against the provisions of Articles 34 of the Constitution4 and 193 of the Law of Constitutional Jurisdiction. Indeed, Article 193 of the Law of Constitutional Jurisdiction establishes that the provision contained in Article 91 of that body shall not be applied to those relationships or legal situations that have been consolidated by prescription or expiration, by virtue of a judgment passed with the authority of material res judicata, or by consummation in the facts, when these are materially or technically irreversible, or when their reversal seriously affects vested rights of good faith (derechos adquiridos de buena fe); all the foregoing, without prejudice to the powers of the Constitutional Chamber, in accordance with said article. Now, since an adequate understanding of the legal scopes of the concepts "vested rights of good faith (derechos adquiridos de buena fe)" and "consolidated legal situations (situaciones jurídicas consolidadas)" is relevant, we will set forth below what the doctrine and administrative and judicial jurisprudence have said about it. For Costa Rican doctrine, a right is acquired or a legal situation is consolidated when the factual situation provided by the norm is realized so that the effects that the same provision regulates are produced. For his part, Diego Baudrit Carrillo, a Costa Rican jurist, makes an accurate distinction between vested rights (derechos adquiridos) and mere expectations of a right, pointing out that the former are those that have definitively entered the holder's patrimony and that therefore a third party cannot dispossess them of them, while the expectation can disappear by a private will alien to its holder. In this sense, German Cascante Carrillo points out to us that a vested right (derecho adquirido) is that which by reason of the law itself is irrevocably and definitively incorporated into a person's patrimony; therefore, he adds to us that when a new legislation clashes with, suppresses, or modifies the preceding legal situation, in principle and due to the non-retroactivity of laws, unless expressly indicated otherwise, vested rights (derechos adquiridos) are respected by the new law. For the delimitation of the concept of vested right (derecho adquirido), the jurist García Trevijano sets forth three criteria. The first of them emphasizes the mode of acquisition of rights, considering as such those recognized solely in particular titles, but not those derived from a law. For the author, this position is not convincing, since there is "no doubt that from a singular law, vested rights (derechos adquiridos) can derive like any other legal act (…)." The second criterion proposes the differentiation of the subjective right and the reflexive right and, also, between the right in itself and the expectation of the right. In this way, only those cited in the first place in each of the two alternatives could be considered as vested rights (derechos adquiridos). This thesis, of clear German inspiration, understands that the central core of vested rights (derechos adquiridos) would be constituted by patrimonial rights and fundamentally by property. The combination of the previous thesis with the one proposed below provides a method for the definition of the concept being analyzed. This third criterion proposes the investigation in each specific case, of whether the right has been exercised or at least, if it has been able to be exercised. Only in the event that one could answer affirmatively to the previous questions, could one speak with certainty of the existence of a vested right (derecho adquirido). By reason of the foregoing, it is observed that for a vested right (derecho adquirido) to exist, the fulfillment, by the holder of the right, of the requirements established by the legal order is necessary. The foregoing so that it is incorporated into their patrimony irrevocably, becoming a certain and unmodifiable right of which the holder can no longer be dispossessed; not even by virtue of the enactment of a new legislation. This is because a vested right (derecho adquirido) exists when all the normative assumptions provided in the law in force as the generating cause of such right have been realized. Now, the consolidated legal situation (situación jurídica consolidada) is the position in which the holder of the vested right (derecho adquirido) finds themselves, whether it is a product of law or contract. For example, the creditor finds themselves in a consolidated legal situation (situación jurídica consolidada) because they are the holder of a vested right of credit. While the vested right (derecho adquirido) is the credit, their position as creditor constitutes a consolidated situation. On this matter, the Constitutional Chamber has repeatedly ruled regarding the concepts of “vested rights of good faith (derechos adquiridos de buena fe)” and “consolidated legal situations (situaciones jurídicas consolidadas)”, pointing out that these figures are logical consequences of the constitutional guarantee of the non-retroactivity of the law, enshrined in Article 34 of our Political Constitution. Furthermore, that constitutional Court has pointed out that the word "law" must be understood in its generic sense, as referring to legal norms in general. Since its beginnings, the Constitutional Chamber has been pointing out that the principle of non-retroactivity, like the others related to fundamental rights or freedoms, is not merely formal, but also material. In this way, it is affected not only when a new norm or the reform of a prior one illegitimately alters vested rights (derechos adquiridos) or situations consolidated under the protection of the prior norm; but also when the effects, interpretation, or application of the latter produces an unreasonable or disproportionate harm to the holder of the right or situation that it itself enshrines. For the Constitutional Chamber, a legal situation can be consolidated with a judicial sentence that declares or recognizes a disputed right, and also under the protection of a legal norm that establishes or guarantees determined consequences that a later law cannot disregard without incurring a defect of unconstitutionality, due to an infraction of Article 34 of the Political Constitution. The concepts of "vested right (derecho adquirido)" and "consolidated legal situation (situación jurídica consolidada)" appear closely related in constitutionalist doctrine. The vested right (derecho adquirido) denotes that consummated circumstance in which a thing—material or immaterial, be it a previously alien good or a previously non-existent right—has entered into (or had an impact on) the patrimonial sphere of the person, such that the latter experiences an advantage or verifiable benefit. Also, the Constitutional Chamber16 has pointed out that the vested right (derecho adquirido) is that which has been obtained firmly, due to the validity of the norm, even though it has formally ceased to exist, so that it has given foundation to the enjoyment of the right, to the extent that there is no need to resort again to the annulled text, because if this were the case, it is evidently no longer possible to grant any benefit, given that it was annulled. For its part, the consolidated legal situation (situación jurídica consolidada) represents not so much a patrimonial plus, but a state of affairs fully defined as to its legal characteristics and effects, even though these have not yet extinguished. What is relevant regarding the consolidated legal situation (situación jurídica consolidada), precisely, is not that those effects still last or not, but that—by virtue of a legal mandate or a judgment that has so declared—a clear and defined rule has already emerged to legal life that connects a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type «if..., then...»; that is to say: if the conditioning fact has occurred, then the "consolidated legal situation (situación jurídica consolidada)" necessarily implies that the conditioned effect must also occur. In both cases (vested right (derecho adquirido) or consolidated legal situation (situación jurídica consolidada)), the legal order protects—making it intangible—the situation of the one who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal order cannot have the consequence of subtracting the good or the right already acquired from the person's patrimony, or of causing that, if the factual presupposition had occurred prior to the legal reform, the (advantageous, it is understood) consequence that the interested persons expected from the consolidated legal situation (situación jurídica consolidada) no longer arises. Now, specifically in relation to the latter, it has also been understood that no one has a "right to the immutability of the legal order," that is, for the rules to never change. Therefore, the constitutional precept does not consist in that, once born to legal life, the rule that connects the fact with the effect cannot be modified or even suppressed by a later norm; what it means is that—as explained—if the conditioning assumption has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the rule of the prior norm from arising. This is so because, it has been said, what is relevant is that the state of affairs that the person enjoyed was already defined as to its elements and its effects, even though these are still being produced or even, have not begun to be produced. In this way, what the person has a right to is the consequence, not the rule. Now, in the case sub examine, it is feasible to exemplify the previous concepts based on the elements of the specific case. In this way, the contribution will be paid on the excess over the amount of six (6) base salaries of the lowest paid position in the Judicial Branch; then we can say that: a) The protection of the vested rights (derechos adquiridos) of the pensioned persons means, in this case, that notwithstanding the entry into force of the mentioned Law Number 9796, all the patrimonial rights of said pensioned persons must be deemed unrepeatable, that is, the pensioned person does not have to pay any money to the Administration for the amount that they contributed as a contribution to the respective regime, before the entry into force of the challenged law. To the extent that they had definitively entered the patrimony of these persons prior to the entry into force of the new law, because it would be absurd—and unconstitutional—to pretend that they must be returned, or something similar. b) The protection of consolidated legal situations (situaciones jurídicas consolidadas) implies that, although the interested persons could not pretend that the norms in question (and, with them, the rule they created) could never again be the object of reform, they did have the right to expect that with respect to themselves and all the other persons who were subject to the same state of affairs, the consequence they anticipated would occur. That state of affairs was characterized by the rule that causally connected their factual situation with the effect provided for in the norm. The fact that the rule has been reformed cannot have the virtue of producing that for them the consequence they were already entitled to no longer arises. This could only occur, ex nunc, for those who, as of the date of the legal reform or the declaration of unconstitutionality, had not acquired that title. This means that all payments that the pensioned persons had enjoyed before the legal reform that modifies the amount exempt from the special, solidarity-based, and contributory Contribution, can be categorized as vested rights (derechos adquiridos) in the terms previously set forth. After said reform, only those consolidated legal situations (situaciones jurídicas consolidadas) would be protected, that is, those situations whose effects have already been produced under the protection of the norm that was reformed. On this last aspect, it is important to insist, for the purpose of clarity, that the fact that a pensioner had been enjoying for "x" number of years a pension without the application of any additional contribution, as a regime contribution, does not mean that they have a vested right (derecho adquirido) or a consolidated legal situation (situación jurídica consolidada) regarding this benefit, because once the norm was reformed, there is no longer a legal basis that covers said payment; let us remember that the enjoyment of a specific amount as a pension in the future cannot be classified as a vested right (derecho adquirido) or a consolidated legal situation (situación jurídica consolidada), but rather as an expectation of a right. Added to the foregoing, it is necessary to indicate that the legislator can modify the conditions of pension regimes without this implying the violation of any vested right (derecho adquirido). Moreover, this Honorable Chamber has stated that the implementation of limitations to pension regimes does not represent any problem of constitutionality, provided that said limitations adhere to the principles of reasonableness and proportionality. Hence, the amount of future pensions can vary provided they are not wholly suppressed, because if they are suppressed, this would imply that the right to the pension has been revoked, disregarding the protection of vested rights (derechos adquiridos). Ultimately, the guarantees that the Constitution provides in favor of pensioned persons cannot be interpreted in the sense of curtailing the legislator's exercise of the function that the Constitution itself has entrusted to them, because that would mean petrifying the dynamic exercise of legislating on determined groups of individuals, to the frank detriment of the generality. v. On the constitutional principle of rationality and proportionality. As part of the foundation set forth by the plaintiff in their arguments, they indicate that the percentages established in the challenged law are applied to gross amounts, which generates a double charge on the monies received, since this deduction is applied on mandatory deductions that each pensioned person must pay, such as income tax and the percentage of 13% mandatory contribution to the regime, becoming a double tax rate on the same benefit, which they consider improper and evidences the tax voracity that is intended to be imposed on pensions. Due to the foregoing, they also consider that the challenged regulation is contrary to Article 40 of the Political Constitution. Now, in order to carry out an examination of this aspect, it is necessary for the plaintiff to provide proof or, at least, elements of judgment on which to base their argument, given that the non-fulfillment of these requirements makes the claims of unconstitutionality unacceptable. The foregoing, because it is not possible to make an analysis of "reasonableness", without the existence of a coherent argumentative line that is supported by evidence. From the study of the action, it is noted that not only does it not clearly and concisely indicate the reasons that lead them to conclude that the challenged norm is unreasonable, but also that it does not provide any proof that allows reaching that conclusion, transforming the debate into the exposition of subjective and highly abstract concepts. On the other hand, this case does not present the characteristics of an evident and manifest situation of "unreasonableness" that is also easily perceptible; rather, it could be justified that the norm conforms to the purpose of the legislative reform, which is to correct the economic distortions of the pension system charged to the National Budget, with the aim of ensuring the payment of pensions and guaranteeing the financial stability of the system. vi. On the violation of the principle of protection for older adults.

In addition to the foregoing, regarding this argument, the plaintiff indicates that the right to a pension forms part of the list of rights to be protected by the constitutional judge, rights which, although they may be limited, these limitations must be imposed in accordance with international conventions with supra-constitutional weight that increase the spectrum of protection of the rights of working persons: for example, Convention No. 102 of the ILO. Based on the foregoing, he alleges that the pension fund of the Judicial Branch cannot be modified through the law he challenges in this venue, first, because it undermines the superior value of international norms; second, and more importantly, because it must be interpreted in accordance with the pro homine principle in favor of retired persons, that is, the non-impairment of their fundamental human rights and those of vulnerable groups: much less to regulate aspects that are not inherent to the pension regime itself, but rather to be diverted to sustain public finances or other pension regimes that have been neglected and are not efficient in their management. For the foregoing reasons, he considers that the challenged legislation is contrary to Article 7 of the Political Constitution and has irreversible consequences for the retired elderly population. In this regard, we must indicate that although there is a fundamental right to a pension widely consolidated in the jurisprudence of the Constitutional Chamber, it has also been specified that there is no right to the specific amount of the benefit derived from that right, since “…the pension can be varied according to circumstances, either to recalibrate the benefit by increasing or decreasing it, when the contribution of benefits is not sufficient to cover its share in the cost of the regime...". (Rulings 1925-91 of 12:00 p.m. on September 27, 1991, 2379-96 of 11:06 a.m. on May 17, 1996 and 3250-96 of 3:27 p.m. on July 2, 1996, 1625-2010 of 9:30 a.m. on January 27, 2010, 19485-2018 of November 21, 2018 and 236-2019 of 12:02 p.m. on January 9, 2019). Recapitulating, nothing within the constitutional framework opposes the legislator introducing reforms to the Social Security system and regulating or modifying, for the future, the normative elements that legal operators must take into account to recognize the pension amount in special contributory systems charged to the National Budget, which it does in exercise of the powers that the Political Constitution itself has entrusted to it and which entail a certain margin of discretion, allowing it to validly introduce the reforms that, according to economic needs and social conveniences, as well as the evolution of time, it deems necessary for the effectiveness and guarantee of the right to a pension, it being understood that the elderly person is never left unprotected, as it is always done under the principles of reasonableness and proportionality. Now, regarding the alleged absence of fair studies in accordance with the provisions of Norm 102 of the International Labour Organization (ILO), it is important to mention that, within the limits to the legislative power to configure the various special substitute pension regimes, is the respect that must prevail for the constitutional principles of reasonableness and proportionality, as well as the necessary adjustment of the law to the prohibition of confiscation, and the best way to avoid infringements of those constitutional principles is by basing the reform intended to be carried out on technical-actuarial studies that demonstrate the necessity, reasonableness, and proportionality of the initiative. It is worth mentioning that the required studies were requested with a view to long-term sustainability, and given that the referred reports are available, there would be no unconstitutionality in that sense. On this point, the Comptroller General of the Republic indicated in report number DFOE-SAF-0336 of July 1, 2019, that equity and similarity in the conditions of the different regimes must prevail. On the subject, the Constitutional Chamber has indicated that “…this possibility of modification that the State has agreed in its favor finds limits not only from the Political Constitution, but from International Law, among which those set in Convention number 102 of the International Labour Organization regarding the minimum standard of social security stand out, which points out, as relevant here, that the benefits granted in application of said Convention and the administrative expenses must be supported by technical studies and not be implemented or modified by a political, arbitrary, or capricious decision of the Administration, benefits among which is the amount of contribution to the pension regime by the employee and the State as such and as employer, and which obligates basing those variations on actuarial studies related to the solvency of the regime to be affected.” (Judgment No. 2379-96 of 11:06 a.m. on May 17, 1996). Evidently, the legislator has a certain margin of discretion to regulate the conditions under which special pension regimes must operate, but that margin of discretion is not absolute; rather, it must find support in objective data emanating from technical studies. Regarding the possible infringement of ILO Convention 102, we must indicate that articles 65.3 and 67.a of that instrument expressly establish that a maximum for its amount may be prescribed (meaning determined by national legislation or by virtue thereof, according to art. 1.1 Ibid.), subject to the rule set by the competent authorities, provided that this maximum respects the minimum established by the Convention itself, which in the case of old-age benefits is 40% of the total wage of the ordinary unskilled worker (arts. 65, 66, 67 Ibid.); which constitutes a parameter of constitutionality (conventionality) of the pension amount. In this regard, the plaintiff points out that, upon retiring, the attention to family obligations does not end. However, setting a ceiling on the calculation of the pension right is constitutionally valid, so this Ministry considers that the challenged norms do not infringe at any time the right to a dignified remuneration contained in Article 3 of the Universal Declaration of Human Rights, nor do they harm what is established in the Inter-American Convention on Protecting the Human Rights of Older Persons (approved by Costa Rica through Law No. 9394 of September 8, 2016), nor the Comprehensive Law for the Elderly Person, since the reform introduced in Law No. 9796 obeys the constitutional principles of reasonableness, proportionality, equity, and financial balance, and with it seeks, rather, to give future sustainability and stability to pension systems. Furthermore, according to the judgment of February 28, 2003, in the case of five pensioners –vs− Peru, the Inter-American Court of Human Rights admitted that through a law in the strict sense and for public or social purposes (reasonable financial criteria –fiscal savings–, which, with a legitimate aim, tend to preserve the general welfare, justified in the financial stability of the State in general, and in particular, of the public sector pension system), the patrimonial effect of Social Security pensions and especially their amount can be limited or reduced “for the future”; implying that the restrictions can validly encompass existing pensions (in the course of payment) and not only future ones accrued from the effective date of said law. vii. On the intangibility of own acts and legal certainty. On the subject of legal certainty, the plaintiff states that the reform to the Judicial Branch pension regime flagrantly contravenes the principle of legal certainty, understood as the citizens' confidence in valid and current legal systems, so that there can be no breaches to this system that dissolve their rights. He argues that this parameter of constitutionality in pension regimes forms part of our legal system and in this way means protection and confidence for those who maintain periods of stay in pension regimes. In the case of the reform to the Judicial Branch pension fund, this variable is aggravated because it is a mandatory fund to which workers in the sector must submit independently of their will. Within this framework of ideas, the variations imposed by the bill break that confidence and security of judicial personnel considering the overwhelming difference proposed in the reforms, introducing a contribution for the concept of solidarity for the sustainability of other pension regimes. He points out that, in the case of retired persons, the situation is extremely burdensome, since they have developed a life project, acquiring long or medium-term economic commitments and suddenly, counting on that legal certainty, they see their conditions abruptly modified with severe impairments to their patrimonial sphere, which in the case of retired persons is increased by anguish, frustration, and impotence at being able to do something about it, at the time of their life when they should be calm and secure with their retirement, after a lifetime of dedication and work for the institution. In addition, he considers these reductions to be confiscatory, since, as he explains in the law he challenges, deduction percentages of 35% are set for those pensions exceeding 6 base salaries of the lowest position in the Judicial Branch, approximately the base is 2,530,000 colones and on the excess 35% is charged, 45% on the excess of 3,200,000 colones and 55% on that of 4,200,000 colones (approximate data), percentages set without any technical study, making them arbitrary and confiscatory, appropriating money that by acquired rights belongs to retired persons. Finally, the plaintiff alleges that through Law 9796, the legal certainty granted by international treaties, the Constitution, the laws of the Republic, and the Rulings of the Constitutional Chamber is ignored. This is not true, since the application of the challenged norm reflects respect for the principle of legal certainty by the legislator, by only acting in accordance with the legal provisions in force for the application of the ceiling on pensions, redesigning and redistributing the resources of the special solidarity contribution in a more equitable manner. In the same vein, it is convenient to emphasize that with the implementation of this Contribution, the safeguarding of a series of principles has been sought, such as the Pro Fundo Principle. The Pro Fundo Principle has been developed by the Second Chamber of the Supreme Court of Justice, in rulings numbers 1995-0390 of four o'clock in the afternoon on November 15, 1995, 2006-0213 of nine hours ten minutes on April 7, 2006, and 2010-0075 of two o'clock in the afternoon on June 3, 2010, which state that: “According to the jurisprudence that, as doctrine, contributes to interpreting, delimiting, and integrating the scope of legal norms, the solution given to the dispute by the ruling under review is also not the correct one; since, when pensions and retirements are discussed, the \”protective principle\” in its derivation of the \”in dubio pro operario rule\” is not applicable, because when it comes to social security matters, any doubt must be resolved in favor of the debtor, since the maintenance and validity of the Pension Fund must prevail in the interest of potential beneficiaries; a criterion that is in line with precept 17 of the Labor Code, which mandates interpreting the legal system, not only in accordance with the interest of the worker, but also in harmony with social convenience;(…)” “Regarding the first argument, the appellant is not correct, since the pro fundo principle is not reduced to a doctrinal thesis from many years ago, but is of wide application at the jurisprudential level, in the search to give the different pension funds, whether administered by the Caja Costarricense de Seguro Social or by some authorized entity, the greatest stability and duration, to achieve the development and execution of the principle of solidarity that also governs in social security matters. On the application of the pro fundo principle, this Chamber has said the following: \”IV.- The Court has also not incurred in an improper application of the in dubio pro operario, nor of the most beneficial condition. Regarding the first, repeatedly, this Chamber has pointed out that in social security matters, this principle gives way in favor of a pro fundo interpretation, which nourishes the benefits for the universality of current and potential beneficiaries.\”” For the reasons stated, it must be considered that although it is true that the pension or retirement is a right granted to pensioned or retired persons, it cannot be \”considered as\” unrestricted or that its enjoyment cannot be limited, especially when speaking of public funds. In this sense, the Constitutional Chamber in its ruling number 20100001625 of January 27, 2010, referring to another of its rulings, points out the following: “…within the entire universe of limitations, conditions, and restrictions that the fundamental right to a pension may suffer, there will be a group of them that can be considered constitutionally valid provided they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the exercise of the right itself according to its nature and purpose. (…) what must be kept in mind is that the study and pronouncement on each particular case must take into account that any limitation and restriction must meet the requirements established by this venue, of being reasonable and proportionate to the nature and purpose of the pension right and also derive from the norms that recognize and guarantee them, as has been explained.” From the foregoing, it is deduced that not every restriction to the fundamental right to a pension is unconstitutional by itself, but only that which is not reasonable and proportionate (…) that ceiling, in order not to be unreasonable, disproportionate, or arbitrary, must maintain some relationship with the income the active servant received, precisely because it is based on that income that the contribution to the regime is calculated (…) IV. The right to a pension and the Social State of Law. Articles 50, 56, and 74 of the Political Constitution configure “the model of the social and democratic State of Law” (Res. 9255 of 4:03 p.m. on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law “entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discrimination” (Res. 13205 of 3:13 p.m. on September 27, 2005). Consequently and based on the Social State of Law, “our Political Constitution contemplates a set of prestational rights related to the protection of… workers” (ibid), as is the case of the right to a pension. Precisely, as a consequence of the foregoing, this same model fulfills the functions proper to any fundamental principle, by becoming a parameter of normative validity, hermeneutic criterion, and functional integrating instrument: “In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of Law. Specifically, regarding constitutional control, the Principle of the Social State of Law is useful as a parameter of normative validity, hermeneutic criterion, and functional integrating instrument of the legal system” (Res. 13205 of 3:13 p.m. on September 27, 2005). V.- On the ceiling on the pension amount. The first thing that must be noted is that the existence of a ceiling on the pension amount is not by itself unconstitutional, given that in social security matters, solidarity in sustaining the fund that backs the disbursements of those who benefit from it is vital so that all those who contribute to the pension regime can continue to benefit from that right, given that resources are not unlimited. When setting the ceiling, the legislator can choose one or several parameters with different values or weightings, which must seek the objective for which that limit on the benefit is imposed. Consequently, the parameter used may refer to endogenous or exogenous elements to the regime itself. However, it is indeed essential that the procedure followed for choosing these parameters responds to the constitutional principles of reasonableness and proportionality.(…) This Court has previously pointed out that the principle of reasonableness arises from the so-called \”substantive due process\”, that is, that public acts must contain a substratum of intrinsic justice. When it comes to the restriction of certain rights, this rule imposes the duty that said limitation be justified by a sufficiently weighty reason to legitimize its contradiction with the general principle of equality. The foregoing, because a rights-limiting act is reasonable when it meets a triple condition: it must be necessary, suitable, and proportionate. The necessity of a measure directly refers to the existence of a factual basis that makes it necessary to protect some good or set of goods of the community - or of a specific group - through the adoption of a differentiation measure. That is, if said action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid either. Suitability, for its part, involves a judgment regarding whether the type of restriction to be adopted fulfills or does not fulfill the purpose of satisfying the detected need. The suitability of the measure would indicate that other mechanisms may exist that better solve the existing need, some of which may fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, so that the limitation is not of a markedly greater entity than the benefit sought to be obtained for the benefit of the community. Of the last two elements, it could be said that the first is based on a qualitative judgment, while the second starts from a quantitative comparison of the two objects analyzed. In the present case, the legislator chose to establish a ceiling as a social security measure, which can be considered valid and necessary, as already stated, to guarantee the funds of the pension system based on the principle of social solidarity…”. Following this line of ideas, the right to a pension or retirement, while it is true safeguards a constitutional character, it is also true that it cannot be unrestricted, as has been repeatedly pointed out, since at a given time, it may vary before the different circumstances that arise in society; indeed, we find in Comparative Law doctrine that accords with this legal position, so we consider it important to cite the ruling of the Spanish Constitutional Court, which in its judgment number 134/1987 stated the following: “…the Court declares the non-existence of a subjective right to a pension of a determined amount born from the fact of having made a determined contribution, denies that the imposition of maximum ceilings affects the concept of sufficiency. It defines the concept of adequate pension considering the system as a whole, without forgetting that it is a matter of administering limited economic resources and understands that the non-admission of maximum ceilings implies the denial of the principle of solidarity. It also considers, implicitly, that non-regressivity must be predicated of the system as a whole (a global reduction of the level of protection) and not partially. Likewise, it adopts a broad conception of budget laws as a ‘vehicle for directing and guiding economic policy, which corresponds to the Government.’” (GARCÍA VALVERDE, María D., Comentario Sistemático a la Legislación Reguladora de las Pensiones, Granada, Spain, Editorial COMARES, 2004, p. 808). Likewise, with this contribution, besides the Pro Fundo Principle, other principles of constitutional rank are being protected, such as solidarity, social justice, and equity, since the purpose or need to apply this legal figure is precisely to protect pension regimes in light of the existing social and economic reality in the country. The foregoing, because in social security matters the fundamental pillar of sustaining the fund that backs the disbursements of those who benefit from the regime is solidarity, this so that all persons who contribute to the regime can benefit from that fundamental right. Thus, it is essential to establish a financial balance that guarantees the solidity of the fund, and for this, a series of limits must be imposed to guarantee its soundness. Likewise, consider that the State, in fulfilling its obligations, must take into account the needs of both those already pensioned and those who will be in the future, also seeking their protection. This being the case, in accordance with the factual and legal grounds set forth, it is evidenced that with what is established in the cited Law number 9796, this Office, within its competences, has acted in conformity, as no legal or constitutional norm is being infringed. In light of the foregoing, it is important to mention that numerals 9 and 11 of the Political Constitution establish that the Public Administration shall exercise exclusively and excludently, only the competences granted to it by law, such that it is impossible for it to deploy any action not supported by law. In addition to this, regarding the specific issue of accountability, the cited Article 11 of the Political Constitution indicates: “The Public Administration in a broad sense will be subject to a procedure of evaluation of results and accountability, with the consequent personal responsibility for officials in the fulfillment of their duties. The law shall indicate the means for this control of results and accountability to operate as a system covering all public institutions.” (The underline is not from the original) viii. Non-confiscation. Finally, it is pointed out in the present action that Article 3 of the challenged law speaks of creating a contribution; this contribution, being a tax burden on the pension amount, has a fiscal nature and by its structure has a confiscatory content on the patrimony of retired judicial servants and those who will retire. This Office wishes to express that with the decision of the Executive Branch to establish a lower amount exempt from the payment of the Special Solidarity and Redistributive Contribution for the different pension regimes affected by Law No. 9697, in particular for the Pension Regime of the Judicial Branch, it is not actually curtailing the rights of pensioned persons, nor has their standard of living been transgressed or limited; since the formulation and approval of the Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution responds to the promotion of the common welfare in the Democratic State of Law, as part of the constitutional mandate enshrined in Article 50 of the fundamental text, as it seeks to address extreme poverty and contribute to the eradication of inequality in the social benefits of pensions. (See the webpage: https://www.elpais.cr/2020/04/30/presidente-alvarado-defiende-fijacion-de-tope-a-pensiones-de-lujo/) Moreover, the implementation of a lower amount that is exempt from the payment of the Special Solidarity and Redistributive Contribution respects what is stipulated in Conventions 102 and 128 of the International Labour Organization (ILO), by protecting principles such as social justice and equity; given that the purpose of employing this legal figure is precisely the search for a balance between the income received from contributions and the expenses involved in paying retirement benefits, as well as the sustainability of the Regime. By virtue of the foregoing, while it is true that the Political Constitution establishes the necessary imposition of an accountability system, this is applicable to the Public Administration in a broad sense, in addition to the fact that said system must be developed by law, whereas, in a specific sense, public officials will be subject to responsibility regarding the fulfillment of their duties. In addition to the foregoing, it must be considered that the Administration, in strict adherence to the principle of legality, enshrined in Article 11 of both the Political Constitution and the General Law of Public Administration, is under the obligation to apply what is established in Law 9796, so it is not possible to give merit to the allegations raised by the plaintiff, since the Administration acts in strict adherence to the constitutional and legal norms that regulate the matter. Request Under the protection of the legal elements set forth, we respectfully request: a) To declare the unconstitutionality action filed by Messrs. Johnny Mejías Ávila, in his capacity as President of the Board of Directors, and Eric Enrique Loría Campos, in his capacity as General Manager with powers of general agent without limit of sum of Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), against articles 1, 2, subsection d); 3; 4, subsection b); 5, and 7; all of Law number 9796 of December 5, 2019, called “Law to redesign and redistribute the resources of the special solidarity contribution”, through which subsection a) of article 236 bis of the Organic Law of the Judicial Branch is reformed, without merit. b) To exempt this Office from the payment of any amount for personal and/or procedural costs, as well as damages and losses (…)”.

15.- By a brief submitted to the Chamber on June 4, 2020, Linda Casas Zamora, in her capacity as a retiree of the Judicial Branch, requests to be considered as an active coadjuvant in this process.

16.- By a brief submitted to the Chamber on June 5, 2020, Laura María León Orozco and Denis Alberto Villalta Canales, in their capacity as retirees of the Judicial Branch, request to be considered as active coadjuvants.

17.- By a brief submitted to the Chamber on June 7, 2020, Jorge Luis Morales García, in his capacity as General Secretary of the Sindicato de la Judicatura, requests to be considered as an active coadjuvant in the present process.

18.- By briefs submitted to the Chamber on June 7 and 8, 2020, José Gustavo Zelaya and Marco Antonio Cordero Costo, in their capacity as retirees of the Judicial Branch, request to be considered as active coadjuvants in the present process.

**19.-** By document submitted to the Chamber on June 8, 2020, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, requests to be considered an active coadjuvant in this proceeding.

**20.-** By document added to the record on June 8, 2020, Damaris Molina González, in her capacity as President of the Asociación de Jubilados y Pensionados del Poder Judicial, requests to be considered an active coadjuvant in this constitutional proceeding. This document was signed by Lic. Dennis Rubie Castro.

**21.-** By resolution at 16:28 hrs. on June 11, 2020, the Presidency of the Chamber ordered the following: *“(…) Prior to resolving the requests for coadjuvancy, the petitioner MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, is warned that she must provide the current legal status (personería jurídica) of the ASOCIACIÓN COSTARRICENSE DE JUEZAS. Furthermore, the petitioner DAMARIS MOLINA GONZÁLEZ, identity card 2-0269-0487, in her capacity as President of the ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, is warned to clarify the following: 1) whether the signing attorney DENNIS RUBIE CASTRO appears in his capacity as authenticator of the coadjuvancy petition or, in turn, as a coadjuvant in this action; if so, he must indicate what his standing (legitimación) is to appear as a coadjuvant. 2) whether the persons included in the list of Anexo 1 are members of the Asociación de Jubilados y Pensionados del Poder Judicial. The foregoing must be fulfilled within a period of THREE DAYS, counted from the day following notification of this resolution and under warning that their petitions will be denied processing in case of non-compliance (articles 80 and 83 of the Ley de la Jurisdicción Constitucional). Notify (…).”* **22.-** By document submitted to the record on June 12, 2020, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, provides the certification of current legal status of her represented entity.

**23.-** Through a brief submitted to the Chamber on June 16, 2020, Damaris Molina González, in her capacity as President of the Asociación de Pensionados y Jubilados del Poder Judicial, and Dennis Rubie Castro, in his capacity as authenticator of Molina González and petitioner of the coadjuvancy, respond to the warning issued by resolution at 16:28 hrs. on June 11, 2020. Molina González clarifies that Mr. Rubie Castro appears as authenticator, regarding her intervention as President of the association. She also points out, in relation to the question of whether the persons on the list in Anexo 1 are members of the Asociación de Jubilados y Pensionados del Poder Judicial, that many of them are *“(…) but there are other members of the Association who are not on this list, but who enjoy the representation of our association, even without appearing in the coadjuvancy writing (…).”* For his part, Rubie Castro confirms that his signature on the coadjuvancy writing is in a dual capacity, that is, as authenticator of Ms. Molina González, President of the Asociación de Pensionados y Jubilados del Poder Judicial, and in the capacity, in turn, of the petitioning attorney for the coadjuvancy of each and every one of the persons indicated in the list of Anexo 1. He maintains that all these persons are retirees of the Poder Judicial and, therefore, have a legitimate interest in the proceeding.

**24.-** By resolution at 09:18 hrs. on June 23, 2020, the Presidency of the Chamber ordered the following: *“(…) Having reviewed the documents filed in the Secretariat of this Chamber at 14:59 hours on May 15, 2020, by HÉCTOR LUIS RUÍZ SALAS, identity card 0502230397; at 11:20 hours on June 1, 2020, by LUIS ANTONIO CHANG PIZARRO, identity card 0601540414; at 11:23 hours on June 1, 2020, by SILENNE CASTRO VINDAS, identity card 0104770967; at 12:19 hours on June 2, 2020, by MARIA DEL PILAR VARGAS ACOSTA, identity card 0203170792; at 15:43 hours on June 2, 2020, by RODRIGO MONTENEGRO TREJOS, identity card 4-0075-0723, ANABELLE LEÓN FEOLI, identity card 1-0466-0883, ANA VIRGINIA CALZADA MIRANDA, identity card 1-0434-0791, LUIS FERNANDO SOLANO CARRERA, identity card 1-0455-0325, EVA MARÍA CAMACHO VARGAS, identity card 4-0113-0745, ROLANDO VEGA ROBERT, identity card 1-0503-0990, ADRIÁN VARGAS BENAVIDES, identity card 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, identity card 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, identity card 6-0106-0565, LUPITA CHAVES CERVANTES, identity card 1-0596-0893, MILENA CONEJO AGUILAR, identity card 1-0624-0446, FRANCISCO SEGURA MONTERO, identity card 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, identity card 1-0288-0592, RAFAEL SANABRIA ROJAS, identity card 3-0249-0099 and ALFREDO JONES LEÓN, identity card 1-0467-05; at 17:49 hours on June 7, 2020, by JORGE LUIS MORALES GARCÍA, identity card 2-399-222, in his capacity as Secretary General of the SINDICATO DE LA JUDICATURA, legal status 3-011-729381; at 15:26 hours on June 8, 2020, by MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, in her capacity as president of the ASOCIACIÓN COSTARRICENSE DE JUEZAS; at 11:50 hours on June 4, 2020, by LINDA MARIA CASAS ZAMORA, identity card 0900640769; at 11:37 hours on June 5, 2020, by LAURA MARÍA LEÓN OROZCO, identity card 106100476, and DENIS ALBERTO VILLALTA CANALES, identity card 601000361; at 09:49 hours on June 7, 2020, by JOSÉ GUSTAVO ZELAYA MUÑOZ, identity card 0203140196; and at 09:36 hours on June 8, 2020, by MARCO ANTONIO CORDERO COTO, identity card 0302250494. Prior to resolving the coadjuvancy requests formulated in this action, the aforementioned petitioners are warned that they must pay and attach the Colegio de Abogados stamp in the amount of two hundred seventy-five colones – for each of the signatories – corresponding to the authentication of the coadjuvancy filing document. In the case of signatories who are not attorneys and whose document lacks authentication, they must also provide the corresponding authentication. The foregoing, within the THIRD DAY counted from the day following notification of this resolution and under warning of denying processing to the action in case of non-compliance, in accordance with article 4 of Law No. 3245 of December 3, 1963, and 80 of the Ley de la Jurisdicción Constitucional. Notify (…).”* **25.-** By resolution at 09:41 hrs. on June 23, 2020, the President of the Chamber ordered the following: *“(…) Prior to resolving what is appropriate in the ACCIÓN DE INCONSTITUCIONALIDAD being processed under expediente number 20-007715-0007-CO, the Oficial Mayor Electoral is requested to remit to this Chamber a death certificate for OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, a document that must be remitted to this Chamber within a period of THREE DAYS counted from the receipt of this order, under warning of incurring liability for disobedience to authority if not done. Issue the requested official communication (…).”* **26.-** By documents submitted to the Chamber on June 23, 2020, Jorge Luis Morales García, in his capacity as Secretary General of the Sindicato de la Judicatura, and Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, indicate that they provide the stamp of the Colegio de Abogadas y Abogados de Costa Rica, according to the warning issued by resolution at 09:18 hrs. on June 23, 2020.

**27.-** By documents submitted to the Chamber on June 24, 2020, Luis Antonio Chang Pizarro and Silenne Castro Vindas indicate that they had provided the stamp of the Colegio de Abogadas y Abogados de Costa Rica since June 1 of that same year.

**28.-** Through documents submitted to the Chamber on June 24, 2020, Denis Villalta Corrales and María del Pilar Vargas Acosta indicate that they provide the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

**29.-** Through documents submitted to the Chamber on June 25, 2020, Linda Casas Zamora, José Gustavo Zelaya Muñoz, and Marco Antonio Cordero Coto indicate that they provide the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

**30.-** On June 25, 2020, the death certificate of Mr. Oscar Luis Fonseca Montoya is added to the record.

**31.-** By document submitted to the Chamber on June 26, 2020, Milena Conejo Aguilar (in her dual capacity as coadjuvant and authenticator of the signatures of the rest of the coadjuvants presented on June 2, 2020, namely: Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas, and Alfredo Jones León –the latter not an attorney–), states that she ratifies that the notation “are authentic” and her signature correspond to the authentication of the signatures of the coadjuvants. She clarifies that on folio 23 of the document presented, the fee payment corresponding to the stamp of the Colegio de Abogados de Costa Rica for the authentication of the coadjuvants’ signatures appears. She mentions that she provides a new fee payment for each of the sixteen coadjuvants.

**32.-** Through documents submitted to the Chamber on June 29, 2020, Laura María León Orozco and Dennis Villalta Canales indicate that they provide the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

**33.-** On June 29, 2020, Judge Garro Vargas files a request for recusal (inhibitoria) to hear the present constitutional proceeding. The foregoing, by virtue of the fact that her maternal aunt is a pensioner of the Poder Judicial retirement regime and is affected by the regulations under analysis.

**34.-** Through document submitted to the Chamber on June 30, 2020, Héctor Luis Ruiz Salas indicates that he provides the stamp of the Colegio de Abogadas y Abogados de Costa Rica indicated in the warning issued by resolution at 09:18 hrs. on June 23, 2020.

**35.-** Through resolution at 14:08 hrs. on June 30, 2020, the Presidency of the Chamber ordered the following: *“(…) Having reviewed the documents filed in the Secretariat of this Chamber at 14:59 hours on May 15, 2020, by HÉCTOR LUIS RUÍZ SALAS, identity card 0502230397; at 13:30 hours on May 18, 2020, by JOSÉ MARCELINO SILVA SILVA, identity card 0502160858; at 12:07 hours on May 25, 2020, by GUSTAVO ADOLFO DE LA TRINIDAD RAMÍREZ REDONDO, identity card 0106700103; at 11:20 hours on June 1, 2020, by LUIS ANTONIO CHANG PIZARRO, identity card 0601540414; at 11:23 hours on June 1, 2020, by SILENNE CASTRO VINDAS, identity card 0104770967; at 12:19 hours on June 2, 2020, by MARIA DEL PILAR VARGAS ACOSTA, identity card 0203170792; at 15:43 hours on June 2, 2020, by RODRIGO MONTENEGRO TREJOS, identity card 4-0075-0723, ANABELLE LEÓN FEOLI, identity card 1-0466-0883, ANA VIRGINIA CALZADA MIRANDA, identity card 1-0434-0791, LUIS FERNANDO SOLANO CARRERA, identity card 1-0455-0325, EVA MARÍA CAMACHO VARGAS, identity card 4-0113-0745, ROLANDO VEGA ROBERT, identity card 1-0503-0990, ADRIÁN VARGAS BENAVIDES, identity card 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, identity card 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, identity card 6-0106-0565, LUPITA CHAVES CERVANTES, identity card 1-0596-0893, MILENA CONEJO AGUILAR identity card 1-0624-0446, FRANCISCO SEGURA MONTERO, identity card 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, identity card 1-0288-0592, OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, RAFAEL SANABRIA ROJAS, identity card 3-0249-0099 and ALFREDO JONES LEÓN, identity card 1-0467-055; at 17:49 hours on June 7, 2020, by JORGE LUIS MORALES GARCÍA, identity card 2-399-222, in his capacity as Secretary General of the SINDICATO DE LA JUDICATURA, legal status 3-011-729381; at 15:26 hours on June 8, 2020, by MAGDA DÍAZ BOLAÑOS, identity card 1-0716-0898, in her capacity as president of the ASOCIACIÓN COSTARRICENSE DE JUEZAS, legal status No. 3-002-130811; at 11:50 hours on June 4, 2020, by LINDA MARIA CASAS ZAMORA, identity card 0900640769; at 12:10 hours on June 4, 2020, by DAMARIS MOLINA GONZÁLEZ, identity card 2-0269-0487, in her capacity as President of the ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, legal status 3-002-071245; at 11:37 hours on June 5, 2020, by LAURA MARÍA LEÓN OROZCO, identity card 106100476, and DENIS ALBERTO VILLALTA CANALES, identity card 601000361; at 09:49 hours on June 7, 2020, by JOSÉ GUSTAVO ZELAYA MUÑOZ, identity card 0203140196; and at 09:36 hours on June 8, 2020, by MARCO ANTONIO CORDERO COTO, identity card 0302250494; who request to be considered active coadjuvants in this action. It is resolved: Article 83 of the Ley de Jurisdicción Constitucional indicates that within fifteen days following the first publication of the notice referred to in the second paragraph of article 81, the parties appearing in pending matters as of the date of the filing of the action, or those with a legitimate interest, may appear within it, in order to coadjuvate in the allegations that could justify its propriety or impropriety, or to broaden, where appropriate, the grounds of unconstitutionality in relation to the matter that interests them. In the specific case, all the aforementioned petitioners appeared between May 15 and June 8, 2020, and requested to be considered active coadjuvants for considering that they hold a legitimate interest in this matter. Consequently, and given that the first publication of the notice in the Boletín Judicial was on May 18, 2020, the appropriate course is to consider them active coadjuvants within this matter. This, with the exception of OSCAR LUIS FONSECA MONTOYA, identity card 4-0080-0442, given that, according to certification from the Registro Civil provided to the record, he died on June 12, 2020, therefore, in his case, the procedural action is deemed terminated. It must be clarified that regarding the coadjuvancy petition of Damaris Molina González, it is admitted in her capacity as president and judicial representative of the Asociación de Pensionados y Jubilados del Poder Judicial and, consequently, in representation of the members of said association, but not the coadjuvancy of Dennis Rubie Castro, authenticating attorney and who stated he appeared before this Chamber in the capacity of “petitioning attorney for the coadjuvancy of each and every one of the persons indicated with their respective names and identities in the list of Anexo I” (document received at 14:09 hours on June 16, 2020), since he did not provide a judicial power of attorney that legitimizes him to coadjuvate on behalf of the listed persons. The interested parties are warned that –regarding the effects of coadjuvancy–, as the coadjuvant is not a main party to the proceeding, they will not be directly harmed or benefited by the judgment, that is, the efficacy of the judgment does not reach the coadjuvant directly and immediately, nor does res judicata affect them, nor do the immediate effects of execution of the judgment reach them, since through coadjuvancy the jurisdictional authority cannot be obligated to issue a resolution in their favor, for not having been a main party in the proceeding. What can affect them, but not because of their condition as coadjuvant but like anyone else, is the erga omnes effect of the ruling. The judgment in constitutional matters does not particularly benefit anyone, not even the plaintiff; it is in the prior proceeding where this can be recognized. The hearings granted to the Procurador General de la República, the Minister of Hacienda, the Minister of Planificación y Política Económica, and the President of the Corte Suprema de Justicia, in the resolution at 11:37 hours on May 12, 2020, are deemed answered. Regarding the request for a precautionary measure of suspension: the requesting coadjuvants must abide by what was resolved by this Chamber in the resolution at 11:37 hours on May 12, 2020, regarding the effects of this action: “(…) in cases of direct action (as occurs in the present action), the suspensive effect of the filing does not operate (see votes No. 537-91, 2019-11633, as well as resolutions issued in expedientes numbers 2019-11022, 19-006416 and 19-015543 of the Tribunal Constitucional)”. The record being ready, this acción de inconstitucionalidad is assigned to Judge Jorge Araya García, to whom the substantive study of the same corresponds by turn (…).”* **36.-** By resolution at 14:47 hrs. on September 23, 2020, the President of the Chamber ordered that the request for recusal filed by Judge Garro Vargas be accepted.

**37.-** On September 25, 2020, Alternate Judge Ronald Salazar Murillo files a request for recusal to hear the present constitutional proceeding. The foregoing, for being a retiree of the Poder Judicial.

**38.-** By resolution at 08:49 hrs. on September 30, 2020, the President of the Chamber ordered that the request for recusal filed by Judge Salazar Murillo be accepted.

**39.-** On October 1, 2020, drawing No. 8371 was conducted in the Office of the Presidency of the Court and Alternate Judge Hubert Fernández Arguello was selected, substituting Judge Garro Vargas, to hear the present matter.

**40.-** By document submitted to the Chamber on October 18, 2020, José H. González Fernández, pensioner of the Magisterio Nacional, requests to be considered an active coadjuvant in this proceeding. He requests that articles 70 and 71 of the Ley de Pensiones y Jubilaciones del Magisterio Nacional and Law No. 9796 be declared unconstitutional.

**41.-** On October 20, 2020, Judge Fernando Cruz Castro files a request for recusal to hear the present constitutional proceeding. The foregoing, for having rendered a report in this matter, in his capacity as President of the Corte Suprema de Justicia.

**42.-** By resolution at 12:33 hrs. on October 22, 2020, the President of the Chamber ordered that the request for recusal filed by Judge Cruz Castro be accepted and ordered him recused from hearing this matter.

**43.-** By document added to the record on October 26, 2020, drawing No. 8454 conducted in the Office of the Presidency of the Court is recorded, through which Alternate Judge Marta Esquivel Rodríguez was selected, substituting Judge Cruz Castro, to hear the present matter.

**44.-** By document submitted to the Chamber on October 30, 2020, Danilo Eduardo Ugalde Vargas, who claims to appear in the capacity of special judicial attorney-in-fact (apoderado especial judicial) for Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, and others (who requested in June 2020 to be considered active coadjuvants in this proceeding), attaches a series of evidence for better resolution.

**45.-** By document added to the record on February 22, 2021, a copy (unsigned) of the filing document for the acción de inconstitucionalidad presented on February 18 of that same year by Víctor Rodríguez Rescia on behalf of various interested parties and against the provisions of Law No. 9796 and Law No. 9635, which, in turn, is processed under expediente No. 21-003071-000-CO, is attached.

**46.-** By document submitted to the Chamber on June 7, 2021, Jorge Luis Morales García, in his capacity as Secretary General of the Sindicato de la Judicatura, requests that the oral hearing be scheduled as soon as possible, in accordance with the provisions of article 10 of the Ley de la Jurisdicción Constitucional. He considers that said hearing is mandatory and not optional.

**47.-** By document submitted to the Chamber on October 1, 2021, Eloy José Araya Paz presented a request for prompt dispatch.

**48.-** Through a brief submitted to the Chamber on March 7, 2022, Antonio Ortega Vindas (who filed an amparo remedy related to the regulations challenged in this proceeding), presents a request for prompt dispatch.

**49.-** By documents submitted to the Chamber on June 17 and 23, 2022, Erick Castro Zamora and Jessica Espinoza Cerdas (who filed amparo remedy No.

**20-010662-0007-CO** related to the regulations challenged herein), they file a request for expedited processing (gestión de pronto despacho).

**50.-** Through a brief submitted to the Chamber on November 3, 2022, José H. González Fernández, a retiree of the National Teachers Union (Magisterio Nacional), provides additional observations regarding this proceeding.

**51.-** By a writing dated February 20, 2023 (added to the record on February 22, 2023), Jorge Steve Rodríguez Fernández, in his capacity as General Secretary of the Judiciary Union (Sindicato de la Judicatura), requests that the oral hearing (comparecencia oral) referred to in section 10 of the Ley de la Jurisdicción Constitucional be scheduled. He considers that said hearing is mandatory and not optional.

**52.-** By a writing added to the record on July 12, 2023, draw No. 11431 conducted in the Office of the Presidency of the Court is recorded, through which Alternate Judge Ana Cristina Fernández Acuña was selected to replace the previously appointed Judge Esquivel Rodríguez (since the latter, by then, was no longer serving as a judge because her constitutional term had concluded).

**53.-** By a writing added to the record on July 12, 2023, draw No. 11436 conducted in the Office of the Presidency of the Court is recorded, through which Alternate Judge Jorge Isaac Solano Aguilar was selected to replace Judge Fernández Acuña (since the latter, by then, remained appointed to the Chamber). Regarding this appointment, what is stated in recital (resultando) No. 62 of this judgment must also be noted.

**54.-** Through interlocutory resolution No. 2023-17098 at 1:00 p.m. on July 12, 2023, the Chamber rejected the request made by the General Secretaries of the Judiciary Union (Sindicato de la Judicatura) on June 7, 2021, and February 20, 2023, to schedule an oral hearing or closing argument hearing (comparecencia oral o audiencia de conclusiones) regarding what was raised in this unconstitutionality action (acción de inconstitucionalidad). Likewise, it was recorded that Judges Salazar Alvarado, Araya García, Fernández Arguello, and Fernández Acuña are members of COOPEJUDICIAL, and it was clarified that this situation in no way affects the consideration of the action.

**55.-** By a writing dated August 7, 2023 (added to the record on August 8, 2023), Jorge Steve Fernández Rodríguez, in his capacity as General Secretary of the Judiciary Union (Sindicato de la Judicatura), argues that they must be considered as plaintiffs (accionantes), requests the Chamber to schedule an oral hearing or closing argument hearing (comparecencia oral o audiencia de conclusiones), and files a request for expedited processing (gestión de pronto despacho).

**56.-** Through interlocutory resolution No. 2023-23500 at 9:15 a.m. on September 20, 2023, this Court ruled on the request of August 7, 2023, made by Jorge Steve Fernández Rodríguez, in his capacity as General Secretary of the Judiciary Union (Sindicato de la Judicatura), and resolved the following: "(...) I.- Preliminary matter. In considering I of resolution no. 2023017098 at 1:00 p.m. on July 12, 2023, judges Salazar Alvarado, Araya García, Fernández Argüello, and Garita Navarro, and judge Fernández Acuña, state that they are members of COOPEJUDICIAL-. In this regard, the Chamber records that such condition in no way affects the consideration of this action. Related to the foregoing, Judge Rueda Leal states that his wife is a member of this cooperative; in this regard, it is similarly considered that such condition in no way affects the consideration of this action. II.- Regarding the joinder (coadyuvancia) request, the procedural actions, and the petitioner's request to be considered a plaintiff (accionante) (...) Thus, it is improper to claim that, because a 'Broadening of Grounds' was raised in the joinder (coadyuvancia), they must be considered an active party, claimant, or plaintiff (accionante), since, as was duly resolved, the Union's intervention was as an active coadyuvant (coadyuvante activo) in this action, and, as repeatedly indicated, such condition of coadyuvant is insufficient for raising other types of requests, such as, precisely, requesting that the Union be considered a plaintiff (accionante) or claimant party in this proceeding. III.- Regarding the request to hold a hearing or oral hearing (comparecencia oral). Determining that, in accordance with the provisions of article 83 of the Ley de la Jurisdicción Constitucional, the actions that a coadyuvant person can perform within a proceeding are limited to presenting arguments for or against what the plaintiff (accionante) raised -even if they are expansions of arguments-, it is concluded that they also lack the possibility to make a formal or express request for the holding of an oral hearing, hearing, or closing argument hearing (comparecencia oral, vista o audiencia de conclusiones). In any case, it should be noted that the holding of an oral hearing or closing argument hearing (comparecencia oral o audiencia de conclusiones), by its very nature, is a procedural aspect that corresponds to the Plenary of the Chamber to determine at the procedural stage when it is deemed necessary, appropriate, or timely by the Court, taking into account the processing and discussion relevant to the constitutionality issue raised, and in accordance with the provisions of article 9 of the Ley de la Jurisdicción Constitucional and its application in proceedings of this nature -see, among many others, judgments numbers 4528-99 and 2021-11957-. IV.- Regarding the request for expedited processing (pronto despacho). Finally, regarding the request for expedited processing (pronto despacho), it is important to note that the processing given to date to this action is due to objective reasons, such as the complexity of the proceeding -a characteristic inherent to an unconstitutionality action (acción de inconstitucionalidad)- and also given the number of requests filed, as well as the significance of the Chamber's eventual ruling, which requires a thorough analysis by this jurisdictional body of the elements presented in the record. To the above, it must be added that the caseload of the constitutional jurisdiction for this year already exceeds 21 thousand new case files, which suggests that by the end of the year the highest figure in the Court's history will be reached. This situation generates a greater workload that directly impacts the Chamber's resolution timelines, as the petitioner believes has happened in this specific case. V.- Ultimately, in accordance with what was stated in the preceding considerations, the appropriate course is to declare that the requests filed are without merit. Therefore, the requests filed are without merit (...)".

**57.-** Through a writ submitted to the Chamber on February 26, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended due to this unconstitutionality action), files a request for expedited processing (gestión de pronto despacho).

**58.-** Through a writ submitted to the Chamber on April 9, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended due to this unconstitutionality action), reiterates his request for expedited processing (gestión de pronto despacho).

**59.-** Through a brief submitted to the Chamber on April 11, 2024, Silvia Elena Arce Meneses, in her capacity as General Secretary of the Judiciary Union (Sindicato de la Judicatura), files a request for expedited processing (gestión de pronto despacho).

**60.-** Through a writ submitted to the Chamber on April 11, 2024, José H. González Fernández, a retiree of the National Teachers Union (Magisterio Nacional), provides other observations regarding this proceeding.

**61.-** Through a writ submitted to the Chamber on April 23, 2024, Miguel Ángel García Martínez (who filed other proceedings suspended due to this unconstitutionality action), reiterates his request for expedited processing (gestión de pronto despacho).

**62.-** Through a resolution of the Presidency of the Chamber, at seven hours and fifty minutes on May 7, 2024, it is confirmed that Judge Fernández Acuña is the appointee to substitute Judge Cruz Castro in this action, by virtue of the recusal (inhibitoria) raised by the latter, as indicated in recitals (resultandos) 41, 42, 43, and 52 of this judgment. In this resolution, the following was expressly indicated and explained regarding this appointment: "(...) IV.- As stated in the judicial record, Judge Fernández Acuña was elected to substitute Judge Cruz Castro (supra recital 4). The fact that, to resolve an interlocutory matter (supra recital 7), Judge Solano Aguilar was appointed (supra considering 6) to substitute Judge Cruz Castro because Judge Fernández Acuña was a member of the Court -substituting Judge Rueda Leal- (supra recital 5), such appointment does not have the legal consequence of displacing Judge Fernández Acuña, since the appointment of Judge Solano Aguilar was for an ad-hoc case. Subsequently, and as is legally appropriate, Judge Fernández Acuña was responsible for resolving another interlocutory matter in this case file (supra recital 8). Ergo, as there is no grounds that displaces Judge Ana Cristina Fernández Acuña, it is appropriate that she hear and resolve what is legally appropriate in this action (...)".

**63.-** Through a brief added to the case file on May 20, 2024, Judge Hess Herrera files a formal recusal (inhibitoria) to hear this action.

**64.-** Through a resolution of the Presidency of this Chamber, at ten hours and forty-six minutes on May 20, 2024, the recusal (inhibitoria) filed by Judge Hess Herrera is accepted.

**65.-** Through a brief added to the case file on May 21, 2024, draw number 12342 conducted by the Presidency of the Supreme Court of Justice is certified, by which Alternate Judge Lara Gamboa is appointed to substitute Judge Hess Herrera.

**66.-** Through writs added to the case file on May 31 and June 10, both in 2024, Mr. Humberto González Fernández requests the resolution of this action.

**67.-** Through a writ added to the case file on June 21, 2024, Mr. Humberto González Fernández refers to the content of various aspects related to the consideration of this action.

**68.-** Through writs submitted to the Chamber on August 22, 23, and 30, as well as on September 1st, 4th, and 9th, all in 2024, José Humberto González Fernández provides an additional series of observations related to this proceeding.

**69.-** Through a brief added to the case file on September 10, 2024, alternate judge Lara Gamboa files a recusal (inhibitoria) to hear this action.

**70.-** Through a resolution of the Presidency of this Chamber, at seven hours and thirty-three minutes on September 11, 2024, the recusal (inhibitoria) filed by alternate judge Lara Gamboa is accepted.

**71.-** Through a brief added to the case file on September 16, 2024, draw number 12,771 conducted by the Presidency of the Supreme Court of Justice is certified, by which alternate judge Pacheco Salazar is appointed to substitute alternate judge Lara Gamboa.

**72.-** In the substantiation of the proceeding, the prescriptions of law have been observed.

Authored by Judge **Araya García**; and, **Considering:** **I.- Preliminary matter.** Judges Rueda Leal, Salazar Alvarado, Araya García, and Fernández Argüello, as well as Judge Fernández Acuña, state that they are members of COOPEJUDICIAL R.L. In this regard, the Chamber records –as indicated in interlocutory resolutions No. 2023-17098, at 1:00 p.m. on July 12, 2023, and No. 2023-23500, at 9:15 a.m. on September 20, 2023– that said condition in no way affects the consideration of this action.

**II.- Regarding the formal admissibility requirements of the unconstitutionality action (acción de inconstitucionalidad).** The unconstitutionality action is a process with specific technical requirements that must be met so that the Chamber can validly consider the merits of the challenge. Article 75 of the Ley de la Jurisdicción Constitucional stipulates the admissibility requirements of the unconstitutionality action; among these, the existence of a pending underlying or prior matter to be resolved is required, either in judicial proceedings, or in the procedure to exhaust the administrative route, in which the unconstitutionality has been invoked as a reasonable means to protect the right or interest considered infringed. For its part, the second and third paragraphs of the same norm exceptionally regulate the requirements under which a prior matter is not required, that is, when by the nature of the matter there is no individual and direct injury, or when it concerns the protection of diffuse or collective interests, or when it is filed directly by the Comptroller General of the Republic, the Attorney General of the Republic, the Prosecutor General of the Republic, and the Ombudsman (Defensor de los Habitantes). Regarding the requirement of a pending matter to be resolved, the Chamber, through judgment number 1995-4190, indicated that the action is "a proceeding of an incidental nature, and not a direct or popular action, which means that the existence of a pending matter to be resolved -whether before the courts of justice or in the procedure to exhaust the administrative route- is required to access the constitutional route, but in such a way that the action constitutes a reasonable means to protect the right considered harmed in the main matter, so that what is resolved by the Constitutional Court has a positive or negative impact on said pending proceeding to be resolved, insofar as it rules on the constitutionality of the norms that must be applied in said matter; and it is only by exception that the legislation allows direct access to this route - requirements of the second and third paragraphs of article 75 of the Ley de la Jurisdicción Constitucional". For this reason, the requirement of a pending prior matter does not constitute a mere formal requirement, as it is not sufficient that an underlying matter exists, nor that the unconstitutionality is invoked, since it is essential that the action constitutes a reasonable means to protect the right or interest considered violated, which means that the challenged norms must be applicable in the underlying matter –see, in a similar sense, Judgments Nos. 1990-1668, 1993-408, 1994-798, 1994-3615, 1995-409, 1995-851, 1995-4190, and 1996-791-. Furthermore, it is opportune to indicate that there are other technical requirements that must be met, such as, for example, the explicit determination of the challenged norms duly reasoned, with specific reference to the constitutional mandates and principles considered infringed, the authentication through legal representation (patrocinio letrado) of the writ filing the action, the accreditation of standing conditions -powers of attorney and certifications-, as well as the literal certification of the challenging brief, which, should they not be provided by the plaintiffs (accionantes), may be requested by the Presidency of the Chamber for their fulfillment.

**III.- STANDING AND ADMISSIBILITY OF THIS UNCONSTITUTIONALITY ACTION (ACCIÓN DE INCONSTITUCIONALIDAD).** In accordance with what was stated in the preceding considering, one of the exceptions for filing an unconstitutionality action without the existence of a prior matter where the intended unconstitutionality has been alleged and which serves as a basis for filing the action, is precisely the defense of collective interests, understood as those that concern a specific collectivity, and, therefore, also identified as corporate or guild interests.

Regarding the collective interests whose defense provides standing for filing an unconstitutionality action, in Judgment No. 2006-13323 at 5:26 p.m. on September 6, 2006, this Court stated:

"This Court considers that the action is admissible under the terms provided in the first paragraph (sic) of article 75 of the Ley de la Jurisdicción Constitucional, since the plaintiffs (accionantes) allege the defense of corporate interests, relating to the interests of the members of the associations they represent, these being the Asociación Cámara Nacional de Transportes, the Asociación Cámara Nacional de Transportistas de Servicios Especiales, and the Asociación Nacional de Transportistas de Turismo. Indeed, as this Court has previously recognized (in judgments number 6433-98, 7615-98, 0467-99, 1313-99, 1830-99, 2289-99, 2745-99, 6644-99, 7975-99, 0877-2000, 2856-2000, 5565-2000, 6973-2000, 7160-2000, and 2001-9677) corporate interests are those characterized '[...] by the representation and defense of a core of interests belonging to the members of the specific collectivity or common activity, and, insofar as it represents and defends them, the Chamber acts on behalf of its associates, the collectivity of merchants. Thus, we are facing an interest of that Chamber and, at the same time, of each of its members, in a non-individualized but individualizable manner, which constitutes a corporate interest or one that concerns that legally organized collectivity, which is why this action is admissible under the terms of the second paragraph of article 75 of the Ley de la Jurisdicción Constitucional.-" (Judgment number 1631-91, at fifteen hours and fifteen minutes on August twenty-first, nineteen ninety-one).

Thus, in these cases, the existence of a pending matter (in the administrative or jurisdictional route) is not necessary, as required by the first paragraph of the cited article 75 to prove the plaintiff's standing, since by the very essence of the matter, it involves the defense of corporate interests. The Chamber considers that it is not legitimate to disregard this type of interest, since that would imply disregarding an important function of corporate entities, which have been created according to the guidelines of the law, and in the case of Chambers, professional associations (colegios profesionales), associations, or unions, it would imply denaturing their mediating function regarding the defense of the interests of their members, a function that has been recognized as essential for these entities by this Court's own jurisprudence (...)".

For its part, in Judgment No. 2020-20839 at 9:20 a.m.

of October 28, 2020, the Chamber indicated:

“Regarding collective interests, which are mentioned briefly in the filing, it is pertinent to note that the Chamber has specified that through the expression ‘interests that concern the community as a whole,’ the legislator sought to refer to the standing held by a corporate entity when it acts through its representatives in defense of the rights and interests of the people who make up its associative base, provided that it involves challenging norms or provisions that affect that core of rights or interests that constitutes the entity’s reason for being and the unifying factor of the group. Based on ruling 2006-9170 of sixteen thirty-six hours on June twenty-eighth, two thousand six, this Court returned to a previous criterion, according to which corporate entities are authorized to directly request the declaration of unconstitutionality of a norm when it directly affects the sphere of action of the entity and its members, without it being relevant that the norm is capable of directly affecting the rights of the members (...)”.

Thus, when invoking the defense of collective interests, it must directly involve situations that affect the sphere of rights of those who make up the group, collective, guild, or corporation, precisely because they are integral parts of the same, or the rights that such a collective or group may hold by itself as a corporate-based entity. That is, it is not about the possibility of invoking, through this route, the unconstitutionality of any norm or general act, but only of those that affect that sphere of rights.

In the case under study, this action is brought by the President of the Board of Directors and the General Manager, both of the Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), which is a corporate organization, invoking the defense of the rights of the associated persons (active and retired) of that group, by virtue of the fact that, in their opinion, the regulations in question (Articles 1; 2, subsection d); 3; 4, subsection b); 5; and 7; all of Law No. 9796 of December 5, 2019, called “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria,” and the provisions of Article 236 bis, subsection a), of the Ley Orgánica del Poder Judicial No. 8), concern and directly affect them. Given the foregoing, this Chamber considers that the claimants have sufficient standing to bring this action (see the provisions of the Chamber in vote No. 2021-11957, at 5:00 p.m. on May 25, 2021; an occasion on which, upon hearing a similar matter, an unconstitutionality action also filed by COOPEJUDICIAL R.L. was admitted).

**IV.- On the joinders.** Article 83 of the Ley de la Jurisdicción Constitucional establishes that within the fifteen days following the first publication of the notice referred to in the second paragraph of numeral 81, parties with pending matters at the date of filing the action, or those who have a legitimate interest (interés legítimo) in the determination of the object in dispute, may appear to join either of the two positions subject to discussion; in the case of unconstitutionality actions, the joiner (coadyuvante) basically comes to defend the annulment claim of the plaintiff or to support the validity of the challenged act. In this case, by resolution of the Presidency of this Chamber, issued at 2:08 p.m. on June 30, 2020, matters pertaining to the active joinder requests filed within the period indicated in the aforementioned numeral 83 of the Ley de la Jurisdicción Constitucional were resolved. On that occasion, the following were recognized as active joiners (coadyuvantes activos): Héctor Luis Ruiz Salaz, José Marcelino Silva Silva, Gustavo Adolfo de la Trinidad Ramírez Redondo, Luis Antonio Chang Pizarro, Silenne Castro Vindas, María del Pilar Vargas Acosta, Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magda Lorena Pereira Villalobos, Alejandro López Mc Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Álvaro Fernández Silva, Rafael Sanabria Rojas, Alfredo Jones León, Jorge Luis Morales García, in his capacity as General Secretary of the Sindicato de la Judicatura, Magda Díaz Bolaños, in her capacity as President of the Asociación Costarricense de Juezas, Linda María Casas Zamora, Damaris Molina González, in her capacity as President of the Asociación de Jubilados y Pensionados del Poder Judicial, Laura María León Orozco, Denis Alberto Villalta Canales, José Gustavo Zelaya Muñoz, and Marco Antonio Cordero Coto, all having demonstrated a legitimate interest and appeared within the corresponding period.

Likewise, this resolution clarified that the joinder action filed by Mr. Oscar Luis Fonseca Montoya was not admissible, given that he died on June 12, 2020. Regarding the action filed by Damaris Molina González, it was indicated that it was admissible in her capacity as President and judicial representative of the Asociación de Pensionados y Jubilados del Poder Judicial and, therefore, on behalf of the members of said association. Also, said resolution noted that the action filed by Dennis Rubie Castro was not admissible, “(…) a certifying lawyer who stated that he appeared before this Chamber in the capacity of ‘managing lawyer for the joinder of each and every one of the persons indicated with their respective names and identities in the list of Anexo I’ (filing received at 2:09 p.m. on June 16, 2020), since he did not provide a judicial power of attorney that legitimizes him to join on behalf of the listed persons (…)”.

It should be noted that, on October 18, 2020, Mr. José H. González Fernández, a retiree of the Magisterio Nacional, requested to be recognized as an active joiner in this proceeding. However, as said action was filed extemporaneously, exceeding the period clearly established in ordinal 83 of the Ley de la Jurisdicción Constitucional, it becomes inadmissible and must be rejected.

**V.- OBJECT OF THE ACTION.** The claimants allege the unconstitutionality of the provisions in Articles 1; 2, subsection d); 3; 4, subsection b); 5; and 7; all of Law No. 9796 of December 5, 2019, called “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria,” and the provisions of Article 236 bis, subsection a), of the Ley Orgánica del Poder Judicial. These norms expressly state the following:

From Law No. 9796:

“ARTÍCULO 1- Purpose of the law. The purpose of this law is to contribute to the country's public finances by applying a redesign of the maximum pension limits and the pension exempt from the special solidarity contribution (contribución especial solidaria) established on the special pension regimes contained in Articles 3 of Law No. 9383, Ley Marco de Contribución Especial de los Regímenes de Pensiones, of July 29, 2016; 236 bis of Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937; and in Article 71 of Law No. 2248, Ley de Pensiones y Jubilaciones del Magisterio Nacional, of September 5, 1958, which contemplate the regimes of the Poder Judicial and the Magisterio Nacional, respectively.” “ARTÍCULO 2- Scope of application. This law shall apply to the pension regimes established in the following laws: (…) d) Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937. This law shall not be applicable to persons covered by the Invalidez, Vejez y Muerte regime administered by the Caja Costarricense de Seguro Social (CCSS).” “ARTÍCULO 3- Purposes. This law shall have the following purposes: a) To grant continuity and applicability to the solidarity contribution as a contribution to achieve the sustainability of pensions. b) To contribute to the elimination of inequalities in the social benefits of pensions and retirements, as well as in tax burdens. c) To give sustainability to the pension systems through the new contributions.” “ARTÍCULO 4- Universal maximum pension exempt from the special solidarity contribution. All those retirements, unit pensions, or multi-pensions derived from the contributory and non-contributory regimes included in Article 2 of this law, except for the complementary ones regulated in Law No. 7983, Ley de Protección al Trabajador, of February 16, 2000, and any other complementary one that exists in the Public Administration, granted to the same person for different legal causes, that exceed the amounts stated below, according to the public salary regime to which they belong, shall be subject to the special solidarity contribution created through the laws indicated in Articles 1 and 2 of this law. The amounts exempt from the special solidarity contribution are the following: (…) b) Up to six (6) base salaries of the lowest position paid in the Poder Judicial for the case of pensions and retirements contemplated in Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937.” “ARTÍCULO 5- Principle of progressive contribution. The deduction of the mandatory and solidarity contribution shall be applied in compliance with the progressive contribution scale established in each of the laws indicated in Article 2 of this law. For the case of deductions that must be applied to multi-pensions, only those paid within the same pension regime may be considered, for the purposes of the special solidarity contribution, and the sums of pension amounts between different regimes may not be applied. In no case shall the sum of the solidarity contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions that the beneficiary is legally entitled to. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension or pensions, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” “ARTÍCULO 7- Reform of subsection a) of Article 236 bis of Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937 Subsection a) of Article 236 bis of Law No. 8, Ley Orgánica del Poder Judicial, of November 29, 1937, is reformed. The text is as follows: Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, in accordance with the following table: a) On the excess over the amount of six (6) base salaries of the lowest position paid in the Poder Judicial and up to twenty-five percent (25%) of said limit, they shall contribute thirty-five percent (35%) of such excess.” For its part, Article 236 bis, subsection a), of the Ley Orgánica del Poder Judicial, states:

“Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees. In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, in accordance with the following table: a) On the excess over the amount of six (6) base salaries of the lowest position paid in the Poder Judicial and up to twenty-five percent (25%) of said limit, they shall contribute thirty-five percent (35%) of such excess.” In essence, the claimants estimate that the content of such norms caused the contribution percentages to be increased, such that they are forced to pay up to 55%, thus arbitrarily leaving the retirees of the Poder Judicial deprived of sufficient economic resources to meet their needs, mainly due to the condition of older adults that most of them hold.

For the foregoing, they allege that such norms contravene the rights to retirement and social security, the principle of non-confiscation (no confiscatoriedad), the principle of no double taxation (no doble imposición) in tax matters, the principle of non-retroactivity to the detriment, the principle of legal certainty (seguridad jurídica), the principle of equality, the principles of reasonableness and proportionality, and the principle of solidarity. Likewise, they accuse that, for the establishment of the contribution percentages to the regime, no technical studies were available.

**VI.- METHODOLOGY FOR THE ANALYSIS OF THIS UNCONSTITUTIONALITY ACTION.** For the purposes of facilitating the study of this action, we will first proceed to carry out a general analysis of the reasons that gave rise to Law No. 9796, as well as the right to retirement and the figure of the special solidarity contribution, in order to later focus the study on the contributions of up to 55% that judicial retirees are currently obliged to pay and what the Chamber has said regarding that maximum limit. All this, as a means to then specifically examine the grievances that, on this particular point, the claimants presented.

**VII.- ON THE REASONS THAT GAVE RISE TO LAW No. 9796 AND THE TEXT OF INTEREST FINALLY APPROVED.** To begin the study of this constitutionality process, it is fitting to first know, broadly, the origins or reasons that led to the creation of the law challenged by the claimants.

Thus, it should be noted that on April 24, 2018, Law No. 9544, called Reforma a la Ley Orgánica del Poder Judicial (published in La Gaceta No. 89 of May 22, 2018), was issued. Through this last regulatory body, what was provided in Title IX of the cited Ley Orgánica del Poder Judicial was reformed, namely, specifically, what is stated in numerals 224 to 233 (Chapter I referring to benefits), ordinal 234 (Chapter II regarding the transfer of contributions), Articles 235 to 238 (Chapter III called The Fund), and numerals 239 to 242 (Chapter IV regarding administration); likewise, several norms were repealed, and some transitional provisions were inserted. The background and reasons that gave rise to this particular law were extensively explained by this Constitutional Chamber in Considerando VII of Judgment No. 2021-11957 at 5:00 p.m. on May 25, 2021, through which, precisely, its constitutionality was analyzed, as will be stated and explained later.

Now, of particular interest and, for the purposes of this constitutionality process, it is worth noting what was recorded, on that occasion, in ordinals 236 and 236 bis of the cited Law No. 9544 (corresponding to Chapter III called The Fund). The first of these articles provided that the Fondo de Jubilaciones y Pensiones del Poder Judicial would have a series of income, namely: 1) A worker contribution of thirteen percent (13%) of the salaries earned by judicial servants, as well as of the retirements and pensions charged to the Fund, a percentage that will be withheld in the corresponding periodic payment. 2) An employer contribution from the Poder Judicial of fourteen point thirty-six percent (14.36%) on the salaries and wages of its servants. 3) A State contribution that will be a percentage on salaries and wages equal to that established for the Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense de Seguro Social (CCSS); and 4) The returns and other benefits that the Fund produces or may come to generate or obtain.

Furthermore, it was clarified that, in no case, the sum of the mandatory contribution and the special, solidarity, and redistributive contribution and, in general, all deductions applied by law to all pensioners and retirees of the Fund, could represent more than 55% of the total gross amount of the pension to which the beneficiary is legally entitled. It was also stated that, for cases in which this sum exceeded that 55% of the total gross amount of the pension, the special contribution would be readjusted so that the sum equaled 55% of the total gross amount of the pension. Finally, that section clarified that the resources obtained from this established mandatory contribution would enter the Judicial Branch Retirement Fund (Fondo de Jubilaciones del Poder Judicial).

For its part, through Article 236 bis, the matter concerning the special, solidarity, and redistributive contribution to which the pensioners of this institution would be obliged was established. It was provided, therefore, that, in addition to the common contributions established in the previous section, pensioners whose benefits exceed the following amounts must contribute in a special, solidarity, and redistributive manner: a) On the excess above the cap established in Article 225 (which, in turn, provided that no pension could exceed 10 times the base salary of the lowest-paid position nor be less than one-third of the base salary of the lowest-paid position in the Judicial Branch) and up to 25% of said cap, they would contribute 35% of such excess. b) On the excess above the previous margin and up to an additional 25%, they would contribute 40% of such excess. c) On the excess above the previous margin and up to an additional 25%, they would contribute 45% of such excess. d) On the excess above the previous margin and up to an additional 25% more, they would contribute 50% of such excess and e) On the excess above the previous margin, they would contribute 55%. Likewise, this section clarified that, in no case, the sum of this special contribution and all deductions applied by law to all Judicial Branch pensioners could represent more than 55% of the total gross amount of the pension. It was also stated that, for cases in which that sum exceeded that 55% of the total gross amount of the pension, the special contribution would be readjusted so that the sum equaled 55% of the total gross amount of the pension. It was added that the resources obtained from the special contribution would enter the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial).

Shortly thereafter, in October of that same year 2018, eleven Deputies of the Legislative Assembly presented a new bill intrinsically related to the previous law, then called "Ley para fijar topes equitativos a las pensiones de lujo, rediseñar y redistribuir los recursos de la contribución especial solidaria y crear la figura de la jubilación obligatoria excepcional" ("Law to set equitable caps on luxury pensions, redesign and redistribute the resources of the special solidarity contribution, and create the figure of exceptional mandatory retirement"), which, in turn, was processed under legislative file No. 21.035.

A reading of the statement of purpose (exposición de motivos) of said bill suggests that the main objective (at least insofar as it concerns the study of this proceeding) was to make a new "cut" to the pensions received by retirees of different regimes, including that of the Judicial Branch, through a redesign specifically in the matter of the special solidarity contribution. This, in turn, was for the purpose of "giving a little more uniformity" to the regimes regarding benefits and burdens, reducing the exempt bases of the pension amounts "so that the progressive tables of the solidarity contribution could be applied to them" and thereby avoiding what was considered an "enormous inequality in the benefits of a pension or retirement." In its original version, the bill sought that, above the 8 lowest salaries (outside the Judicial Branch, the Executive Branch, the Supreme Electoral Tribunal, etc.), those deduction percentages for solidarity contribution purposes would be applied.

According to said statement of purpose, under the legislation in force at that time, this was the outlook regarding the bases exempt from payment of the mandatory solidarity contribution:

And, with the bill, an attempt was made to try to standardize the situation of the various regimes, as follows:

Likewise, the bill maintained that the foregoing measures sought for the Executive Branch to have "new and constant" resources, broadening the taxpayer base by lowering the exempt cap on the pension and collecting revenues over a 10-year period to advance the payment of domestic and foreign debt and thus overcome the fiscal and unemployment crisis that, it was affirmed, threatened the country's economic stability and development. In conjunction with the above, it was clarified that these measures originally possessed a temporary character in the treatment of the destination of the resources, "so that at the end of the term provided in this legislative initiative, they would be returning to the destinations established in the affected norms, that is, for the support of the pension funds and the single fund (caja única), as applicable." The cited bill was published in Supplement (Alcance) No. 14 to La Gaceta No. 214 of December 18, 2018, and subsequently continued with the corresponding legislative process. Finally, on December 5, 2019, the currently challenged Law No. 9796 was issued, under the name "Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria" ("Law to redesign and redistribute the resources of the special solidarity contribution"), which, in turn, was published in Supplement (Alcance) No. 286 to La Gaceta No. 243 of December 20, 2019, with the express indication that it would enter into force as of June 21, 2020.

It should be noted that, with respect to the pension regime of the Judicial Branch and insofar as relevant for resolving this matter, the legislation of interest ultimately stipulated that the amount exempt from the special solidarity contribution would be up to 6 base salaries of the lowest-paid position in the Judicial Branch (Article 4, subsection b). For its part, Article 5 indicated that the deduction of the solidarity contribution would be applied by complying with the progressive contribution scale (escalerilla de contribución progresiva) and it was clarified again that, in no case, the sum of the solidarity contribution and all deductions applied to all pensioners and retirees covered by the law could represent more than 55% of the total gross amount of the pension, such that, in the contrary case, the respective adjustment would be carried out so that the sum equaled that 55%. In accordance with the above, through section 7 of the law under study, it was also provided to reform the aforementioned Article 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), specifically its subsection a), such that this precise section established the following:

"In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess over the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess." In this way, at that time and before Judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021, was issued—which, as stated, ruled on the constitutionality of Law No.

9544-, ordinal 236 bis of the Organic Law of the Judicial Branch read as follows; that is, without any interpretation having been issued regarding its content:

"Article 236 bis- Special, solidarity-based, and redistributive contribution of retirees and pensioners In addition to the common contribution established in the preceding article, retirees and pensioners whose benefits exceed the amounts to be set shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following table:

• a)On the excess above the amount of six (6) base salaries of the lowest-paid position in the Judicial Branch and up to twenty-five percent (25%) of said ceiling, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess above the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess above the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess above the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess above the preceding margin, they shall contribute fifty-five percent (55%).

Under no circumstances may the sum of the special, solidarity-based, and redistributive contribution and the totality of the deductions applied by law to all retirees and pensioners of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%)(*) of the total gross amount of the pension that rightfully corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the special, solidarity-based, and redistributive contribution, established in this law, shall enter the Judicial Branch Retirement and Pension Fund." In addition to the foregoing, it should be highlighted that the approved Law No. 9796 discarded the numeral that originally contemplated transferring the resources obtained to the payment of the State debt. A prior situation which is proven by reading the final part of the provisions of the *supra* cited ordinal 236 bis of the Organic Law of the Judicial Branch.

Thus, as can be appreciated with crystal clarity, the substantial change, or the change of greatest importance made by Law No. 9796 with respect to the prior Law No. 9544, lies fundamentally in the <span style="text-decoration:underline">shortening of the exemption range for the solidarity contribution</span>, given that, from obligating the payment of the solidarity contribution to those exceeding the amount of ten base salaries of the lowest-paid position in the Judicial Branch, it moved to obligating those who exceed the amount of six of these salaries. <span style="text-decoration:underline">This last aspect, it is worth noting and warning from now on, is of great importance for the purposes of resolving this constitutionality proceeding, especially, based on the precedents that, on this same subject, this Constitutional Chamber has already issued</span>.

Likewise, it is worth reiterating and making clear that Law No. 9796 not only made a modification to the Judicial Branch pension regime but also to other regimes, <span style="text-decoration:underline">including, for example, that of the National Teachers' System (Magisterio Nacional),</span> a latter situation regarding which this Chamber has also already issued a pronouncement, as will be indicated in the following considerandos.

**VIII.- ON THE RIGHT TO RETIREMENT AND THE CONSTITUTIONALITY OF SOLIDARITY CONTRIBUTIONS, ESPECIALLY WITH REGARD TO THE JUDICIAL BRANCH RETIREMENT REGIME.** On several occasions, this constitutional body has referred to the so-called solidarity contributions imposed on pensioners. Of special interest, for the purposes of resolving this action of unconstitutionality, mention must be made of Judgment No. 2020-19274, of 4:30 p.m. on October 7, 2020, through which this jurisdiction ruled on the fundamental right to retirement, the limitations that may be applied to it, and, in particular, regarding this type of special contribution imposed, in that specific case, on the pensioners <span style="text-decoration:underline">of other regimes</span> (different from the Judicial Branch regime) through Laws Nos. 9380 and 9383. Expressly, on that occasion, the following was indicated:

"**VI.- On the right to social security and the right to retirement**. This Chamber, not infrequently, has established in its jurisprudence the importance of social security, a right that in turn comprises several rights; and, among them, the right to a pension or retirement. The right to social security is one of many other Economic, Social, and Cultural Rights, which encompasses other fundamental rights established in a series of norms contained in human rights instruments and treaties. In this sense, they are part of the Law of the Constitution (values, principles, and rights), which allow giving it specific content, as well as sustaining the state actions that seek to materialize the political ends and state conducts inherent to them, with the objective of materializing those fundamental rights. In Costa Rica, these are rights that appear both in the Political Constitution (as the great national social pact), but also, accepted as legal duties through the international obligations that the State acquires freely and voluntarily before the international community.

Thus, the right to social security, in the Political Constitution, finds its foundation in Articles 50, 73, and 74, as well as the integration in accordance with Articles 7 and 48 of the Constitution, with Articles 11 and 16 of the American Declaration of the Rights and Duties of Man; 22 and 25 of the Universal Declaration of Human Rights; 31 of the International American Charter of Social Guarantees; 25, 28, 29, and 30 of Convention No. 102 of the International Labour Organization, as well as Article 9 of the International Covenant on Economic, Social and Cultural Rights. In one of the most emblematic judgments of a nascent Constitutional Chamber, it was established with complete clarity the interrelation of these norms to establish the fundamental right to a pension. Thus, by Judgment No. 1990-1147 of 4:00 p.m. on September 21, 1990, it was established that:

"III.- In the first place, the Chamber declares that there does exist a constitutional and fundamental right to retirement, in favor of every worker in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, according to which: \"Article 33. Every man is equal before the law and no discrimination contrary to human dignity may be made\" \"Article 73. Social insurances are established for the benefit of manual and intellectual workers, regulated by the system of compulsory contribution of the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law determines...\".

That conclusion is confirmed in a series of international human rights principles and norms, which have not only the rank superior to ordinary law conferred on them by Article 7 of the Constitution but also a direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself, under the terms of Article 48 of the same (reformed by Law No. 7128 of August 18, 1989); among those rights, concretely, those recognized in Articles 25, 28, 29, and 30 - thus corrected as invoked in the action - of the Social Security (Minimum Standards) Convention, No. 102 of the ILO, in which it is established: \"Article 25. Every Member for which this part of the Convention is in force shall guarantee to the persons protected the provision of old-age benefits, in accordance with the following articles of this part\" \"Article 28. The benefit shall consist of a periodic payment, calculated in the following manner... \" \"Article 29. 1. The benefit mentioned in Article 28 shall be guaranteed, in the contingency covered, at least: a) to persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence... \"2. When the provision of the benefit mentioned in paragraph 1 is conditional upon the completion of a minimum period of contribution or employment, a reduced benefit shall be guaranteed at least: \"a) To persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment... \" \"Article 30. \"The benefits mentioned in Articles 28 and 29 shall be granted throughout the entire course of the contingency\".

Other international texts also recognize, either specifically the right to retirement - due to age or old age - (e.g., Art. 16 American Declaration of the Rights and Duties of Man; 22 and 25 Universal Declaration of Human Rights; 31 International American Charter of Social Guarantees; Art. 5 Convention on Equality of Treatment in Matters of Social Security, No. 118 ILO), or, in general, the Right to Social Security, within which retirement is universally understood to be included (e.g., Art. 11 American Declaration of the Rights and Duties of Man; and Art. 9 International Covenant on Economic, Social and Cultural Rights).

IV.- As can be seen, in both classes of said norms, the fundamental right of every worker to their retirement is recognized, and clear reference is made to old age, as relevant here, as the \"contingency\" determining the right to the benefit - retirement -. […] VII.- In any case, the Chamber considers that the right to retirement, in general or in the alluded special regimes, cannot normally be conditioned on the conduct of its holder, whether said conduct occurs prior to or subsequent to its consolidation as an acquired right. In reality, it is not ignored that the right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are, furthermore, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than an expression of a well-known principle of Human Rights Law, which can be called proportionality, and which is generally included as a *sine qua non* condition of the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them; a principle that is found enumerated, for example, in Articles 29.2 and 30 of the Universal Declaration of Human Rights, 29 and 30 of the American Convention on Human Rights, 5 of the International Covenant on Civil and Political Rights, and 4 and 5 of the International Covenant on Economic, Social and Cultural Rights"(…)." The cited precedent shows that, <span style="font-weight:bold; text-decoration:underline">from very early in the jurisprudence of this Constitutional Chamber, the right to retirement was recognized as a constitutional right in favor of every working person, under conditions of equality and without any discrimination, and it is part of a general right to social security, as has been explained above</span>.

In line with the discussion of the right to social security as an Economic, Social, and Cultural Right, the Inter-American Court of Human Rights has also contributed to its protection by establishing the justiciability of such rights in the inter-American system, in light of Article 26 of the American Convention on Human Rights, by recognizing it "autonomously, as an integral part of economic, social, cultural, and environmental rights," and within the international and national *corpus iuris* such as the norms of the Charter of the Organization of American States (OAS), as well as interpretation norms of the American Convention in Article 29. In this sense, as is fitting to recognize, both the Inter-American Court and the Constitutional Chamber use protective criteria of interpretation, especially when national norms grant greater rights than international norms, and vice versa, as this Chamber has done when enunciating the Law of the Constitution (principles, values, and rights), granting primacy to the constitutional norm over the rights contained in the international *corpus iuris*, especially when they guarantee more rights than the Political Constitution. In the same way, it is important to mention that the American Convention enunciates the principles of minimum guarantee and the *pro-persona* protective principle. The first, as the recognition that every international treaty constitutes a floor or base that prevents the State itself from failing to recognize the rights it committed to at the international level, in favor of the human person. Thus, it must always respect the minimum set in a specific treaty or another international agreement that exceeds it, but above all, without prejudice to improving those conditions through national legislation. As for the *pro-persona* principle, it must be noted that it privileges, prefers, and favors the application of the norms that offer the greatest protection to the rights of the human person, whether in a national norm or in international law.

More specifically, the right to social security at the international level must be characterized because it is composed of a minimum level of benefits comprising at least basic health care, pecuniary benefits for sickness, unemployment, old-age benefits, in case of work-related accidents and occupational diseases, family benefits, maternity benefits, invalidity benefits, and survivors' benefits, all of this in accordance with Convention No. 102 of the International Labour Organization. The right to social security and social protection refers to the right that the coverage of social security cannot be denied in an arbitrary or unreasonable manner, and the right to equality in the enjoyment of adequate protection in case of unemployment, illness, old age, or lack of means of subsistence, in circumstances that escape the person's control. By Judgment No. 2012-16628 of 4:30 p.m. on November 28, 2012, this Chamber established, in relation to the aforementioned Convention No. 102, the following:

"The fact is that international regulations establish what social security jargon terms, in some ILO documents, the social floor or social protection floor as a minimum of fundamental obligations that could indeed be justiciable; there do exist unfulfilled legal obligations enforceable domestically, or once exhausted, at the international level. […] The important point is that ILO Convention 102 contains nine branches of social security, where it establishes minimum standards for each of them, and enunciates principles for the sustainability and good governance of such systems. This convention includes a flexibility clause such that upon ratifying the Treaty, the State may choose at least three areas of protection." In this regard, it is clear that there is an obligation to recognize the floor or the normative base contained in international instruments, so that when the State interferes with those minimums, they constitute a true limit; they become a core of resistance that allows repelling transgressions or unjustified interferences by the State. Likewise, it must be protected against infringements by omission when these rights are disregarded. In this sense, one can claim such violations judicially when fundamental rights are deemed injured. The foregoing allows understanding that there is a true hard core of the right to a pension. This core must be formed first by the right to the minimum benefits defined by social security as a constitutional right and further specified by international regulations. <span style="font-weight:bold; text-decoration:underline">In this way, the base of the hard core of the right to a pension comprises the enjoyment of a series of national and international regulations that allow the insured person to have a dignified and adequate standard of living, without prejudice to affirming that there must be a reasonable and proportional relationship to the contribution to such right, as this is a compound right, as a social and economic effort of the different factors of production: State, Employer, and Workers.</span> It must also include other international parameters freely accepted by the country, such as international regulations that reflect the concerns of the international community.

As an economic, social, and cultural right, some of its characteristics must be taken into account that could nourish the right to social security, as indeed specific international treaties on the matter of older adults do. Others, for example, derived from the protection of the marital bond or de facto unions due to widowhood, such as a right to receive survivor benefits and other beneficiaries.

Secondly, due to the improvement in the benefit scheme of rights achieved by society at a prior historical moment, which should only be worsened with justification (actuarial studies, national and international economic studies), such that there is a right to the maintenance of the protection that the insured person receives in accordance with national legislation, upon belonging to a regime and especially declared upon fulfilling the necessary conditions and requirements, for the enjoyment of a right of peaceful enjoyment. As a result, a very important obligation is derived, that is, that there must be a very precise definition of the reasons that oblige the State to reduce conditions previously established through benefit policies, such that it must face stricter criteria according to its level of impact on the population (varying according to temporality and permanence). These policies, of course, must be concretized in legislation and secondary regulations approved under the respective legal framework (in accordance with regulatory power), but without being as general as an economic or fiscal crisis, since evidently, the State's resources will always be scarce and limited, and whose function of distributing wealth will always lead it to weigh where to place more resources in certain economic and social benefits, based on the need to achieve political, economic, or social objectives (in a positive and programmatic sense), which can cause "urgencies" in other areas that push for more state resources. In other words, the financial crisis is not in itself, nor can it be, a justification for making regressive decisions, but it is a trigger that must materialize in the public interest of the State to elevate concrete actions in its legislation. This, without forgetting that the Committee on Economic, Social, and Cultural Rights itself establishes a primacy of the law and the policy of these rights, where the lack of resources cannot serve as a pretext for their non-compliance.

Convention No. 102, of the International Labour Organization, is not a rigid instrument, as it offers a framework that allows States to adapt their national realities to the protected schemes, but there are certain rules that must accompany national efforts to achieve the universalization of insurance, with coverage that is reasonable and balanced for the sectors involved. It should be noted, again, that when referring to the hard core of a right, reference is made to that part of fundamental rights in which the State would not be legitimized to interfere or transgress, because, in that case, it would be infringing fundamental rights and freedoms, contained in the Political Constitution as well as in international obligations acquired in international instruments of Economic and Social Rights. (...) the question of whether it is possible to establish taxes on the benefits received, coming from the right to a pension, is of importance. From a Constitutional Law point of view, insofar as it integrates the principles, values, and rights contained in the Political Constitution, the close link with the human rights in force in the Republic, that the application of the challenged measures are the product of a democratic process, based on the public interest to contain and control public spending that has come to decimate the country's economic and reaction position. In this sense, this Chamber brings up Article 5, of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, known as the Protocol of San Salvador, in which it states:

"The States Parties may only establish restrictions and limitations on the enjoyment and exercise of the rights established in this Protocol through laws enacted for the purpose of preserving the general welfare within a democratic society, to the extent that they do not contradict the purpose and reason thereof." Thus, it must be affirmed that the right to a pension is not an absolute right, that although the conditions under which it was granted must be respected, this does not imply that the amount received month by month is exempt from restrictions and limitations. What the provision establishes is the recognition that economic and social rights entail benefit obligations of the State, which compromise its resources, so there is recognition that a counterweight may operate to help delineate these restrictions and limitations, of course, provided they are reasonable and proportional. In this way, they cannot contradict the purpose and reason of the right in question. Implicit in this provision is the need for laws, approved through a democratic process and by a democratic body such as the Asamblea Legislativa, to manage to establish those restrictions and limitations that provide that balance, duly weighted.

In the case of the plaintiffs, it is clear that the amount received by pensioners and retirees is adjusted to the amounts received by active officials, in this case, Diputados de la República. On the other hand, the approval of taxes, through law, in accordance with Article 121, subsection 13), of the Political Constitution ensures compliance with constitutional, as well as conventional, requirements of Article 5, of the Pact of San Salvador. The special, solidarity, and redistributive contribution thus fulfills another important aspect, which is the principle of tax legality, in which only through formal and material law can the income of the citizens of the Republic be taxed, which is inherited from the Anglo-Saxon legal tradition of the necessary representation in the approval of taxes: "no taxation without representation." Furthermore, as a tax, the special, solidarity, and redistributive contribution is framed within the doctrine of the Ley de Normas y Procedimientos Tributarios, in the sense that it defines the taxable event (pension benefit) received as a state and benefit activity, and provides that the resources collected will be allocated to social security. In this sense, Article 4, of Law No. 9383, establishes this special contribution for social security quotas when it indicates that the collected resources return to the special pension regimes chargeable to the national budget, as well as the direct financing of the Non-Contributory Regime, administered by the Caja Costarricense de Seguro Social (CCSS). In the same sense, the sole article of Law No. 9380, insofar as it establishes the destination of the contributions for special pension regimes chargeable to the national budget. With all this, the provisions of Article 5, of the Pact of San Salvador are complied with. And, despite all the foregoing, the amount of the economic benefit of the pension continues to be maintained in an upper stratum of the national pension system, close to the income of those who provide services in a competitive labor sphere, which is why they maintain an economic level that still allows them to integrate and actively participate in the economic, social, cultural, and political spheres of the country. This is logical with the requirement of adequacy and dignity of pensioners and retirees; of course, the contribution and assessment being necessary as the contributory capacity increases, especially for those regimes that had not been previously intervened due to the excesses they contained, without unprotecting the amounts of the other pensioners and retirees (…)" (The emphasis is not part of the original).

Now, with respect properly to the Poder Judicial, as indicated in considerando VII of this judgment, a few short years ago, this constitutional jurisdiction, on the occasion of the promulgation of the also cited Law No. 9544—and mainly, by virtue of the provisions of Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial—through judgment 2021-11957 of 5:00 p.m. on May 25, 2021, referred, firstly and grosso modo, to the figure of the special solidarity contribution specifically imposed on the retirees of this institution, and emphasized its constitutionality.

To arrive at that conclusion, the Chamber, on that occasion, first also alluded to the right to enjoy retirement, as well as to the limitations and regulations that can be imposed on it. On this matter, on this occasion, the following was expressly indicated:

"XXIII.- Drafted by Judge Hernández López. Regarding the right to enjoy a retirement. This Tribunal has clearly indicated that the model of the social State of Law and the concept of social security adopted by our Political Constitution includes—as one of its elements—the right in favor of workers to obtain a retirement after fulfilling certain normatively established conditions. This is one of the forms of expression of the fundamental right to social security enshrined in our constitutional regulations, to which are added health insurance, the different types of contributory retirements, as well as non-contributory ones, among others. In this sense, judgment 2018-19030 of November 14, 2018, which served as the basis for resolving several retirement claims, clearly set forth the characteristics that this Chamber has specifically defined for this right:

IV.- Regarding the right to retirement. Retirement constitutes the economic benefit obtained after working and contributing to a specific regime for a determined period, and whose purpose is to guarantee a dignified life for the person, after their stage as a worker ends. This Tribunal has held, on reiterated occasions, that the right to a pension must be classified as a fundamental right, derived from numeral 73 of the Political Constitution, and that it is acquired from the moment the person fulfills all the requirements established by the corresponding legislation. Likewise, the existence of different regimes has been recognized, such as the Collective Capitalization one, in which the periodic contributions of the members create a common fund from which the payment of the participants' pensions will be covered, or the Individual Capitalization one, in which the periodic contributions do not come from a group of people, but from an individual, who through their contributions to the fund, intends to guarantee the payment of their pension when they meet the requirements for obtaining it. Finally, there is the pension regime chargeable to the National Budget, in which the financing of retirements and pensions is chargeable to the national budget. Now, regarding the general topic of the right to a pension, in judgments numbers 1147-90 of 4:00 p.m. on September 21, 1990, 487-94 of 4:06 p.m. on January 25, 1994, and 2010-1625 of 9:30 a.m. on January 27, 2010, the Tribunal expressed, in what concerns us, the following:

"III.- Firstly, the Chamber declares that there is indeed a constitutional and fundamental right to retirement, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, according to which:

"Article 33 Every person is equal before the law, and no discrimination contrary to human dignity may be made." " Article 73 Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of forced contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies as the law may determine..." That conclusion is confirmed in a series of principles and international human rights norms, which have not only the rank superior to ordinary law conferred upon them by Article 7 of the Constitution but also direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself, pursuant to Article 48 thereof (reformed by Law No. 7128 of August 18, 1989); among those rights, specifically, those recognized in Articles 25, 28, 29, and 30—as corrected from those invoked in the action—of Convention No. 102 on Social Security of the ILO, in which it is established:

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

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

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

• a)To the protected persons who have completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment..." " Article 30 "The benefits mentioned in Articles 28 and 29 shall be granted throughout the entire duration of the contingency." Other international texts also recognize, either specifically the right to retirement—by age or old age—(e.g., Article 16 American Declaration of the Rights and Duties of Man; Articles 22 and 25 Universal Declaration of Human Rights; Article 31 International American Charter of Social Guarantees; Article 5 Convention No. 118 concerning Equality of Treatment in Respect of Social Security of the ILO), or, in general, the Right to Social Security, within which retirement is universally understood to be included (e.g., Article 11 American Declaration of the Rights and Duties of Man; and Article 9 International Covenant on Economic, Social and Cultural Rights).

IV.- As can be seen, in both classes of the aforementioned norms, the fundamental right of every worker to their retirement is recognized, and reference is clearly made to old age, in what concerns us, as the "contingency" determining the right to the benefit—retirement—. This does not understand the objection of the Procuraduría General, when it affirms that the provisions of Convention No. 102 of the ILO only protect "workers who suffered a contingency within their employment relationship, which is not the case of the appellant... (p. 62 fte.); thus giving, apparently, to the expression an incomprehensible sense of abnormality, certainly without any explanation." (…)

"II. This Chamber has already dealt with the matter raised on other occasions (constitutional and fundamental right to retirement and pension in favor of every worker), there being sufficient elements and jurisprudence which empowers its review in accordance with the second paragraph of Article 9 of the Ley de la Jurisdicción Constitucional.

III.By resolutions number 6124-93, of two-thirty p.m. and 6125-93, of two-thirty-three p.m., both of November twenty-third of the current year, two unconstitutionality actions were reviewed whose allegations were the same as those invoked by the plaintiffs in this one. In resolution number 1147-90, of four p.m. on September twenty-first, nineteen ninety, the Chamber considered that the pension or retirement constitutes a fundamental right with constitutional and international recognition that:

"belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution." Thus, it is recognized in Articles 25, 28, 29, and 30 of Convention No. 102 on Social Security of the I.L.O., Article 16 of the American Convention on the Rights and Duties of Man, Articles 22 and 25 of the Universal Declaration of Human Rights, Article 31 of the International American Charter of Social Guarantees, Article 5 of Convention No. 118 concerning Equality of Treatment in Respect of Social Security of the I.L.O., Article 9 of the International Covenant on Economic, Social and Cultural Rights, an international sphere, which in accordance with Article 7 of the Constitution, is integrated into our legal system.

IV.The membership in a determined pension or retirement regime is acquired from the moment one begins to contribute to said regime, but not the concrete right to retirement, which is acquired when the interested party fulfills all the preconditions established in the law, (...)"

(…).

"IV. The right to retirement and the Social State of Law. Articles 50, 56, and 74 of the Political Constitution configure "the model of the social and democratic State of Law" (Res. 9255 of 4:03 p.m. on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law "entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations" (Res. 13205 of 3:13 p.m. on September 27, 2005). Consequently and based on the Social State of Law, "our Political Constitution contemplates a set of benefit rights related to the protection of... workers" (ibid), as is the case of the right to retirement. (…)". (Judgment 2018-19030 of November 14, 2020) XXIV.- Drafted by Judge Hernández López. The limitations and regulation of the scope of the right to a retirement recognized in favor of workers. On the topic of the right to retirement, this Tribunal has also emphasized the power that the State has to regulate, order, and limit the scope of the cited right. In the same judgment 2018-19030, recently cited, it was set forth:

"V.- The right to a pension is not an absolute right. Like any other fundamental right, the right to a pension is not unrestricted, since it can be subjected to certain limitations, provided that these are established by means of a formal law, are reasonable, and do not impede its exercise." Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to a pension, <span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">when it can be proven that certain situations exist, such as inequalities or privileges, that jeopardize the sustainability of a regime</span><span style="font-family:'Times New Roman'">, and, therefore, threaten the nature of the system as such. On this matter, in vote number 2379-96 of 11:06 a.m. on May 17, 1996, the following was established:</span> II.- ON THE RIGHT TO RETIREMENT.- In repeated rulings, the pension or retirement has been recognized as a fundamental right in favor of the worker. See for all the pronouncement of this Chamber number 1147-90 at sixteen hours on September twenty-first, nineteen ninety, in which it was established: "In the first place, this Chamber declares that there does exist a constitutional and fundamental right to retirement, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being under conditions of equality and without any discrimination in accordance with articles 33 and 73 of the Political Constitution..." However, in the same cited pronouncement, it was established that said right is not absolute and may be subject to conditions and limitations: "In reality, it is not ignored that retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are also reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than the expression of a well-known principle of Human Rights Law, which can be called proportionality and is generally included as a sine qua non condition for the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them.".

From the transcribed text, it is clear that <span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">within the entire universe of limitations, conditions, and restrictions that the fundamental right to retirement may suffer, there will be a group of them that can be considered constitutionally valid provided they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the very exercise of the right in accordance with its nature and purpose. </span><span style="font-family:'Times New Roman'">It is also correct to conclude that - by imperative of the structural logic of our legal system - the first of the conditions just mentioned can be broadened to include limitations and conditions that come from texts of a higher hierarchy or of the same rank, as is the case here with the limitations that may arise from the Political Constitution itself, understood not only as a grouping of norms, but as a set of integrated regulations and principles aspiring to harmony.

Such concepts were endorsed by a majority of the Chamber, when the legislative consultation on the bill that finally became Law 9544 discussed here was addressed.<span style="font-family:'Times New Roman'; -aw-import:spaces"> </span><span style="font-family:'Times New Roman'">In that pronouncement (judgment 2018-</span><span style="font-family:'Times New Roman'">005758</span><span style="font-family:'Times New Roman'">) it was reaffirmed:

"(…) <span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">It should be noted</span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline"> that the right to retirement is not unrestricted, since it can be subjected to certain limitations, provided that these are established through a formal law, are reasonable</span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">,</span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline"> and do not affect its essential content</span><span style="font-family:'Times New Roman'">. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement, when it can be proven that certain situations exist that jeopardize the sustainability of a regime and, therefore, threaten the nature of the system as such.” And later, it concluded that:

“However, from the foregoing, it clearly follows that the right to retirement can be subjected to limitations, like any other fundamental right. The foregoing implies that there is no right of the person to retire under specific conditions, since these may be varied when necessary to guarantee the existence of a specific pension and retirement regime, because otherwise, conditions could be created that make the system financially unsustainable, which would ultimately lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the lack of funds that prevent payment<span style="font-family:'Times New Roman'"> </span><span style="font-family:'Times New Roman'">to the interested party of the amount of their retirement. (…)” From what has been said, it is concluded that the thesis that <span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">the State, through its competent authorities, may adjust the specific conditions for exercising the right to retirement enjoyed by workers</span><span style="font-family:'Times New Roman'">, not only through the establishment of requirements to be met for its effective enjoyment, </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">but also through the precise modification of the characteristics of that enjoyment</span><span style="font-family:'Times New Roman'">, in order to balance the sustainability of said regime and respecting the requirement that </span><span style="font-family:'Times New Roman'">the changes “be established through a formal law, be reasonable</span><span style="font-family:'Times New Roman'">,</span><span style="font-family:'Times New Roman'"> and do not affect its essential content.” (see judgment 2018-5758 just cited) (…)” (The highlighting is not part of the original).

<span style="font-family:'Times New Roman'; -aw-import:ignore"> </span> <span style="font-family:'Times New Roman'; -aw-import:ignore"> </span> <span style="font-family:'Times New Roman'">Lines later, in this same judgment 2021-11957, </span><span style="font-family:'Times New Roman'; text-decoration:underline">this Chamber referred to the special solidarity contribution</span><span style="font-family:'Times New Roman'"> (contribución especial solidaria) - created, as stated, through Law No. 9544, with the consequent reform to article 236 bis of the Organic Law of the Judicial Branch, explaining and concluding equally the following:</span><span style="font-family:'Times New Roman'; -aw-import:spaces"> </span> “<span style="font-family:'Times New Roman'; font-weight:bold">XLV.- Drafted by Magistrate Hernández López. The constitutionality of the legal figure of the special, solidarity, and redistributive contribution in general</span><span style="font-family:'Times New Roman'">. This Tribunal has stated on previous occasions that the so-called special, solidarity, and redistributive contribution (contribución especial, solidaria y redistributiva) is not comparable to a tax<span style="color:#ff0000"> </span>and does not constitute one under the terms provided by the Political Constitution in articles 18 and 121 subsection 13), since it is conceived solely to benefit the regime of the obligated contributors, but under no circumstances may those funds enter the State's coffers, with the character of current income to satisfy expenses other than the burdens of the retirement and pension system (see in that regard judgment number 5236-99 at 14:00 hours on July 7, 1999). It has also been stated that this type of contribution is a legal obligation born from a system that contemplates the<span style="font-family:'Times New Roman'"> </span><span style="font-family:'Times New Roman'">contribution of the affiliated servers, given that this act of setting the contribution must indeed be controlled, in such a way that it is possible to analyze, in jurisdictional sede, the respect for the established legal procedure and</span><span style="font-family:'Times New Roman'"> </span><span style="font-family:'Times New Roman'">the reasonableness in setting</span><span style="font-family:'Times New Roman'"> </span><span style="font-family:'Times New Roman'">the contribution (see judgment number 5236-99 at 14:00 hours on July 7, 1999). Thus, the special, solidarity, and redistributive contribution established in that numeral 236 bis of the Organic Law of the Judicial Branch, </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">is not a novel mechanism</span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline; color:#ff0000"> </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">used by the legislator to try to strengthen a retirement and pension regime; on the contrary, it has already been used in other systems</span><span style="font-family:'Times New Roman'"> as was done in Law number 7268, which is the Reform of the Pension Regime of the National Teaching Profession, since this Tribunal, in unconstitutionality action number 3683-M-93, had analyzed that contribution and considered the following:<span style="font-family:'Times New Roman'; -aw-import:spaces"> </span> “III.- ON THE CONTRIBUTION PROVIDED FOR IN ARTICLE 12<span style="font-family:'Times New Roman'; font-weight:bold">.-</span><span style="font-family:'Times New Roman'"> The contributions, both the general and the special, established for pensioners and retirees in article 12 of Law number 7268, have constitutional legitimacy, being in the first place measures founded on the social nature of the right to retirement, which are inscribed within the principles that make up the Social State of Law enshrined in article 50 of the Constitution, and in the second place because, due to that indisputable social nature, the right to retirement requires active and predominant State participation for its effective realization, so although it could not be eliminated or disregarded entirely, it can be limited, conditioned, and restricted to the extent that the State - society - finds itself materially unable to contribute to its effective realization beyond a certain level, such limitations having to be accepted since </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">their purpose is precisely to ensure the survival and effective exercise of the right to retirement for all workers and specifically the materialization of the right to retirement </span><span style="font-family:'Times New Roman'">for all members of the Pension Regime of the National Teaching Profession. For further support, the resolution of this Chamber number 1925-91 at twelve o'clock on September twenty-seventh, nineteen ninety-one can be cited, in which it was stated:

"1) Nature of the contribution to the regime: The first aspect consulted is to elucidate whether the contributions established in this article of the bill are or are not a tax. The pension and retirement regime under analysis corresponds to the so-called contributory modality, in which a fund is constituted with contributions from workers, employers or patrons, and the State to cover the cost of benefits, once the worker retires. It corresponds to the Law to define, in accordance with the special characteristics of each pension or retirement system, the amount of the contributions corresponding to each of the three parties. As the consultation indicates, the Supreme Court of Justice, in a resolution at fifteen o'clock on August 12, 1987, declared the unconstitutionality action filed against the power of the Costa Rican Social Security Fund to determine the quotas and benefits of social security without merit. This Chamber shares what was expressed therein and finds no reason to vary that criterion, which it adopts as its own, declaring that the contribution referred to in article 12 of the bill, by its nature and effects, is not a tax, as the most qualified constitutional jurisprudence and doctrine have indicated.” Also in judgment number 1341-93 at ten hours thirty minutes on March twenty-ninth, nineteen ninety-three, the question was heard again and the criterion issued on the matter was reiterated, stating the following:

VII.- CONTRIBUTION TO THE RETIREMENT AND PENSION FUND AND CONFISCATION<span style="font-family:'Times New Roman'; font-weight:bold">.-</span><span style="font-family:'Times New Roman'"> It is also alleged, in the different retirement regimes, that it violates fundamental rights to require beneficiaries to contribute to the Fund, because it implies giving retroactive effect to Law 7268 or 7302, as the case may be, and ultimately, characterizes the measure as confiscatory. This Chamber, through Vote No. 1925-91 at 12:00 hours on September 27, 1991, expressed that the contributions charged pursuant to article 12 of Law 7268 do not constitute a tax, as the regime is structured according to the so-called contributory modality, in which a fund is constituted with contributions from workers and beneficiaries, employers or patrons, and the State, to cover the cost of the benefits; and it corresponds to the Law to define, in accordance with the special characteristics of each pension or retirement system, the amount of the contributions that each party must provide. This criterion was expressed by the Chamber, in the optional Legislative Consultation, during the approval process of Law 7268, in which article 12 was specifically consulted. The Chamber stated that the contribution is the payment of a legal obligation, an essential condition for the existence of the regime itself, and whose basis is the strengthening of the Fund, for the protection and benefit of the contributors themselves. The setting of the contribution, within the limits stated in the same Law, must follow technical, actuarial criteria, to define the real cost of the system, such that 'the only way in which the holders of a pension or retirement can fully enjoy it is by covering the proportional cost that corresponds to them of the total system' (Cf. indicated ruling) and the raison d'être of the law is thus adequate to the Christian principle of social justice (Art. 74 of the Political Constitution) and proportionate to the duty to contribute to the extent of the benefit obtained. From that same point of view, it was concluded that the contribution is not confiscatory. The Chamber finds no reasons to modify the expressed criterion, and as far as this aspect of the amparo action is concerned, it proceeds to declare it without merit, maintaining its jurisprudence (Article 9 of the Law of Constitutional Jurisdiction).”<span style="font-family:'Times New Roman'; -aw-import:spaces"> </span> Based on what was stated supra, <span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">the special, solidarity, and redistributive contribution challenged in this unconstitutionality action must be understood as a constitutionally valid limitation on the right to retirement, arising from the social character of that right, and for that reason, it is not unconstitutional in itself, </span><a name="_Hlk165278792"></a><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">nor in relation to the objectives pursued with its creation</span><span style="font-family:'Times New Roman'">.

<span style="font-family:'Times New Roman'; font-weight:bold">XLVI.-. Drafted by Magistrate Hernández López. On the creation of the special, solidarity, and redistributive contribution as a power of the Legislative Branch</span><span style="font-family:'Times New Roman'">.-</span><span style="font-family:'Times New Roman'; font-weight:bold"> </span><span style="font-family:'Times New Roman'">The plaintiffs argue that in accordance with the provisions of article 121 subsection 13 of the Political Constitution, the Legislative Assembly lacks the competence to create special, solidarity, and redistributive contributions in favor of a specific fund, since that subsection states “establish national taxes and contributions,” recalling that the legislator's freedom of configuration is limited by the Law of the Constitution. Notwithstanding the foregoing, the Chamber considers that they are not correct in this claim because, as stated, the special, solidarity, and redistributive contribution is not configured as a tax, but as a parafiscal charge (carga parafiscal), founded on the social nature of the right to retirement, which is inscribed within the principles that make up the Social State of Law enshrined in article 50 of the Constitution, and therefore it is constitutionally valid, and furthermore because, as stated, it is vested with an indisputable social nature protected by the State through the adoption of measures necessary for the effective realization of the social right to which it is directed, </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">therefore its imposition is valid precisely </span><a name="_Hlk165278781"></a><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">to ensure the survival and effective exercise of the right to retirement for all workers of the Judicial Branch</span><span style="font-family:'Times New Roman'">.

Equally, it must be remembered that, for the Chamber, measures such as the special, solidarity, and redistributive contribution - as contributions to social security - <span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">are parafiscal contributions (contribuciones parafiscales), imposed in the exercise of a sovereign power of the State for the fulfillment of social or economic purposes and which can only be created through formal law.

<span style="font-family:'Times New Roman'">On the subject of the parafiscal contribution, the constitutional jurisprudence, following doctrine, has considered that parafiscal contributions are figures that belong to general taxation. By way of example, see judgments 4785-93 and 6478-96. In this last case, the following was established:

“II.- On the merits: the plaintiff challenges the employer's pecuniary obligation established by article 5 of the Organic Law of the Banco Popular y de Desarrollo Comunal, which is transcribed below, in the relevant part:

‘Article 5.- The Capitalized Labor Fund shall be formed by:

• a)A contribution of 1/2% monthly on the remunerations, whether salaries or wages, that must be paid by private employers, the Branches of State, and all public institutions; and (...)’, alleging a violation of the right to private property and freedom of commerce. Regarding the claimed injuries, it must be remembered that the amount charged to employers to constitute part of the mandatory savings of their employees consists of a parafiscal contribution, under the terms and with the consequences defined by this Tribunal:

“This special legal configuration necessarily implies that the contributions, both from producers and from third parties, including the State, that make up the Fund (subsection a) article 2° ibidem), are true contributions with clear economic and social purposes, known in Tax Law doctrine as ‘parafiscal contributions’ (contribuciones parafiscales), which are imposed by the State but do not appear in the general budget of income and expenses, hence receiving the aforementioned denomination. The same Financial Law doctrine defines the figure as 'tributes established in favor of public or semi-public, economic or social entities, to ensure their autonomous financing'. The foregoing means that the parafiscal contribution does not constitute a figure distinct from general taxation.(...)”<span style="font-family:'Times New Roman'"> <span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline"> </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">In all cases analyzed by the constitutional jurisprudence of this type of contributions, we find a common denominator, which is that we are facing a contribution that is coercively imposed by the State to achieve a specific economic or social purpose for a group of people who have common interests</span><span style="font-family:'Times New Roman'"> (farmers, professionals, cooperative members, workers, etc.).

<span style="font-family:'Times New Roman'">(…)

<span style="font-family:'Times New Roman'">It is invoked as a violation that the Legislative Assembly has created a special tax, when, in accordance with numeral 121, subsection 13, of the Fundamental Charter, this constitutional body is only empowered to establish national taxes and approve municipal ones. This grievance must be rejected for several reasons. First, what is created in this case is a parafiscal contribution, that is, a tribute destined for an economic and social purpose, in this case to cover the administrative expenses of the Board being created, which is more than justified constitutionally and doctrinally. Secondly, it is logical that if a group of workers has a special retirement and pension regime, forming a fund separate from the general regime - the disability, old age, and death one administered by the Caja Costarricense del Seguro Social -, it is reasonable and proportional that active workers, retirees, and pensioners contribute to the maintenance of the body whose competence is its administration. Finally, if the Legislative Assembly has the power to create tributes with general scope, this does not prevent it from creating parafiscal contributions, when there are objective and reasonable grounds for their creation (…)” (The highlighting is not part of the original).

<span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:ignore"> </span> <span style="font-family:'Times New Roman'">In this way, it is observed how the Chamber has been of the criterion that the imposition, </span><span style="font-family:'Times New Roman'; font-style:italic; text-decoration:underline">per se</span><span style="font-family:'Times New Roman'; text-decoration:underline">,</span><span style="font-family:'Times New Roman'"> of the payment of a special solidarity contribution cannot be categorized as unconstitutional, nor does it represent a violation of fundamental rights, especially that of pensioners. The foregoing, above all, if one considers its objectives or purposes, which lie in guaranteeing the right to retirement, in this case, the right of the officials of the Judicial Branch.

<span style="font-family:'Times New Roman'; font-weight:bold">IX.- ON THE CURRENT OBLIGATION OF CONTRIBUTION BY THE RETIREES OF THE JUDICIAL BRANCH, THE MAXIMUM CAP OF 55%, AND WHAT HAS BEEN PROVIDED ON THE MATTER BY THIS CONSTITUTIONAL CHAMBER</span><span style="font-family:'Times New Roman'">. By virtue of the provisions in ordinals 4 and 7 of Law No. 9796, the last of which, in turn, reformed ordinal 236 bis, subsection a), of the Organic Law of the Judicial Branch, the retirees of the Judicial Branch who are currently obligated to contribute in a special, solidarity, and redistributive manner are those who receive a pension amount </span><span style="font-family:'Times New Roman'; text-decoration:underline">greater than</span><span style="font-family:'Times New Roman'"> 6 base salaries of the lowest-paid position in the Judicial Branch.

The foregoing, in turn, in accordance with the following table of amounts and percentages set forth in that same subsection 236 bis of the Ley Orgánica del Poder Judicial, namely, the following:

</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“a) On the excess over the amount of six (6) base salaries of the lowest paid position in the Poder Judicial and up to twenty-five percent (25%) of said ceiling, they shall contribute thirty-five percent (35%) of such excess.

</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 46.35pt; text-indent:-18pt; text-align:justify; widows:2; orphans:2; font-size:12pt; -aw-import:list-item; -aw-list-level-number:0; -aw-list-number-format:'%0)'; -aw-list-number-styles:'lowerLetter'; -aw-list-number-values:'2'; -aw-list-padding-sml:8pt"><span style="-aw-import:ignore"><span style="font-family:'Times New Roman'">b)</span><span style="font:7pt 'Times New Roman'; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0; </span></span><span style="font-family:'Times New Roman'">On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.

</span></p><p style="margin:0pt 42.4pt 0pt 46.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 46.35pt; text-indent:-18pt; text-align:justify; widows:2; orphans:2; font-size:12pt; -aw-import:list-item; -aw-list-level-number:0; -aw-list-number-format:'%0)'; -aw-list-number-styles:'lowerLetter'; -aw-list-number-values:'3'; -aw-list-padding-sml:8.68pt"><span style="-aw-import:ignore"><span style="font-family:'Times New Roman'">c)</span><span style="font:7pt 'Times New Roman'; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0;&#xa0; </span></span><span style="font-family:'Times New Roman'">On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.

</span></p><p style="margin-top:0pt; margin-right:42.4pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 46.35pt; text-indent:-18pt; text-align:justify; widows:2; orphans:2; font-size:12pt; -aw-import:list-item; -aw-list-level-number:0; -aw-list-number-format:'%0)'; -aw-list-number-styles:'lowerLetter'; -aw-list-number-values:'4'; -aw-list-padding-sml:8pt"><span style="-aw-import:ignore"><span style="font-family:'Times New Roman'">d)</span><span style="font:7pt 'Times New Roman'; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0; </span></span><span style="font-family:'Times New Roman'">On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.

</span></p><p style="margin-top:0pt; margin-right:42.4pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">e) On the excess over the preceding margin they shall contribute fifty-five percent (55%</span><a name="_ftnref1"></a><a href="#_ftn1" style="text-decoration:none"><span style="font-family:'Times New Roman'; font-size:8pt; vertical-align:super; color:#000000">[1]</span></a><span style="font-family:'Times New Roman'">).” </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><br /><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">According to the provisions </span><span style="font-family:'Times New Roman'; font-style:italic">supra,</span><span style="font-family:'Times New Roman'"> it is understood, then, that those who receive higher pension amounts must contribute greater sums to the system.

</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">According to the study of the case file, for the second half of 2019 —the year in which the challenged regulation was issued—, the lowest salary of the lowest position in that institution (</span><span style="font-family:'Times New Roman'">Auxiliar de Servicios Generales 1)</span><span style="font-family:'Times New Roman'">, corresponded to the amount of 425,800.00 colones. Thus, those who then received —in 2019— a </span><span style="font-family:'Times New Roman'; text-decoration:underline">gross pension amount exceeding ¢2,554,800.00 colones</span><span style="font-family:'Times New Roman'">, had to make said contribution, as stated, </span><span style="font-family:'Times New Roman'; text-decoration:underline">on a staggered or progressive basis</span><span style="font-family:'Times New Roman'">.

</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">For the first half of 2023, according to data from the Dirección de Gestión Humana of the Poder Judicial, the lowest salary of the lowest-ranked position (corresponding to the position of Auxiliar de Servicios Generales 1) was set at the sum of 433,800.00 colones, such that </span><span style="font-family:'Times New Roman'; text-decoration:underline">pensions exceeding ¢2,602,800.00 colones</span><span style="font-family:'Times New Roman'"> were those required to make the solidarity contribution.

</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">Having said the foregoing, it is worth noting that, </span><span style="font-family:'Times New Roman'; text-decoration:underline">in addition to this special contribution,</span><span style="font-family:'Times New Roman'"> the pension amounts of Poder Judicial retirees are subject to </span><span style="font-family:'Times New Roman'; text-decoration:underline">a series of additional deductions</span><span style="font-family:'Times New Roman'">. Pursuant to the provisions of subsection 236, paragraph 1°), of the Ley Orgánica del Poder Judicial —which was amended by the cited Ley No. 9544—, retirees must contribute 13% of their pension to the Fondo de Pensiones of the Poder Judicial. Furthermore —as is clear from the report issued by the then President of the Corte Suprema de Justicia—, Poder Judicial retirees also have deducted from their pension amount that pertaining to administrative expenses of the Junta Administrativa of the Fondo de Jubilaciones y Pensiones of the Poder Judicial (“</span><span style="font-family:'Times New Roman'; font-style:italic">five per thousand of the salaries earned by</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">judicial employees, as well as from the retirement benefits and</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">pensions charged to the Fund</span><span style="font-family:'Times New Roman'">”</span><span style="font-family:'Times New Roman'">, according to Article 239 of the Ley Orgánica del Poder Judicial), income tax (which ranges between 10% and 25%), a percentage for CCSS maternity and sickness insurance (of 5.50%), among other amounts.

</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">Concomitantly, it is worth reiterating what, on this point, is stipulated by Article 5 of the Ley No. 9796 under review, on the understanding that:

</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“In no case may the sum of the solidarity contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension or pensions to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%), with respect to the total gross amount of the pension or pensions, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pensions.” </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">Based on the foregoing, it is thus feasible to state that, pursuant to the provisions of the currently effective Ley No. 9796, a series of deductions can be applied to the pension amount received by Poder Judicial retirees —including that pertaining to the solidarity contribution—, which, all added together, </span><span style="font-family:'Times New Roman'; text-decoration:underline">can reach a maximum of 55%.</span><span style="font-family:'Times New Roman'"> A </span><span style="font-family:'Times New Roman'; font-style:italic">contrario sensu</span><span style="font-family:'Times New Roman'">, this regulation allows, </span><span style="font-family:'Times New Roman'; text-decoration:underline">in these latter cases</span><span style="font-family:'Times New Roman'">, that the retirees of this institution might only receive 45% of the original amount earned as a pension.

</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">Now, at this point in this judgment, it is extremely important to note that although —as explained above— this Sala Constitucional has held that the imposition of the payment of a solidarity contribution is not in itself unconstitutional, it has also stated and found, on other occasions, </span><span style="font-family:'Times New Roman'; text-decoration:underline">that the sum total of reductions made to the retiree’s pension amount (including the amount for the solidarity contribution) cannot exceed 50%, such that any percentage established in excess of that does constitute a condition of unconstitutionality.

</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">This criterion was first held by this constitutional body in the already referenced Judgment </span><a name="_Hlk164846079"></a><span style="font-family:'Times New Roman'">2020-19274, of 4:30 p.m. on October 7, 2020 —which corresponds to an acción de inconstitucionalidad filed against the provisions of Leyes Nos. 9380, 9381, 9383, and 9388, and through which, precisely, the reductions made to the pension amounts of other regimes different from the Poder Judicial for the special solidarity contribution were studied—. On that occasion, on this particular point, the following was expressly stated:

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“[T]he examination that must be made of the norms challenged in this action must contemplate an analysis that permits resolving, at the outset, the legitimate claims of pensioned persons to have a certain stability in law, in their finances, and to make an adequate weighing of the State’s needs to act within a framework of responsibility in managing the resources that serve to grant these pensions.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">(…)

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Convention No. 102, of the International Labour Organization, is not a rigid instrument, as it offers a framework that allows States to adapt their national realities to the protected schemes, but there are certain rules that must accompany national efforts to achieve the universalization of insurance, with coverage that is reasonable and balanced for the sectors involved. It is worth noting, again, that when referring to the hard core of a right, reference is made to that part of fundamental rights in which the State would not be legitimized to interfere or transgress, because, in that case, it would be infringing upon the fundamental rights and freedoms contained in the Political Constitution as well as in international obligations assumed in international instruments on Economic and Social Rights. In general, this Sala must then ask itself, in this action, whether the legislation approved by the legislator, through Leyes N° 9380, N° 9381, N° 9383, and N° 9388, is respectful or not of the international rules invoked by the parties in the actions, as well as the national and international corpus iuris that forms part of the jurisprudential doctrine of this Tribunal.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">This leads us to topics such as the obligations contained in Convention No. 102, of the International Labour Organization, regarding the rights of the beneficiaries and those of good governance for the maintenance and preservation of these mechanisms of intergenerational solidarity.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0;&#xa0; </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">It is important to note that the Convention constitutes a mandatory reference framework for the States; that is, it contains provisions that are the basis for the regulations that they may subsequently approve according to the different types of coverage to which they committed. It bears repeating, as has been indicated on other occasions, that States can improve those standards. Adhering to that regulatory framework, Part XIII of the aforementioned Convention provides for other “Common Provisions” to the coverages offered to the insured, among them the causes for suspension, the possibility of judicially disputing matters related to the rights involved, as well as the rules generally governing administration. This means they are rules that amalgamate and unite certain aspects of the coverages; and, consequently, some of the administrative aspects must be considered together.

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Thus, it contains two core principles, the principle of financial solidarity (collective financing and financial solidarity in documents of the International Labour Organization) and the principle of State responsibility, where the former sets forth the obligation contained in paragraph 1) of Article 71 of the aforementioned Convention No. 102, which states:

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“The cost of the benefits granted in application of this Convention and the administrative expenses of these benefits shall be financed collectively by means of contributions or taxes, or by both means combined, in a manner that avoids that persons of modest economic resources have to bear an overly burdensome charge and that takes into account the economic situation of the Member and that of the categories of protected persons...” </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">That is, this provision establishes an obligation of the State not to place the entire weight of the benefits system on the beneficiaries, and all the more so on the least fortunate. Hence, the possibility that the benefits covered by the States in accordance with the Treaty can be financed with contributions and taxes (without being exclusive financial instruments), such that it is a collective responsibility of the beneficiaries and of the society in which a scheme is contextualized. This obviously obligates present and future beneficiaries through contributions, as well as society as a whole, through tax schemes. And, principally, it can be affirmed that it includes a protection clause for the weakest beneficiary, such as persons with fewer resources, by establishing a safeguard that prevents burdening these beneficiaries.

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">On the other hand, the principle of State responsibility in the provision of benefit obligations would be present in the same Article 71, but in paragraph 3), of the aforementioned Convention No. 102.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">Said provision states:

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="width:7.65pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">“The Member shall assume general responsibility for the service of benefits granted in application of this Convention, and shall take, when appropriate, all necessary measures to achieve this end; it shall ensure, when appropriate, that the necessary actuarial studies and calculations relating to equilibrium are established periodically and, in any case, prior to any modification of the benefits, the rate of insurance contributions, or the taxes destined to cover the contingencies in question.” </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="width:7.65pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">It is clear how the State is the guarantor of the country’s pensions. This subsection establishes a series of State guarantee obligations, especially that referring to leadership with respect to the service of granted benefits, which includes the formalities it must observe when exercising the implicit obligation to oversee and materialize all measures involving the preservation of pension funds, including corrective ones. In this sense, the shortfall in resources caused by problems in administration could not be blamed on and borne by the beneficiaries; rather, the Convention establishes that the State must guarantee the benefits granted in any case. As will be discussed further on, this would encompass all the benefits to which it committed, established by Convention No. 102, of the International Labour Organization, especially because they constitute the sole means of subsistence that protected persons may have upon the occurrence of the social security coverages.

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">Now, it is of interest, in the case before us, to elaborate, in its general lines, on paragraph 2) of Article 71 of Convention No. 102, of the International Labour Organization, as it establishes the following</span><span style="font-family:'Times New Roman'">:

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">“The total of insurance contributions payable by the protected employees shall not exceed 50 per cent of the total of the resources allocated to the protection of employees and of their wives and children. For the purpose of determining whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be considered together, with the exception of family benefits and of benefits in respect of employment injuries and occupational diseases, if these latter are provided by a special branch</span><span style="font-family:'Times New Roman'">.” </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">A first point to note is that this paragraph 2) of the cited Article 71 of the Convention can be interpreted to mean that the costs for the “employees” of all contributions payable by them cannot exceed 50% to cover all the beneficiaries (employee, spouse, and children). Clearly, the rule refers to an international obligation and a restriction that the States have freely accepted, which they must apply in good faith in favor of the beneficiaries, such that it includes a ceiling on the taxing power that the State can demand from employees, whether in contributions and taxes (paragraph 1). This Tribunal observes that the provisions refer to a total “of resources allocated to the protection,” which are precisely obtained from contributions or taxes, “or by both means combined.”</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">Thus, it is a globally considered requirement concerning the quantum of financing mechanisms that the State can use when exercising taxing power over “employees.”</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">This conclusion can be reached when it sets forth the following normative parameter: “For the purpose of determining whether this condition is fulfilled, all the benefits provided by the Member [...] may be considered together…”, except for family benefits and employment injuries, which could increase the contribution.

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="width:7.65pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">To better illustrate the international obligation, it is necessary to refer to the General Survey concerning the social security instruments, carried out in light of the 2008 Declaration on Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of Conventions and Recommendations (Articles 19, 22, and 35 of the Constitution), Report III (Part 1B), held at the International Labour Conference, 100th session, 2011, which states the following:

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“455. Regardless of the sources and mechanisms of financing, the State must assume general responsibility for the provision of benefits granted in application of this Convention and adopt, where appropriate, all necessary measures to achieve this end (Article 71, paragraph 3, of Convention No. 102). The general financial responsibility of the State is complemented and reinforced by its general responsibility for the good administration of the institutions and services contributing to the application of this Convention (Article 72, paragraph 2). From a financial perspective, the general responsibility of the State generates numerous related obligations, including the need to ensure that: (1) the rates of contributions or taxes entering the system, while remaining sufficient to finance the cost of benefits, do not constitute an overly onerous burden for persons of modest economic means, the specific classes of persons protected, and the economy in general (Article 71, paragraph 1); (2) the costs of benefits are distributed equitably among employees, their employers, and the State, so that the total percentage of insurance contributions payable by employees for financing the system that provides protection to them and their families does not exceed 50 percent, while the remainder of the funds come from employers’ contributions and State subsidies (Article 71, paragraph 2); (3) adequate benefits are regularly provided from the system that are not less than the minimum level established by the Convention (Articles 65, 66, and 67); (4) the income and costs of the system are maintained in reasonably stable financial equilibrium (Article 71, paragraph 3); and (5) measures are foreseen aimed at minimizing the possibility that social security funds are misused, lost, or subject to embezzlement. The system of public institutions responsible for supervising social security schemes varies by country…” </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="width:7.65pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">In turn, attention is drawn to the same view expressed by the Committee of Experts, but this time, regarding the principle of collective financing, when it states:

</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“443. An obvious precondition for a social security scheme to be effective is that it must have effective mechanisms to obtain resources. The certainty, security, and adequacy of the benefits paid from social security funds depend on the regular and systematic inflow of financial resources and raises the basic question of how such resources should be collected. Broadly speaking, there are two main options for this purpose in order to achieve a balance between the system’s income and the expenditures arising from benefits: to raise the necessary resources collectively, that is, with the participation of all members of the community, or to allow each member to depend exclusively on individual capital accumulation, the investment of which will provide future benefits. The instruments under review, like all the updated ILO social security conventions, are based on the principle of collective financing of benefits, according to which the cost of benefits, as well as the expenses incurred in their administration, shall be financed collectively by means of contributions or taxes, or by both means combined, while they shall be distributed equitably among the interested parties (Article 71, paragraph 1, of Convention No. 102). This issue was clearly evident during the preparatory work of Convention No. 102.” 102: “Therefore, the main problem relating to financial resources that must be considered in international regulation appears to be the appropriate distribution of financial responsibilities among the insured, employers, and the State. […] It is an essential part of the concept of social security that the risk considered must be addressed through the collective assumption of the financial burden represented by the payment of benefits. Various possible combinations of contributions or taxes exist to carry out this idea. The drafting of the questionnaire does not attempt to contradict these concepts, except that it does not permit solutions that involve overburdening persons of scarce resources. The questionnaire also suggests the advisability of setting a maximum limit on the participation of wage-earners, so that at least half of the resources of social security systems are obtained in a more equitable manner through state subsidies or employer contributions” (citing “Organización Internacional de Trabajo, 1950, Informe IV (1), págs. 134 a 136”).

Similarly, the Committee of Experts ensures that it describes the breadth of options that countries may agree upon when fulfilling the financing obligations of social security systems, and mentions that:

“444. The Committee observes that national practices regarding the financing of social security systems show a significant range of options, ranging from tripartite contributions from the insured, employers, and the State, to systems financed by contributions from each of these actors separately, as well as programs jointly financed by contributions from workers and employers, with or without state subsidies. In view of such diversity of national financing policies, Convention No. 102 did not attempt <<to give its approval to any particular method of financing, to the exclusion of any other alternative procedure>>, but rather sought to <<determine certain very broad basic principles, to which different countries could adhere even when applying entirely different financial policies>> (citing “Organización Internacional de Trabajo, 1950, Informe IV (1), pág. 136”).” If the Convention establishes the need—reasonable, precise, and with the objective of establishing a solidarity-based system—then the necessity of establishing the contribution and deductions from wage-earners for the establishment and maintenance of a social security system cannot be questioned. This would be part of the intergenerational responsibility of these types of systems. Subsection 2) of Article 71 of ILO Convention No. 102 is carefully designed to address the State's power to demand contributions, deductions (cotizaciones), fees, charges, levies, and taxes from the beneficiaries of the pension system; first of all, taking into account the ability to pay, which is clear when the commented norm does not place all the weight and burden on the “wage-earner” or, in the aforementioned report, “insured.” Second, it cannot be understood as disconnected from the individual historical sacrifices of the beneficiary to achieve those formal and material requirements for access to the right to a pension. Third, the provision is careful to distribute responsibility for the system among the different social actors, including the State, primarily, in its dual role as employer and in its capacity as administrator and generator of good administration policies.

But the case before us requires clarifying the meaning of the word “wage-earner” contained in subsection 2) of Article 71 of the cited Convention, as it does not appear to refer only to active workers. It would remain to be determined whether “wage-earner” means only the worker before acquiring the right to a pension upon the advent of the formal and substantive conditions of the right, or whether it is possible to understand that wage-earner also refers to another type of system beneficiary. In the Chamber's opinion, a broader interpretation must be given that includes not only the active worker, to admit that indeed, the retired person or pensioner would be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic point of view, in that the retired person or pensioner receives a deferred salary that they built with their contributions throughout their working life. Indeed, it cannot be overlooked that in the document of the Committee of Experts, the concept of wage-earners evolves when it refers to the “insured.” Thus, the concept must be assimilated to both obligors, as potential and current insured persons: pensioner and wage-earner. Note that the cited study emphasizes that there is no straitjacket for States; on the contrary, the approach must respond to national contexts, and the evolution of systems cannot be ruled out to agree on a supportive financing system and good governance within the framework and evolution of human rights, as will be stated below. If the provision seeks to achieve a balance, it is perfectly understandable that it should include all those who receive a pecuniary sum resulting from the agreed benefit, since in that sense, it distributes that burden among all participants, which is what the international norm really seeks to establish. This interpretation would replicate positively with the already cited Committee of Experts. Consequently, it must be understood that “wage-earner” or “insured” has a broad meaning and is not a term that excludes retired or pensioned persons.

Having established the foregoing, that both contribute, then the principle of collective financing for this type of benefits follows as a natural consequence, which, as indicated, would consist, on one hand, of the contributions and/or deductions (cotizaciones) of wage-earners and employers; and, on the other, also includes the support of the entire community: that is, of society through the State's taxing power. In accordance with this principle contained in the conventional norm, it is established that the cost of benefits must be distributed among the beneficiaries, employers, and the State (in a broad sense). This brings as a consequence that the beneficiaries should not bear the burden of administration and maintenance of pension systems alone, since for this, by international obligation, the universe of other stakeholders must be included, as an integrated system of more equitable relations within the population, which aims to prevent old age from implying an impoverishment of the population, which already, by the natural aging process, results in making the person more vulnerable socially and economically as they age.

In the cited Article 71, there are two regulations relevant to the case before us, which allow affirming that there is a double protection: one that seeks not to harm the most modest benefits of the system; and another, that of social and community solidarity, which leverages the system to prevent half of the burden of the economic and administrative cost from being placed solely on the beneficiaries, thus constituting a true international obligation of the State: to seek, administer, and correctly direct the benefits, providing income from contributions and taxes that allow a more equitable distribution of the other half of their costs. In this sense, the crux of the constitutionality problem before us lies in establishing whether that percentage has been illegitimately exceeded, and what must be taken into consideration: all deductions (cotizaciones) and tax contributions to which the retired person or pensioner would be subject, or only those intended for the pension fund.

In this sense, as a first point that must be examined, is the provisions that contemplate the contribution for active workers and retired persons and pensioners, established in Law No. 9380, as well as the special, solidarity, and redistributive contributions, and other taxes applied to salaries and pensions exceeding a certain number of base salaries of the public administration, in which case all apply to the excess amounts. Under examination is Law No. 9380, of July 29, 2016, called “PORCENTAJE DE COTIZACIÓN DE PENSIONADOS Y SERVIDORES ACTIVOS PARA LOS REGÍMENES ESPECIALES DE PENSIONES,” which states:

“ARTÍCULO ÚNICO.- Article 11 of Law No. 7302, Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, de Otros Regímenes Especiales y Reforma de la Ley N.° 7092, del 21 abril de 1988, y sus Reformas, Ley del Impuesto sobre la Renta, de 8 de julio de 1992, is amended. The text is as follows:

"Article 11.- […] In no case may the total deductions applied to all retired persons and pensioners covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%) with respect to the total gross amount of the pension that corresponds by right to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) with respect to the total gross amount of the pension, the special contribution shall be readjusted such that the sum equals fifty-five percent (55%) with respect to the total gross amount of the pension".” It is also worth transcribing a similar rule in Law No. 9383, of July 29, 2016, called “LEY MARCO DE CONTRIBUCIÓN ESPECIAL DE LOS REGÍMENES DE PENSIONES,” as it states:

“Article 3.- Special, solidarity, and redistributive contribution of retired persons […] In no case may the sum of the special, solidarity, and redistributive contribution and the total deductions applied to all retired persons and pensioners covered by this law represent more than fifty-five percent (55%) with respect to the total gross amount of the pension that corresponds by right to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) with respect to the total gross amount of the pension, the special contribution shall be readjusted such that the sum equals fifty-five percent (55%) with respect to the total gross amount of the pension.” In the Chamber's opinion, the regulation infringes the terms of paragraph 2 of Article 71 of ILO Convention No. 102 by establishing a limit greater than 50%, which implies a burden on certain “wage-earners” who receive a higher economic benefit, and the State's failure to formulate contributory proposals or taxes that do not exceed this amount. Although the legislator took care to establish a limitation of 55% with respect to the total gross amount of the pension, it exceeds by at least 5%. In accordance with the doctrine indicated above, this implies a violation of the hard core of the right to retirement or a pension, to the extent that retired persons and pensioners have seen their retirement or pension benefits reduced in proportions even greater than what is defined in International Labor Law, bearing beyond the limits established in the conventional norm (…)” (The emphasis is not part of the original).

Consequently, the operative part of the cited judgment 2020-19274—later corrected by interlocutory resolution No. 2020-19632, at 1:33 p.m. on October 9, 2020—recorded, regarding the point of interest, the following:

“Por tanto: By majority, the accumulated unconstitutionality actions are partially granted. Consequently, the contribution percentage and the special contribution established in Laws No. 9380 and No. 9383, both dated July 29, 2016, are annulled insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired or pensioned person. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in conformity with this judgment, so that the tax burden on the amount of retirement pay and pensions does not exceed 50% of the gross amount received by the retired or pensioned person (…)”.” The following year, specifically, through the aforementioned judgment 2021-11957, at 5:00 p.m. on May 25, 2021, this Chamber, based precisely on what is provided in the referred Judgment No. 2020-19274, analyzed what was stated in the previously cited Articles 236 and 236 bis of Law No. 9544 (Reforma a la Ley Orgánica del Poder Judicial), specifically, the indication contained therein that the sum of the special contribution and the rest of the deductions to be applied to the gross amount of the pension could not exceed 55%, and it also held its unconstitutionality. The foregoing, in the following terms:

“XLI. Drafted by Judge Araya García. A different response must be given to the case that some of the plaintiffs raise around this same issue, as they point to the constitutional invalidity of the norm contained in the final part of Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial as amended by the discussed Law, since—this time—they claim that a maximum limit of 55 percent on deductions with respect to the gross retirement amount is regulated, which they consider excessive and harmful to the fundamental right to retirement. On this specific subject, this Chamber had the opportunity to define its position in the recent judgment number 2020-19274 at 4:30 p.m. on October 7, 2020, in which its operative part stated: (…)

"By majority, the accumulated unconstitutionality actions are partially granted. Consequently, the contribution percentage and the special contribution established in Laws No. 9380 and No. 9383, both dated July 29, 2016, are annulled insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired or pensioned person. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in conformity with this judgment, so that the tax burden on the amount of retirement pay and pensions does not exceed 50% of the gross amount received by the retired or pensioned person. (…)

From the previous pronouncement, the majority of the Tribunal concludes that for Costa Rican Constitutional Law, it is not acceptable for the reduction of gross retirement amounts to exceed a maximum of 50 percent set in said judgment. From the foregoing, it is evident that Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial, amended by the challenged Law 9544, are unconstitutional, since both set 55 percent as the maximum limit on legal deductions, which exceeds by 5 percentage points the maximum established by this Tribunal in the cited judgment (…)

Consequently, the final part of Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial, as amended by the challenged Law, must be partially annulled, but only and exclusively regarding those 5 percentage points of excess over 50 percent set by this Chamber as the maximum limit for legal deductions on gross retirement or pension amounts (…)” (The emphasis is not part of the original).” In its operative part, this last judgment stated, in what matters, the following:

“Por Tanto: (…) Regarding the substantive grievances: The accumulated unconstitutionality actions are partially granted and consequently it is ordered:

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas and Hernández Gutiérrez), the contribution percentage and the special, solidarity, and redistributive contribution are annulled insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired or pensioned person. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber grades and dimensions the effects of this resolution, so that, from the month following the notification of the judgment, the competent authorities must make the corresponding adjustment in conformity with this judgment, such that the tax charges on the amount of retirement pay and pensions do not exceed 50% of the gross amount received by the retired or pensioned person. Judge Castillo Víquez gives different reasons. Judge Garro Vargas, for her own reasons, grants this aspect of the unconstitutionality action, ordering the partial annulment of the provisions in Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial; likewise, she warns that the unconstitutionality she declares affects the excesses of the special, solidarity contribution with respect to that 5% and not the rest of the deductions applied by law to all retired persons and pensioners of the Fondo de Jubilaciones y Pensiones del Poder Judicial. Judge Hernández Gutiérrez gives additional reasons. Judge Rueda Leal and Judge Hernández López dissent and declare this aspect without merit, as they did in judgment No. 2020-19274 at 4:30 p.m. on October 7, 2020, since, according to the express text of Article 67 of ILO C102 of 1952 Convenio sobre la Seguridad Social (norma mínima), the pension or retirement pay may be reduced as long as 40% of a reference salary is respected, which is not established as being automatically and evidently transgressed by the content of the challenged norms (…)”.” Finally, it should be noted that, more recently, through judgment number 2024-6250, at 4:30 p.m. on March 6, 2024—whose operative part was later corrected by interlocutory resolution No. 2024-7056, at 1:37 p.m. on March 13, 2024—this Chamber carried out the constitutionality review of the present Law No. 9796, but referred exclusively to the situation of the retired person from the Régimen del Magisterio Nacional. On this new occasion, also based on what was provided in the prior Judgment No. 2020-19274, this jurisdiction ordered to declare unconstitutional the cited Article 5 of that same regulatory body, regarding what corresponded solely to retired persons of the Magisterio Nacional system—given that this article specified deductions from the pension of up to 55%—according to the following terms:

“POR TANTO The accumulated unconstitutionality actions are partially granted. Consequently, the contribution percentage and the special contribution established in art. 5 of Law 9796 are annulled insofar as they exceed 50% of the gross amount of the pension that corresponds to the retired or pensioned person of the Régimen del Magisterio Nacional. However, in accordance with Article 91 of the Ley de la Jurisdicción Constitucional, to avoid serious disruptions to security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in conformity with this judgment, so that the tax burden on the amount of retirement pay and pensions does not exceed 50% of the gross amount received by the retired or pensioned person. Judge Castillo Víquez gives different reasons. Judge Cruz Castro gives additional reasons. Judge Garro Vargas records different reasons. In all other respects, the accumulated unconstitutionality actions are denied. Judge Garro Vargas records a note. Judge Rueda Leal dissents and declares the actions inadmissible, because the amparo appeals that served as prior cases were filed when the questioned law had not yet been applied to the protected parties; that is, they do not constitute reasonable means for the purposes of these constitutionality review processes. This ruling shall be communicated to the Legislative and Executive Branches, as well as to the Junta de Pensiones del Magisterio Nacional. This ruling shall be reported in the Diario Oficial La Gaceta and published in full in the Boletín Judicial. Notify.” Magistrate Salazar Alvarado records a note (…)”.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">In the present matter, as has already been stated, the claimants precisely question that reduction of up to 55% also applied </span><span style="font-family:'Times New Roman'; text-decoration:underline">to the amount of the pensions, but circumscribed to the situation of the retirees of the Judicial Branch (Poder Judicial)</span><span style="font-family:'Times New Roman'\">, which, as observed, is now established or permitted, based on what is also provided in the cited Article 5 of Ley 9796. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">Thus, in the opinion of this Court and, in accordance with what was indicated in the preceding background, it is feasible to indicate, preliminarily, that the pecuniary obligation to which the retirees </span><span style="font-family:'Times New Roman'; text-decoration:underline">of the Judicial Branch (Poder Judicial)</span><span style="font-family:'Times New Roman'\"> are subject —pursuant to the provisions of the cited Article 5 of the law under review— is indeed unconstitutional, </span><span style="font-family:'Times New Roman'; text-decoration:underline">as long as the amount to be deducted exceeds the aforementioned 50%</span><span style="font-family:'Times New Roman'\">. Thus, what is </span><span style="font-family:'Times New Roman'; text-decoration:underline">unconstitutional is that additional 5%</span><span style="font-family:'Times New Roman'\"> established in the norm under examination. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">Under this interpretation, the proper course, in the first instance, is to annul the contribution percentage and the special contribution established in Article 5 of Ley 9796 insofar as they exceed 50% of the gross pension amount corresponding to the person retired from the Judicial Branch (Poder Judicial) regime, in accordance with the arguments that, on this point, this Chamber has already sustained in the transcribed </span><span style="font-family:'Times New Roman'; font-style:italic">supra</span><span style="font-family:'Times New Roman'\"> precedents. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">X.- REGARDING THE PARTICULAR GRIEVANCES RAISED BY THE CLAIMANTS</span><span style="font-family:'Times New Roman'\">. It is now appropriate, in light of the considerations expressed above and the precedents of this Constitutional Court, to conduct a specific analysis of each of the grievances raised by the claimants. The foregoing, according to the following order of considerations:</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">A. Regarding the violation of the rights to retirement (jubilación) and to social security (seguridad social). </span><span style="font-family:'Times New Roman'\">The claimants state that the regulations in question—through which a deduction is imposed on the pension amount for a sum under the concept of a special solidarity contribution—violate the right to retirement (jubilación), as it is also part of the right to social security (seguridad social). </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><a name="_Hlk165017349"></a><span style="font-family:'Times New Roman'\">The interested parties maintain that, although such rights can be limited, said limitations must be imposed in accordance with the provisions of international provisions. They mention that Ley 9796 violates the provisions of international instruments that protect the fundamental right to retirement (jubilación), such as </span><a name="_Hlk165033131"></a><a name="_Hlk165281870"><span style="-aw-bookmark-end:_Hlk165033131"></span></a><span style="font-family:'Times New Roman'\">Article </span><a name="_Hlk165032520"></a><span style="font-family:'Times New Roman'\">25 of ILO Convention No. 102, Article 5 of ILO Convention No. 118, </span><a name="_Hlk165033111"></a><span style="font-family:'Times New Roman'\">Articles 22 and 25 of the Universal Declaration of Human Rights, and Article 16 of the American Declaration of the Rights and Duties of Man, which refer to the protection of benefits or insurance, mainly, for old-age (vejez). They also point out that the provisions of ILO Convention 102 are of special importance, which seeks the protection of workers as contributors to social security (seguridad social) regimes, such as pension funds; in particular, they refer to Article 29, point 1, subsection a), which indicates to whom the benefit indicated, in turn, in Article 28 of that same normative body must be guaranteed.</span><a name="_Hlk165017418"></a><span style="font-family:'Times New Roman'\"> Consequently, they consider that Article 7 of the Constitution has been violated, which establishes that public treaties, international conventions, and concordats (duly approved by the Legislative Assembly) have authority superior to laws. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'\">For the purpose of resolving this first grievance formulated, it is necessary to recall what was extensively explained by this Chamber in Consideration (Considerando) VIII of this judgment. From what is set forth there, it is reiterated, it is understood that the fundamental right to retirement (jubilación) indeed exists, as part of the fundamental right to social security (seguridad social); rights that, in turn, are not only enshrined and protected domestically, but also in several international instruments. Likewise, this Chamber has already emphatically explained that this </span><span style="font-family:'Times New Roman'; text-decoration:underline">right to a pension (pensión) and, in particular, the amount for that concept, is not absolute and, on the contrary, can be subject to reasonable limitations or restrictions</span><span style="font-family:'Times New Roman'\">, through the issuance of a formal law. Thus, within that type of limitations is the figure of the special, solidarity and redistributive contribution, which, as was also affirmed, can be validly imposed on the sector of retirees (jubilados). This jurisdiction, according to the precedents cited above, has held, then, that the special, solidarity and redistributive contribution must be understood as a constitutionally valid limitation on the right to retirement (jubilación).</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'\">Having said that, the claimants' main argument is that the regulations in question </span><span style="font-family:'Times New Roman'; text-decoration:underline">are contrary</span><span style="font-family:'Times New Roman'\"> to the provisions of the referenced international instruments, and therefore, from their perspective, a violation of the fundamental right to retirement (jubilación) occurs. However, it should be noted that from a reading of the content of the regulations challenged through this constitutionality proceeding, it is not possible to deduce, </span><span style="font-family:'Times New Roman'; font-style:italic">per se</span><span style="font-family:'Times New Roman'\"> and, at first glance, an arbitrary or evident contradiction with the norms contained in the international instruments to which the claimants refer. Nor do the interested parties—it should be noted—clearly explain how, from their perspective, this alleged clash occurs that would lead to the declaration of unconstitutionality of the norms under review. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">Note that Articles 22 and 25 of the Universal Declaration of Human Rights expressly state the following: </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; letter-spacing:-0.25pt; color:#454545">“Article 22. Everyone, as a member of society, </span><span style="font-family:'Times New Roman'; text-decoration:underline; letter-spacing:-0.25pt; color:#454545">has the right to social security (seguridad social)</span><span style="font-family:'Times New Roman'; letter-spacing:-0.25pt\">, and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; letter-spacing:-0.25pt; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; letter-spacing:-0.25pt\">“Article 25. 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and </span><span style="font-family:'Times New Roman'; text-decoration:underline; letter-spacing:-0.25pt\">the right to security in the event of</span><span style="font-family:'Times New Roman'; letter-spacing:-0.25pt\"> unemployment, sickness, disability, widowhood, </span><span style="font-family:'Times New Roman'; text-decoration:underline; letter-spacing:-0.25pt\">old age (vejez)</span><span style="font-family:'Times New Roman'; letter-spacing:-0.25pt\"> or other lack of livelihood in circumstances beyond his control.</span><br /><span style="font-family:'Times New Roman'; letter-spacing:-0.25pt\">2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">For its part, Article XVI of the American Declaration of the Rights and Duties of Man states that:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">“Every person has </span><span style="font-family:'Times New Roman'; text-decoration:underline\">the right to social security (seguridad social) which will protect him from the consequences</span><span style="font-family:'Times New Roman'\"> of unemployment, </span><span style="font-family:'Times New Roman'; text-decoration:underline\">old age (vejez)</span><span style="font-family:'Times New Roman'\">, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living.”</span></p><p style="margin-top:0pt; margin-right:30.8pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-right:2.45pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">Articles 25 and 29, point 1, subsection a), of Convention 102 of the International Labour Organization—Social Security (Minimum Standards) Convention—(which was ratified by Costa Rica) provide: </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">“Article 25. </span><span style="font-family:'Times New Roman'; color:#333333\">Every Member for which this Part of the Convention is in force shall secure to the persons protected the provision of </span><span style="font-family:'Times New Roman'; text-decoration:underline; color:#333333\">old-age benefit (prestaciones de vejez),</span><span style="font-family:'Times New Roman'; color:#333333\"> in accordance with the following Articles of this Part.”</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; color:#333333; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; color:#333333\">“Article 29, point 1, subsection a): </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; color:#333333\">1. The benefit specified in Article 28 shall be secured, in the contingency covered, at least:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; color:#333333\">(a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 30 years of contribution or employment, or 20 years of residence.”</span></p><p style="margin:0pt 30.8pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; font-style:italic; color:#333333; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-right:2.45pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">Finally, Article 5 of Convention 118 of the International Labour Organization—Equality of Treatment (Social Security) Convention—(which, it should be clarified, has not been ratified by our country), establishes the following: </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">“1. In addition to the provisions of Article 4, each Member which has accepted the obligations of this Convention in respect of one or more of the branches of social security (seguridad social) referred to in this paragraph shall secure, to its own nationals and to the nationals of any other Member which has accepted the obligations of the Convention in respect of the corresponding branch, when they are resident abroad, the provision of invalidity benefits, </span><span style="font-family:'Times New Roman'; text-decoration:underline\">old-age benefits (prestaciones de vejez)</span><span style="font-family:'Times New Roman'\">, survivors' benefits and death grants, and the provision of pensions in respect of employment injuries and occupational diseases, subject to measures for this purpose being taken, where necessary, in accordance with Article 8.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">2. Nevertheless, in the case of residence abroad, the provision of invalidity benefits, old-age benefits, and survivors' benefits of the type referred to in Article 2, paragraph 6 (a), may be made conditional on the participation of the Members concerned in schemes for the maintenance of rights as provided for in Article 7.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">3. The provisions of this Article shall not apply to benefits granted under transitional schemes.”</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 30.8pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-right:2.45pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">As can be deduced with crystal clarity, the transcribed </span><span style="font-family:'Times New Roman'; font-style:italic">supra</span><span style="font-family:'Times New Roman'\"> norms enshrine the right to old-age benefits (prestaciones por concepto de vejez) (pension or retirement), which does not appear to contradict what is provided regarding the right to retirement (jubilación), starting from the fact that, as has already been said, the latter can be subject to valid limitations, such as the imposition of a special solidarity contribution. In that sense, one could validly argue that the retirees of the Judicial Branch (Poder Judicial) are not being left without their old-age benefit (prestación por concepto de vejez) —which is precisely the right recognized in said international regulations— but rather, only, what is imposed on them, through Ley 9796, is a reduction to that amount, by virtue of the special solidarity contribution —and the consequent reduction of the exempt bases of the pension amounts so that the progressive tables of the solidarity contribution can be applied—. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">Notwithstanding the foregoing, it is also important to remember that this Chamber, based specifically on the provisions of the cited judgment 2020-19274, of 4:30 p.m. on October 7, 2020, was clear in mentioning that, </span><span style="font-family:'Times New Roman'; text-decoration:underline\">as long as —by reason of the special solidarity contribution— deductions exceeding 50% are imposed on the pension amount of retirees, a violation and flagrant breach of the hard core of the right to retirement (jubilación) would indeed be incurred</span><span style="font-family:'Times New Roman'\">. A conclusion that, as observed, was reached especially based on the provisions of Article 71, paragraph 2, of the cited ILO Convention 102.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">In the case under review, as explained in the previous consideration (considerando), it is understood that Article 5 of Ley 9796 establishes that deductions of up to 55% can be made from the pension amounts received by retirees of the Judicial Branch (Poder Judicial), </span><span style="font-family:'Times New Roman'; text-decoration:underline\">thus contravening the right to retirement (jubilación), as part, in turn, of the right to social security (seguridad social)</span><span style="font-family:'Times New Roman'\">, as well as the provisions of the referenced international instrument. This same stance, that is, regarding the violation of the right to retirement (jubilación) and the right to social security (seguridad social), it is worth mentioning, was also sustained by this jurisdiction just a few months ago, when examining the constitutionality of Ley 9796 (with respect to retirees of the National Teachers' Union (Magisterio Nacional)), through Judgment No. 2024-6250 of 4:30 p.m. on March 6, 2024. On that last occasion, it was held that, indeed, that remaining 5% deducted from the pension of the retirees of that specific regime was harmful to the fundamental rights to social security (seguridad social) and retirement (jubilación). </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'\">In addition to the foregoing, it is worth noting that in the referenced judgment 2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber also ruled, in light of the provisions of international regulations, on those </span><span style="font-family:'Times New Roman'; text-decoration:underline\">old-age benefits (prestaciones por concepto de vejez)</span><span style="font-family:'Times New Roman'\"> to which the claimants refer, and concluded the following: </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">“</span><span style="font-family:'Times New Roman'; font-weight:bold\">XI.- Regarding the international protection of the elderly (adulto mayor).</span><span style="font-family:'Times New Roman'\"> In other points of the claimants' briefs, the violation of various human rights instruments is alleged, to argue that Articles 1, 2, 3, and 4 of Ley No. 9383 and the sole article of Ley No. 9380 undermine the social security (seguridad social) safety net in favor of the elderly (adulto mayor), and produce economic vulnerability due to an abrupt decrease in income. (…) </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">But, in another facet of the discussion, it is true that there is an infringement of the Inter-American Convention on the Protection of the Human Rights of Older Persons, according to the line that has been followed in this judgment. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">“Article 1.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">Scope of application and object.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">The object of the Convention is to promote, protect and ensure the recognition and the full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of the older person, in order to contribute to his/her full inclusion, integration and participation in society. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">The provisions of this Convention shall not be interpreted as a limitation on broader or additional rights or benefits recognized by international law or the domestic legislations of the States Parties, in favor of the older person. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">If the exercise of the rights and freedoms mentioned in this Convention is not already guaranteed by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional procedures and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to such rights and freedoms. </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'\">The States Parties may only establish restrictions and limitations to the enjoyment and exercise of the rights established in this Convention through laws enacted for the purpose of preserving the general welfare within a democratic society, to the extent that they do not contradict the purpose and reason underlying them.</span></p> </span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">The provisions of this Convention shall apply to all parts of federal States without limitations or exceptions.”</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="width:7.65pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">On the other hand, Article 4 of the Convention at issue establishes the following:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“Article 4.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">States Parties undertake to safeguard the human rights and fundamental freedoms of older persons set forth in this Convention, without discrimination of any kind, and to that end:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">a) …</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">[…]</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">d) They shall adopt the necessary measures, and when they consider it within the framework of international cooperation, up to the maximum of available resources and taking into account their degree of development, in order to achieve progressively, and in accordance with domestic legislation, the full effectiveness of economic, social, and cultural rights; without prejudice to obligations that are immediately applicable under international law.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">[…]”.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="width:7.65pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">Similarly, to link the foregoing, it is relevant to the basis of this judgment that the Convention also establishes that:</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="width:7.65pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">“Article 17.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Right to Social Security.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Every older person has the right to social security to protect them from leading a dignified life.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">States Parties shall progressively promote, within available resources, that the person receive an income for a dignified life through social security systems and other flexible social protection mechanisms.</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">[…]</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">All provisions of this article shall be in accordance with national legislation.”</span></p><p style="margin:0pt 42.4pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">From these norms, it is clear that </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">the non-compliance with Convention No. 102 of the International Labour Organization, ratified by Law No. 4736 of March 29, 1971, results in the violation of the right to social security contained in the Inter-American Convention</span><span style="font-family:'Times New Roman'">, when the petitioners precisely allege that </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">Article 25 of the aforementioned Convention No. 102</span><span style="font-family:'Times New Roman'"> establishes that “Every Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part”; </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">to that extent, this Court is recognizing that a cap exists in favor of “employees,” as explained supra, and deserves the protection established by the Inter-American Convention on the Human Rights of Older Persons.</span><span style="font-family:'Times New Roman'"> Thus, if this Convention guarantees the full effectiveness of economic, social, and cultural rights, within which social security is found, it could not be sustained that the legislature legitimately permits the application of tax levies up to a 5% excess of the applicable limit, </span><span style="font-family:'Times New Roman'; font-weight:bold; text-decoration:underline">since it is openly regressive for the human rights of the beneficiaries, in itself unconventional, for being contrary to the Inter-American Convention, as well as Convention No. 102 of the International Labour Organization</span><span style="font-family:'Times New Roman'">. In this sense, the conclusion must be reached that the provisions allowing deductions above 50% of the gross amount of the pension are unreasonable, disproportionate, and unconventional, and that must also be declared on this occasion (…)” (The emphasis does not form part of the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'">By virtue of the considerations set forth, what is appropriate is to uphold this aspect of the present acción de inconstitucionalidad.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">B. Regarding the confiscatory nature of the pension amount</span><span style="font-family:'Times New Roman'; text-transform:uppercase">.</span><span style="font-family:'Times New Roman'"> The petitioners maintain that the total amount deducted from Judicial Branch retirees from their pension—nearly 70%, reduced to 55% by virtue of the contested regulations—becomes confiscatory and, therefore, unconstitutional, for violating the provisions of constitutional article 40. They argue that the contribution imposed on this sector is inconceivable and unsustainable. </span><span style="font-family:'Times New Roman'">They indicate that the principle of non-confiscation constitutes a limit on the exercise of tax power, linked to the principles of ability to pay and progressivity; in addition to representing a mechanism for protecting the right to private property.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'">In this regard, it should be noted that this Constitutional Chamber has held that, </span><span style="font-family:'Times New Roman'; text-decoration:underline">to the extent that the amounts to be deducted from the pension (including that concerning the solidary contribution) exceed the aforementioned 50%, one is indeed facing an arbitrary confiscation.</span><span style="font-family:'Times New Roman'"> Note that in the aforementioned judgment No. </span><span style="font-family:'Times New Roman'">2020-19274, of 4:30 p.m. on October 7, 2020, this Chamber extensively explained the following:</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0;</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“</span><span style="font-family:'Times New Roman'; font-weight:bold">X.- Regarding the allegation of non-confiscation alleged in the actions</span><span style="font-family:'Times New Roman'">. The principle of non-confiscation is not expressly established in the Political Constitution, but it must be implicitly derived from the relationship of Articles 18, 45, and 50 of the Magna Carta, as a limit on the State’s taxing power. The Chamber, in delimiting the principle of non-confiscation, has established its intrinsic relationship with certain fundamental rights, but preferentially with the right to property, especially when dealing with both material and immaterial rights. Thus, in Judgment No. 1993-05749 of 2:33 p.m. on November 9, 1993, this Chamber established:</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">“The state may take a proportional part of the income generated by the individual, to cover its expenses, but always provided that it does not nullify the property as such, as would be the case if the tax totally absorbed the income. If the Constitution protects the right of property to the integral patrimony, it cannot recognize and admit that other provisions destroy it. Thus, to be constitutional, taxes must not denaturalize other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposition, and prohibits confiscation, therefore a taxation measure that goes beyond what is reasonable and proportionate cannot be permitted. The tax is a means of economic policy, which must be harmonized with public spending and the economic situation, and its limit is the taxpayer’s ability to pay. The ordering of taxes must be based on the principles of generality and equitable distribution of public burdens. The application of the principle of equality refers to the proportionality of taxes, with unequal quotas necessary to produce equal sacrifices, so that relative equality exists regarding the ability to pay, that is, the economic capacity of the subject who must pay must be considered. If the Constitution in Article 45 establishes that property is inviolable, and in Article 40 that no one shall be subjected to the penalty of confiscation, it is unquestionable that the tax cannot be such as to render such guarantees illusory. What we must understand by 'substantial part of the property or income' is something that cannot be established in an absolute manner; the component of discretion or reasonableness must be assessed in each specific case, circumstantially, according to factual needs, the demands of time and place, and the economic-social purpose of each tax. But it can be established as a principle that a levy is considered confiscatory if it exceeds the taxpayer’s economic or financial capacity, or if the tax absorbs a substantial part of the taxed transaction, and it will be for the Judge, in each case, to analyze these circumstances, which will, logically, be variable, and the correct approach is to analyze those situations concretely.”</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Likewise, that doctrine is repeated in other judgments of this Chamber, in which it has defined the principle of confiscation; for example, in No. 1995-554, of 4:45 p.m. on January 31, 1995—reiterated by the cited Judgment No. 2003-5276, of 2:54 p.m. on June 18, 2003—among others. From the foregoing, the premise is clear that taxes must not denaturalize other fundamental rights, especially when the Political Constitution establishes the inviolability of private property, as well as its free use and disposition, and the prohibition of confiscation. This latter prohibition must be understood as the impossibility of dispossessing a person, by means of a disproportionate penalty or exaction, of all or a substantial part of their assets, for violating a legal duty or through taxes, to transfer them to the property of the State without any compensation. It must be affirmed that it corresponds to this Chamber to determine, regarding this principle, whether the contested regulations have confiscatory scope, understanding the foregoing to mean that the taxing power exceeds itself by levying a portion of the property (or of a right) of the taxpayer that would be protected as a fundamental right.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">It should be noted that the issue involves an exercise of balancing public powers and fundamental rights, the intensity of the exercise of taxing power over property, since it would have the principle of non-confiscation as its limit. In this sense, progressivity in taxes finds its basis in the need to address the principles of ability to pay and non-confiscation. What might be confiscatory for some might not be for another, clearly according to their ability to pay. Tax justice must have a close link with the principle of reasonableness and proportionality, especially in the matter at hand, where the maxim must be fulfilled that we must all contribute to public expenses, but in accordance with the possibilities of each taxpayer. While it must rightly be affirmed that the tax obligation should not exhaust the capacity to generate income and property, it is also imperative to reaffirm that taxes cannot absorb a part of social security benefits, especially when these are covered by international law, even if, as an economic benefit from the State, they have not entered (or should have entered) the individual’s patrimony. In that sense, it must be recognized that the monetary benefit received by the pensioner is susceptible to being taxed; there is a limit—as indicated supra—on the amount. Thus, as the petitioners affirm based on the principle of non-confiscation, taxes cannot be permitted to absorb what they argue is the property of individuals, and which the Chamber understands as the economic benefit received derived from the right to a pension, and which allows concluding that the money that has effectively entered the individual sphere of the beneficiary would be private property that could not be retroactively reached by the contested regulations. </span><span style=\"font-family:'Times New Roman'; font-weight:bold; text-decoration:underline\">However, the problem lies in the deduction that, in excess (at least up to 5%), has been made from the economic benefit that the State should not have made, which by right corresponds to the pensioners and retirees, especially if that part has been recognized as their right to a pension. In this, we refer to the 5% excess, over all the taxes that the pensioner or retiree must pay.</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Now, concretely, the problem of constitutional relevance lies in the fact that with the special, solidary, and redistributive contribution, it is noted that this is done with staggered deductions made from a gross amount, which then return to the single state treasury (in accordance with Article 4 of Law No. 9383, to finance the pension regime and the non-contributory regime of the C.C.S.S.). </span><span style=\"font-family:'Times New Roman'; font-weight:bold; text-decoration:underline\">Added to that is the contribution percentage of pensioners, retirees, and active public servants, which is made in accordance with the norm, gradually and proportionally according to the salary or pension amounts involved (from 9% to 16%), according to paragraph 2 of Article 11 of Law No. 7302, reformed by Law No. 9380. And as previously indicated, these reductions include other taxes, such as the income tax that levies the gross amount</span><span style="font-family:'Times New Roman'">. That is, in those cases where the regulations under analysis apply, it clearly produces the effect of stripping the pensioner of the economic benefit, by means of an exaction that affects a part of their income (up to at least 5%), through the application of taxes to transfer them to the property of the State without any compensation. </span><span style=\"font-family:'Times New Roman'; font-weight:bold; text-decoration:underline\">This Court recognizes that the impact this has on the economic position of the older adult, especially from one moment to the next, is not something easy to assimilate, particularly when the accustomed economic income is abruptly reduced by more than 55%, all of which produces a considerable regression in the economic situation of the older adult. It has been alleged that those deductions contravene a margin of dignity and adequacy of the older adult in old age, and that for what was stated supra, the scrutiny of these norms must conclude that by failing to comply with Convention No. 102 of the International Labour Organization, it fails in the duty to provide a full amount of the pension.</span><span style="font-family:'Times New Roman'; text-decoration:underline\"> </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">There is no doubt for this Court, as stated above, that when the State requires taxpayers to pay taxes, this requirement must meet certain standards. In this sense, as previously discussed, these would be international parameters legally binding on the Costa Rican State, which it cannot ignore or attempt to annul, if there is a superior norm that offers greater protection, especially in favor of the human person. With this provision, the State has first recognized the right to a pension of the petitioners in accordance with the legal system it promulgates, in which case they have the right to receive an economic benefit as holders of the right, that is, a benefit amount without discrimination as corresponds to them. Likewise, that amount would be subject to certain conditions that the regulatory framework must comply with, for which it would be unlawful for the State to deviate from them.</span></p><p style="margin:0pt 42.6pt 0pt 28.4pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">The Chamber understands, from the filing brief of petitioners Ramos Valverde and Pacheco Salazar, as well as coadjuvants Vargas Aguilar and others, that it is the special contribution itself that is challenged, the confiscatory impact on that income that diminishes the dignity or adequacy of the economic benefits. On this point, according to official data, it is important to bring up the comparison of economic benefits offered between national regimes, insofar as the Hacienda pension regime is compared with other regimes, some without and others with a contribution fund. Furthermore, the Ministry of Labor and Social Security, as well as the National Director of Pensions, attempt to demonstrate, based on the table transcribed below, that significant differences exist between the non-contributory regime, the basic contributory pension regime (both administered by the Caja Costarricense de Seguro Social), and the pay-as-you-go regime or pensions based on the national budget, which remains better positioned comparatively.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">The foregoing without forgetting that it depends 90% on the National Budget. This is evidenced as follows (visible in the report at folios 3795-3814 of the docket):</span></p><p style="margin:0pt 42.6pt 0pt 28.4pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><table cellspacing="0" cellpadding="0" style="width:475.65pt; border:0.75pt solid #000000; -aw-border:0.5pt single; border-collapse:collapse"><tr><td style="width:244.4pt; border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; -aw-border-bottom:0.5pt single; -aw-border-right:0.5pt single"><p style="margin-top:0pt; margin-right:117.15pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">Non-Contributory Regime (Single monthly amount)</span></p></td><td style="width:208.9pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; -aw-border-bottom:0.5pt single; -aw-border-left:0.5pt single"><p style="margin-top:0pt; margin-right:42.55pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">IVM Regime</span></p><p style="margin-top:0pt; margin-right:42.55pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">(Maximum monthly amount)</span></p></td></tr><tr><td style="width:244.4pt; border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; -aw-border-right:0.5pt single; -aw-border-top:0.5pt single"><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">₡78,000.00</span></p></td><td style="width:208.9pt; border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; -aw-border-left:0.5pt single; -aw-border-top:0.5pt single"><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">₡1,527,477.00</span></p></td></tr></table><p style="margin:0pt 42.6pt 0pt 28.4pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.6pt 0pt 28.4pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.6pt 0pt 28.4pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin:0pt 42.6pt 0pt 28.4pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">*Average pension amount taking into consideration the 18,700 persons who would not be subject to the special solidary and redistributive contribution.</span></p><p style="margin:0pt 42.6pt 0pt 28.4pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">It is observed from the foregoing, that despite establishing a comparison between a basic regime such as that of the Caja Costarricense de Seguro Social, regarding the pension amount that would be taken as an example, of petitioner Ramos Valverde from the Hacienda Regime modified by the contested legislation, the amounts received still show a better economic position by more than 2.3 times.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span><span style="font-family:'Times New Roman'">However, the authorities compare it with the Regime of the Caja Costarricense de Seguro Social, thereby comparing different systems, one where there is a constituted fund, with its respective contribution mechanisms, fund investments, and reserves, which is not under examination, but evidently, it is not the same as the “pure” pay-as-you-go based on the National Budget, as the petitioners rightly argue and the authorities explain. Even though the authorities demonstrate that in the Hacienda Regime the economic benefit for the pensioner is better, it is a system that operates without a formally constituted fund, which compared to one protected under the basic national scheme supported by the Caja Costarricense de Seguro Social and other substitute schemes, that argument leaves aside an aspect of real relevance such as the level of salary contributions made into the system for a fund, an investment portfolio, as occurs with others, such as that of the National Teaching Profession, the Judicial Branch, among others, which is not being taken into account.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">On the other hand, it is illustrated that within the same Hacienda Regime, higher pensions improve the average of those that would not exceed the contributory base of the contested norm, whose average amount of ₡464,641.20 would still be exceeded by 7.55 times. The comparison uses as referents a universe of pensioners (18,700) below the ten reference salaries against an individual referent, a comparison that aims to demonstrate the State’s reaction, which must be analyzed in greater depth. Precisely, a special, solidary, and redistributive contribution of pensioners and retirees is designed, to produce a significant decrease in income for a small group of retirees, motivated by a context of significant contraction of the national economy, which demanded the review of the pension system and the need to delimit certain pensions. But the foregoing, it is alleged, affects the accustomed economic benefit that had been received by pensioners and retirees, for which it needs to be demonstrated that there exists a reasonable and proportional justification over the totality of the economic benefit intended to be affected, despite the fact that through that legislation an income is reduced above the limits established in the standards that the country itself committed to under Convention No. 102 of the International Labour Organization.</span></p><p style="margin:0pt 42.55pt 0pt 28.35pt; text-align:justify; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'">What must be analyzed from the regulations is the reasonableness of the percentages and the effect they have, especially because the value of the pension falls on the gross item, which means that various coercive exactions operate on the pension, which would exceed the total permissible costs of levying, and it must be questioned whether the violation of the principle of non-confiscation occurs insofar as it is contrary to the right established in the Convention, in that it exceeds 50%. In that sense, it would be necessary to determine if in the application, due to the consequences or effects, there would be an unconstitutionality in the technical reasonableness and proportionality. The Chamber considers that all of the foregoing produces a significant reduction of that net part of the benefit, after applying the percentages of the corresponding contributions and the amounts of the contribution they must pay. But, with these other corresponding payments, as this Chamber established supra, all taxes considered together cannot exceed 50%, such as taxes, rates, contributions, quotas, income taxes, and legal deductions, because that would not only violate the principle of community solidarity but also the constitutional principles of reasonableness and proportionality; in addition, as a parameter, the violation of paragraph 2 of Article 71 of Convention No. 102 of the International Labour Organization.</span></p> Regarding the requirement to pay more in taxes, it must be noted that the design of the challenged provisions is based on a fixed parameter composed of ten times the lowest base salary paid in the Public Administration, according to the salary scale for the Public Administration issued by the Dirección General de Servicio Civil. That is, there is an exempt minimum quantified by the legislation, which expands as the established base salary decreases. If the gross amount of the pensioner exceeds that sum, the law orders the application of a staggered and progressive levy contained in the provision.

Thus, Article 3 of Law No. 9383 establishes the following:

“a) On the excess over the amount resulting from ten times the lowest base salary paid in the Public Administration, according to the salary scale for the Public Administration issued by the Dirección General de Servicio Civil, and up to twenty-five percent (25%) of said sum, they shall contribute twenty-five percent (25%) of such excess. b) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute thirty-five percent (35%) of such excess. c) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty-five percent (55%) of such excess. e) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute sixty-five percent (65%). f) On the excess over the previous margin, they shall contribute seventy-five percent (75%).” As can be seen, the provision contemplates a cumulative and progressive contribution where the total tax will depend on the amount of the pension that exceeds the different brackets established by the provision (which would maintain a relationship with contributory capacity). As stated supra, the base parameter for this imposition is set at the amount composed of the ten (10) base salaries, subsequently increased by 25%, to ultimately tax the differences between pensions that fall within the base parameter and the higher one. In this way, it proceeds in accordance with the gross amount of the respective interested party's pension, and it will depend on whether the sum falls within a bracket, and if it exceeds it, it falls into another levy. Thus, 25%, 35%, 45%, 55%, 65%, and 75% would apply, respectively, according to each bracket with respect to the differences.

The importance of the preceding explanation is because the provision taxes an excess of the ten minimum salaries indicated supra, increasing the tax obligation of the levy as the pension amount exceeds the previously defined excess, which means that the higher the amount received, the greater the contributory obligation. The problem with the provision has to do with the cumulative and increased effect it has with this and other taxes of a similar nature (which tax gross income), given that the challenged provision concludes that in no case may the special, solidary, and redistributive contribution and all deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross pension amount rightfully belonging to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross pension amount.” In this way, it establishes a total levy of up to fifty-five percent (55%), which would be exceeding what is permitted in subparagraph 2) of Article 71 of the International Labour Organization Convention, which sets the establishment of pension costs at 50%, with the help of taxes and contributions from the community considered in its entirety, not only from workers and pensioners and retirees. This implies that the taxpayer, in this case, the pensioner, would be contributing even more taxes along with the income tax, which would imply higher costs and deductions in their case, including a greater sacrifice demanded by society.

Based on the foregoing, the majority of this Chamber deems that the action must be granted on this point, as will be stated in the operative part of the judgment (…)” (The highlighting is not part of the original).

For its part, in judgment No. 2021-11957, at 5:00 p.m. on May 25, 2021—issued, as has been repeatedly stated, regarding what is consigned, among others, in Articles 236 and 236 bis of Law No. 9544—this Chamber, after citing the prior vote No. 2020-19274 (concerning the allegation of confiscation), stated that the burden then imposed on the pensioners of the Judicial Branch “(…) only becomes confiscatory insofar as it exceeds 50% of the charges a person must bear on their pension or retirement (…).” Additionally, in the recent Judgment No. 2024-6250 at 4:30 p.m. on March 6, 2024, this Chamber reconfirmed its position on this particular point and, when referring to the content of section 5 of Law No. 9796 under study—specifically, with regard to the retirees of the National Teachers' Regime (Régimen del Magisterio Nacional)—held that although the very act of contributing the items in question could not be labeled unconstitutional (given that higher economic benefits were taxed in a staggered manner in accordance with contributory capacity), the truth was that, according to the Chamber's precedents, that same contribution had a limit of 50%, and therefore, that remaining 5% did become confiscatory.

Thus, based on what has been analyzed in this action of unconstitutionality regarding the specific case of the pensioners of the Judicial Branch Regime (Régimen del Poder Judicial), this Chamber concludes that the additional 5% percentage with which they must contribute, pursuant to the provisions of Law No. 9796, is indeed confiscatory and, consequently, violates their fundamental rights.

C. Regarding the claim of double taxation for the same purpose. Coupled with the previous grievance, the petitioners argue that the pension amount of Judicial Branch retirees suffers a double levy, which is improper, given that, in addition to the solidarity contribution, deductions are applied for other concepts, such as the 13% mandatory contribution to the regime and the income tax. They claim that a double tax rate is applied “on the same benefit.” This Chamber, in judgment No. 2021-11957, at 5:00 p.m. on May 25, 2021, settled this disagreement of the petitioners by conducting an analysis—pursuant to what was established in Law No. 9544—of section 236 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), where the deduction from the pension amount of 13% is contemplated, and what was concurrently established in Article 236 bis of that same organic law—regarding the deduction for the special solidarity contribution. The content and purposes of these provisions, with respect to this specific point and grievance, did not undergo a change when the now-challenged Law No. 9796 was issued. Hence, the reasoning set forth on that occasion by this Constitutional Chamber can be newly and validly used to resolve this part of the present action of unconstitutionality. On that occasion, this jurisdiction stated the following:

“XLVII. Drafted by Justice Hernández López. The special, solidary, and redistributive contribution and the claim of double taxation for the same purpose.- The petitioners argue that the special, solidary, and redistributive contribution created for the Benefit of the Judicial Branch Retirement and Pension Fund implies for the judicial employee, but also for the judicial retiree or pensioner, a double taxation because, in addition to being obligated to continue contributing 13% of their income to the fund, they are now also obligated to contribute between 35% and 55%, which they deem unconstitutional. The Procuraduría General de la República considers that there is no double taxation in this case, since a distinction must be made between the contribution to the fund imposed on all beneficiaries of the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial), and the so-called special, solidary, and redistributive contribution that is imposed only on retirees and pensioners who receive economic benefits exceeding the established cap of ten times the base salary of the lowest position paid in the Judicial Branch; a contribution that is also proportional and progressive, and has a nature distinct from that of the contribution, and therefore it is not considered contrary to the Political Constitution. (…) For the Tribunal, the figure of the special, solidary, and redistributive contribution is not constitutionally configured as a double taxation, because in its original design (prior to the reform effected by Law No. 9796) it serves a purpose separate from that pursued by the general contribution imposed on all beneficiaries of the Judicial Branch Retirement and Pension Regime to achieve its sustainability and normal functioning. Unlike this general contribution, the Tribunal is clear that the cited provision 236 bis sought to tax the excess sums beyond the maximum retirement or pension cap to be paid by the regime, set by Article 225 of the Organic Law of the Judicial Branch at 10 times the base salary of the lowest position paid in the Judicial Branch, on the understanding that such excesses occurred in a finite and determinable group of retirements and pensions granted according to the rules of the prior regime (whether in the course of payment or those declared but suspended in their enjoyment) and therefore clearly temporary in their application and not supportable with the contribution scheme established for the new design. Thus, the levy constituted in the questioned Article 236 bis to tax the excesses was required, but not to contribute to the sustainability of the normal budgeted expenditures in the new regime, but rather to avoid the imbalance caused by the legal duty of the Fund to attend to certain expenditures inherited from the prior regime and exorbitant to the new design. Under this criterion, there is therefore no double taxation from the constitutional perspective, since the purpose of the two levies is clearly differentiated, with the 13 percent contribution being a permanent charge intended to financially sustain the fund and ensure its benefits, while the special and solidary contribution of Article 236 bis is specific and temporary in its own conception (at least before the reform effected by Law 9796) and was aimed at mitigating the economic impact of assuming the burden of the retirements and pensions from the prior regime, both those in the course of payment and those already declared at the time but pending their effective enjoyment by the beneficiaries. (…)

In the case under study, the imposed burden has—as has been analyzed—a valid purpose, is aimed at taxing undeniable economic capacity, and is progressive in its design. Moreover, it only becomes confiscatory insofar as it exceeds 50% of the charges a person must bear on their pension or retirement, as explained supra.

In conclusion, the Tribunal deems that Article 236 bis of the Organic Law of the Judicial Branch does not configure a case of constitutionally prohibited double taxation (…)” (The highlighting is not part of the original).

The foregoing state of affairs did not vary, in the opinion of this Chamber, with the issuance of Law No. 9796—and it is understood that the warnings consigned in the transcribed vote regarding the promulgation of this latter regulation were issued only in terms of clarification for the reader—; hence, the transcribed precedent is fully applicable to this matter.

In addition to the foregoing, it is pertinent to note that in the recent judgment No. 2024-6250, at 4:30 p.m. on March 6, 2024, this Chamber also dismissed that, through Law No. 9796—and its specific imposition, in that case, on pensioners of the National Teachers' Regime—the solidarity contribution represented anything more than double taxation. On this occasion, the Chamber explained that the act of contributing to the fund, collaborating with the solidarity contribution, and, in turn, paying the income tax—which, specifically, is what the petitioners in this proceeding point out—was not, in itself, injurious to the Right under the Constitution, and it was clarified that this triple payment had already been endorsed by this Chamber—judgments 1999-5236 and 2001-2235. Furthermore, in this recent judgment, it was stated that these three contributions were not exclusive to the Transitional Pay-as-you-go Regime (Régimen Transitorio de Reparto), since the rest of the special pension regimes had similar charges, according to their characteristics and special regulatory criteria.

Thus, having dismissed the unconstitutionality, in this case, of double or even triple taxation to the detriment of Judicial Branch retirees—specifically those whose pension amount exceeds six base salaries of the lowest position paid in said institution—this part of the action must likewise be rejected.

D. Regarding the alleged violation of the principle of non-retroactivity to the detriment and consequently the principle of legal certainty. The petitioners also allege that the provisions of Law No. 9796 violate the acquired rights of all those judicial officials who contributed and were granted pensions under the guidelines issued by the Pension Fund of the Organic Law of the Judicial Branch. Therefore, they state that “those rights must continue as they were granted before the promulgation of the law; otherwise, legally granted rights would be violated.” They indicate that pensions already granted translate into acquired rights, and that, by imposition of the law, pensioners are being steered toward lower income levels. They point out that the studies conducted did not indicate that the established charge would be retroactive, but rather, only prospective. They finally maintain that, from the moment one enters the retirement regime, the worker is protected (not only by the legal and regulatory rules and criteria of the regime itself), but also by the constitutional norms and principles that enshrine the right to retirement, such as, for example, what is established in Article 34 of the Constitution. Consistent with the foregoing, the petitioners consider that the principle of legal certainty is violated, because the variations imposed by the law breach the trust and security of judicial officials.

Now, regarding this particular grievance, it is opportune to point out that this constitutional body has likewise already issued its opinion, when referring, as has been repeatedly stated in this judgment, to other similar cases to the one now under study. Thus, it should be noted that in judgment No. 2020-19274, at 4:30 p.m. on October 7, 2020, this Chamber extensively and forcefully explained the reasons why the imposition of the solidarity contribution did not properly breach the provisions of Article 34 of the Magna Carta, i.e., the principle of non-retroactivity of the law. On that occasion, it was expressly indicated:

“XIII.- On the allegation of non-retroactivity of the reforms. In this sense, it should be noted that the jurisprudence of the Chamber, in a matter related to the issue at hand, settled this without affecting the undoubted power of the legislator to modify or reform laws. The discussion raised by the petitioners precisely lies in which legislative measures can be applied to pensioners and retirees as of the legal reform effected by the challenged provisions.

Thus, the Chamber established, in Judgment No. 2018-19030 at 5:15 p.m. on November 14, 2018, that:

“XI.- On the alleged violation of the principle of non-retroactivity. The petitioner alleges injury to the principle of non-retroactivity protected in Article 34 of the Political Constitution, because the questioned provisions intend to apply their effects—Law No. 7858—to pensions, without distinguishing the date on which they were granted. Now, before proceeding to analyze the merits of said claim, it is appropriate to allude to what has been expressed by this Chamber regarding the application of the principle of non-retroactivity to pensions. In this regard, in judgments No. 2379-96 at 11:06 a.m. on May 17, 1996, and No. 2765-97 at 3:03 p.m. on May 20, 1997, cited above, the following was established, insofar as relevant:

“XI.- ON THE VIOLATION OF THE PRINCIPLE OF NON-RETROACTIVITY. The relationship between the fundamental right to retirement and Article 34 of the Constitution has been delineated by the Chamber, which has expressed that the former takes on a different appearance and denomination depending on whether the official meets certain conditions, which normally occur over time. Thus, the right to retirement manifests itself first under the name and form of 'right of membership in the regime' from the official's entry into the system until the event consisting of the fulfillment of the requirements necessary for obtaining the benefit occurs. Then, it sheds that guise to be called 'right to the actual benefit,' once that indicated event has occurred (cf. Resolution 1147-90 at twelve o'clock on September twenty-first, nineteen ninety). With the foregoing, two things are emphasized: a) that throughout the entire time, the fundamental right to retirement is and has always been one and the same, and does not change in its essential characteristics, which remain an integral part of its composition despite the different modalities it may present externally; b) that it is this nucleus, without the accidents added to it at the moment of its realization and simply called the constitutional right to retirement, which the Chamber recognizes as the petitioner's acquired right. Now, if, as stated in the second considerando of this judgment, we accept that one of the essential characteristics of the right to retirement is the possibility of being limited or conditioned in the terms explained therein, it can be concluded that the inclusion of the right to retirement in the body of rights acquired by the petitioner also included—as a legal possibility—the faculty for the exercise of limitations or conditions upon said right, because such faculty to be exercised by the State forms an inherent part of its own structure and composition.

In other terms, the fact that the claimant is recognized as having an acquired right to retirement from the moment of entry into the regime cannot imply a disappearance of the attributes and conditions that form an intrinsic part of it—including of course those that may be restrictive for the beneficiary—so that all of these characteristics survive as an indeterminate set of presumed or implicit clauses, which are embedded within any regime or system for the realization of the right to retirement and which, for that very reason, are potentially applicable to the claimant at any time and for as long as they belong to the regime.</span><span style=\"font-family:'Times New Roman'\">&#xa0;</span><span style=\"font-family:'Times New Roman'\">And they could not rely on Article 34 of the Political Constitution to oppose its application, given that this is not a new regulation but the effective exercise of an implicit power of variation existing from the moment of entry into the regime.” “In both cases (acquired right or consolidated legal situation), the legal system protects—rendering it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty. In this case, the constitutional guarantee of the non-retroactivity of the law translates into the certainty that a change in the legal system cannot have the consequence of removing the asset or the right already acquired from the person’s patrimony, or of causing that, if the factual presupposition had occurred prior to the legal reform, the (favorable, it is understood) consequence that the interested party expected from the consolidated legal situation no longer arises. Now, specifically regarding the latter, it has also been understood that no one has a ‘right to the immutability of the legal system,’ that is, that the rules never change. Therefore, the constitutional precept does not consist in that, once born into legal life, the rule that connects the fact with the effect cannot be modified or even suppressed by a later norm; what it means is that—as explained—if the conditioning assumption has been produced, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the prior norm from arising. This is so because, it has been said, what is relevant is that the state of affairs the person enjoyed was already defined in terms of its elements and its effects, even if these effects are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule.

Application to the specific case. In the sub examine, it is viable to exemplify the foregoing concepts precisely from the elements of the specific case. Under the rule of Articles 167 to 169 of the Civil Service Statute, a legal rule existed, created by the legislator: in the presence of a disabling illness (conditioning fact), the male or female teacher suffering from it would have the right to a leave of absence and the payment of financial assistance equivalent to the full salary, for the entire period of the disability—which could even be indefinite—although subject to annual revalidations, upon prior medical certification (conditioned effect). This rule disappeared by virtue of the repeal of those norms carried out by Law No. 7531, which also ordered that, within the non-extendable period of six months from its entry into force, the beneficiaries of the leaves of absence must opt for a disability pension or return to work. Thus, exemplifying—and, at the same time, applying—the evidentiary elements set forth supra, it can be said that:

The protection of acquired rights means, in this case, that notwithstanding the elimination of the norms, all amounts received until then as financial assistance must be considered non-recoverable. To the extent that they had definitively entered the patrimony of the interested parties prior to the legal reform, it would be absurd—and unconstitutional—to seek that they must be returned, or something similar. And, (sic)

The protection of consolidated legal situations implies that, although the interested parties could not claim that the norms in question (and, with them, the rule they created) could never again be subject to reform or even, as occurred, repeal, they did have the right to expect that, with respect to themselves and all other persons subject to the same state of affairs, the consequence they anticipated would be produced or continues to be produced. That state of affairs was characterized by the rule that causally connected their factual situation (disabling illness) with the effect contemplated in the law (the enjoyment, even for an indefinite period, of a leave of absence and the payment of the corresponding pecuniary financial assistance). The fact that the rule has disappeared—something the legislator undoubtedly has the power to do—cannot have the virtue of producing that for them the consequence to which they already had a right no longer arises. This could only occur, ex nunc, for those who, as of the date of the legal reform, had not acquired that title.” Adopting as a frame of reference what is provided in the cited precedents, the Chamber considers that the challenged regulation is not per se contrary to the principle of non-retroactivity, since it is clear that the legislator has the power to vary the conditions or requirements under which a retirement is granted—the person has not yet consolidated the right—when it deems it necessary to guarantee the financial sustainability of a particular regime, or when there is a difference between the income received and the payment of current retirements, in protection of the principles governing Social Security, a species, in this latter case, of a contingency cap.

However, and without detriment to what was expressed above, it is appropriate to clarify that it would indeed be a violation of Article 34 of the Constitution to attempt to apply the effects of the law to the factual assumptions, conditions, or requirements for obtaining a retirement or pension, to those persons who had already obtained that benefit prior to its entry into force, except in an extraordinary case, as expressed supra. This is because, as established in the cited voting records, the retiree has the right to have the conditions and rules under which they obtained their pension respected, that is, that the conditions the law provided for them at the time their legal situation was consolidated be maintained. It is necessary to clarify that the monthly amount of the current retirements or pensions the person receives is not an element that cannot be affected, since the legislator, in exercise of the taxing power, may levy taxes on them, as has been done recently, an extreme on which this Court issues no pronouncement, for it will be in the unconstitutionality actions that have been filed on this extreme and others—see judicial file 2017-001676—where a position will be set on the scope and limits of the taxing power in this matter.

By reason of what was stated in the preceding lines, this Chamber considers that it is necessary to make a conforming interpretation of Law Number 7858, in the sense that it is not a violation of the principle of non-retroactivity, provided and as long as it is interpreted that its effects are only applicable to those persons who would have obtained the retirement right after December 28, 1998, the date on which the cited norm entered into force, after being published in the official newspaper La Gaceta number 251, for the elementary reason that those who obtained the right to retirement after that date must be subject to the rule in force, that is, the maximum cap when the condition established by law is met, which has been duly accredited by the National Accounting Office. It is clarified that this Court considers it necessary to dimension the ruling in the sense that this interpretation shall take effect as of its full publication in the Judicial Gazette, in such a way that in the event that the Public Administration and the ordinary courts reach the conclusion that the challenged norm, the directive, and the resolution are in force, the cap shall be applied toward the future and not toward the past, meaning the Administration could not collect any sum that retirees and pensioners may have received prior to the day of the referred publication.” To elucidate the problem of constitutional relevance that concerns us, it is essential to define the legal effects that the reforms would have: that is, whether they are ex tunc or ex nunc. Although the claimants, throughout the pleadings of the filing of the actions, claim the right to the intangibility of their patrimony (which has been addressed previously in this ruling), understood by them as the impossibility of modifying the amounts of the pensions they receive in the present and future, and consequently claim that the monthly benefit of retirements or pensions cannot be modified, in the view of this Chamber, this is not possible, in light of the doctrine of Article 34 of the Constitution and the jurisprudential interpretation of this Court (except in the case of improvement). The Chamber’s jurisprudence moves in a direction contrary to that of the claimants, reaffirming that the legislator may modify or reform legislative provisions, which poses a problem of effects or consequences of the norms for their addressees, within the respective coordinates of time and space. As is proper for any regulation that complies with material and substantial formalities, they govern from the day they designate, or failing that, ten days after their publication in La Gaceta (Article 129 of the Constitution). Therefore, the pretension of maintaining the validity of the abolished right is not always receivable, for the Chamber’s jurisprudence states that the protection against the retroactivity of norms “does not consist in that the legal rule, once in force, that connects the fact with the effect cannot be modified or even suppressed by a later norm (for that would be to accept the immutability of law); what it means is that if the conditioning assumption has been produced, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that was expected under the prior norm from arising […] what is relevant is that the state of affairs the person enjoyed was already defined in terms of its elements and its effects, even if these effects are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule.” Thus, what one has a right to are the consequences, and not the norm, especially if it is repealed or modified.

In this way, there is no possibility of claiming the immutability of law, which operates, in the case of pensions, if it finds those foundations in technical-actuarial criteria, in the need to establish a sound financial balance, even, as was affirmed in the precedent cited above that examined the constitutionality of Law No. 7858 (Ruling No. 2018-19030 of 5:15 p.m. on November 14, 2018), in which this Chamber established—as obiter dictum—that monthly amounts could indeed be affected through the taxing power of the State. In this sense, throughout this ruling, it has been established that it is indeed possible for the legislator to do so. Although, a norm could not be issued that revoked the pension benefit despite having been obtained in compliance with the formal and material rules of the pension regime (especially due to the contributions paid into and received by a pension fund), or that conditioned the benefit by aggravating it with demands that would make it inexigible for the older adult despite having been legitimately obtained. Even in assumptions prior to acquisition through consolidated membership in the regime, there must be room here for a degree of protection, in accordance with the principle of legitimate confidence or legitimate expectations that is recognized when there are previously existing, clearly established legal relationships, which are sustained and which, in order to be modified, cannot be arbitrary or abusive; acting under the shadow of the prior legislation must be permitted. It is necessary that there be some predictability, which would be protected by the principle of legality, and constancy and good governance be guaranteed. But, in the view of the Chamber, the protection against the non-retroactivity of norms would not include the power of the State to exercise its taxing power and demand exactions in favor of the State, toward the future, always within the limits given by tax principles (among them principles of legality and hierarchy of norms), as well as reasonableness and proportionality, non-confiscation, and contributory capacity.

On the other hand, it must be remembered that the right to a pension is not an absolute right; it yields when it is necessary to impose restrictions and limitations, especially those based on the general and solidarity interest, through formal and material law. The problem lies in how much that impact is, especially if it is a reduction or implies a diminution of guarantees contained in international legislation that entails a confiscatory levy, which affects other associated fundamental rights such as economic and social rights. It is, however, a possibility that many of the informants agree that this Chamber has established over the years, that the amount of pensions may be modified for improvement, or be restricted through caps or solidarity contributions. It is also possible to levy taxes on these incomes, which for the reasons argued by the claimant parties cannot be considered unconstitutional, except for the limits established internationally, according to what is analyzed here. If the effects are for the future, it cannot be branded as unconstitutional, unless the legislation authorizes the State to tax past incomes, in which case it becomes a problem of constitutional relevance for contradicting the guarantee of the non-retroactivity of norms. In this way, it can be affirmed that the legislation would not be designed to modify acquired rights and consolidated legal situations, nor the doctrine of the survival of the abolished right, for it is evident that there could be a problem of administrative application of the norms, in which those conditions that were recognized to pensioners and retirees must be respected, for those pensioners and retirees who acquired the right to the pension as established by the regulations and jurisprudence of this Court. The foregoing, without prejudice, of course, to the obligation to pay taxes in accordance with Article 18 of the Constitution. This is understood in conformity with the recent transcribed jurisprudence.

Furthermore, it must be observed that nothing in the norms of the State’s taxing power allows understanding that sums received in excess must be reimbursed—retroactively—when they were legitimately determined based on the regulations in force. In that sense, the benefit is affected only toward the future, not regarding the problem that derives from the reduction of the amount, which has been determined as partially legitimate in this ruling, and it is taken into consideration that the applied limit or cap is part of the need to establish a balance in the special pension regime through the special contribution that is a tax.

Another of the arguments of the claimants relates to acquired rights or consolidated legal situations from the perspective of Convention No. 102 of the International Labour Organization. In this sense, they consider that it would be illegitimate, from the point of view of this regulation, for them to be newly taxed with fiscal charges, parafiscal charges, contributions to the fund, solidarity contributions, among others, that result in a final reduction of the gross current pension amount by 55%. In particular, the Office of the Attorney General of the Republic maintains that articles 65.3 and 67.a of the Convention establish that this may be prescribed by national legislation or in accordance with article 1.1 of the mentioned text, establishing a maximum of its amount, while respecting the minimum established in the Convention. In the case of old-age benefits, it would be 40% of the total salary of the ordinary unskilled worker (articles 65, 66, and 67 of the Convention).

However, it is the view of this Court that this involves—again—problems of coordinates in time and space, and why not say it, that would give room for the State to assume extreme positions. Both the justification of the Office of the Attorney General of the Republic, as accepted by the minority of the Chamber, and what the majority of this Chamber understands, would be based on different norms of the Convention that justify the limits differently, because they venture into problems of different orders: the first, that of the minimum level of benefit that the respective pension system may set, which may be exceeded by the State, when the beneficiary or insured person meets the formal and material requirements set by national law. The second, the obligation of the State to ensure and take good governance measures in pension regimes, such that it would be obligated to comply with the principles of financial solidarity and the principle of State responsibility, in the interest of the financial balance of pension regimes (art. 71 of Convention No. 102 of the International Labour Organization). Although both normative justifications may impact the level of the benefit, they are not entirely assimilable problems, given that the extent and implication of the measures differently impact the lives of pensioners. It is not the same to authorize a benefit deduction of up to 40% (as suggested), from amounts in current payment, as it is to apply the measures related to the financial balance of a particular regime, which is what is fundamentally under discussion and must be applied in good faith by the Costa Rican State vis-à-vis an international treaty, by applying a total of insurance contributions borne by insured persons that cannot exceed 50% of the total resources allocated to their protection. The foregoing, because forms of protection must be established through the principle of legitimate confidence, principles of reasonableness and proportionality, as well as the expectations of rights legitimately formed over years of contributions, because a considerable regression in economic, social, and cultural rights would be caused. Certainly, it is not the same, the initiation into a regime and acquiring membership in the pension system, as approaching the consolidation of the right, or having fulfilled the formal and material requirements for the formation of the right, in which case, a rationality in the management of these situations must be established, in justice and equity, especially if one belongs to pension funds. This contrasts with the general obligation to pay taxes and the tax principles of economic or contributory capacity, and of tax progressivity, authorized by the conventional norm.

Convention No. 102 of the International Labour Organization establishes minimum levels of benefits for pension regimes, among which it is indicated that they may not be lower than the prescribed portions of the ordinary current salary paid for simple unskilled work, adding some other rules, such as minimum times; but it is clear that these types of rules should not be interpreted as a license that authorizes the regression of human rights, considered from an economic, social, and cultural approach, since for their effective exercise, these require the implementation of legal and economic mechanisms provided by the State. In this sense, with full reason, the Committee on Economic, Social and Cultural Rights of the United Nations establishes a primacy of law and policy over these rights, where the lack of resources cannot serve as a pretext for non-compliance with them. That would leave open the possibility for the State to unrestrictedly modify certain benefit rights, when it is not lawful to leave them in force artificially or merely in a sterile exercise, because affecting one disturbs others, especially when it involves economic income, to recognize with crystal clarity that the measure of regression impacts many other fundamental rights. It must not be forgotten that these rights must have a certain level of (effective and economic) exercise, for they enjoy the character of being universal, indivisible, and interdependent, as well as interrelated.

Article 2.1 of the International Covenant on Economic, Social and Cultural Rights, to which our country is a party, establishes that:

"Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures." It is evident that this numeral implies the international obligation of States not to turn back certain levels of enjoyment of rights that it has already placed at the service of its citizens; in such cases, it is understood that such marked extremes should not be reached, such as reducing a pension by up to 40% of the gross amount, or 45% of that item, which to a large extent means disturbing and offending the principles, values, and rights contained in Constitutional Law.

Article 67.c of Convention No. 102 of the International Labour Organization establishes that:

"With respect to any periodical payment to which this Article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule fixed by the competent public authorities in conformity with prescribed rules; (b) the amount of the benefit may be reduced only to the extent by which the other resources of the family of the beneficiary exceed prescribed or fixed substantial sums by the competent authorities in conformity with prescribed rules; (c) the total of the benefit and of the other resources of the family, after deduction of the substantial sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds by at least 30 per cent the total amount of the benefits which would be obtained by applying the provisions of Article 66 and the following provisions…" Subsection c) of Article 67 of Convention No. 102 allows for moderating an application -so extreme- of rules that assign a minimum reduced benefit to all workers equally, although, also, the prohibition on reducing these incomes must be taken into account (subsection b) conditioned on them being above certain parameters established in national legislation, which relates to better incomes. And regarding d) insofar as it incorporates a global comparative evaluation criterion to determine sufficiency with the indicated percentage with respect to a uniform benefit or the minimum (of Article 66). That is to say, the regulation always refers to the possibility of improving the benefit according to the beneficiary's circumstances. The truth is that subsection c) of Article 67 of Convention No. 102, cited, refers to one of the essential elements of economic, social, and cultural rights: that the benefits agreed upon by the State, in accordance with subsection a) of numeral 67, already cited, must be provided to ensure the beneficiary a degree of dignity, adequacy, and maintain a relationship that ensures individuals a decent life and economic level (healthy and decent living). It cannot thereby -despite Convention No. 102 apparently allowing it- detract from all importance, and fail to take into account the contributions, payments, and even the life of the pensioner and retiree. Relevant, in the Chamber's opinion, is the context of past, present, and future contributions and payments, in the economic, professional, and occupational sphere, since only these factors would make it possible to justify a pension at levels so low that they would unbalance the contributions referenced to the amount of the pension, as well as the beneficiary's very life. It is clear that disregarding those conditions would reveal a contempt that the majority of this Tribunal could not be a party to, as it strikes at conscience, justice, and equity, values that must be present in all State conduct.

Article 9 of the Protocol of San Salvador establishes that:

"1. Everyone has the right to social security protecting him from the consequences of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decent life. In the event of the death of a beneficiary, social security benefits shall be applied to his dependents" (the highlighting is not from the original).

Similarly, it is important to bring up some other norms of interest, such as numerals 3.j) and 45.b) of the Charter of the Organization of American States, which regarding the latter establishes that:

"Work is a right and a social duty, it confers dignity on the person who performs it, and it must be performed under conditions that, including a system of fair wages, ensure the life, health, and a decent economic level for the worker and his family, both during his working years and in his old age, or when any circumstance deprives him of the possibility of working" (the highlighting is not from the original).

And Article 25 of the Universal Declaration of Human Rights, which reads:

"1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control" (the highlighting is not from the original).

In this sense, it must be taken into account that there is a legal relationship formally pre-established and sustained over decades (that is, before the pension as well as after), which if varied, cannot be done by using the State's power of imperium (potestad de imperio) in extremis, without exercising the principles of reasonableness and proportionality, taking into account the dignity of the elderly, and the need for adequacy of all the economic, social, and cultural rights of the elderly. In the case before us, the claimants have achieved the formal and material conditions to retire or receive a pension, conditions that have been the subject of formal recognition by the State, and have been the basis for them having obtained the corresponding economic benefits. It also carries weight that some have been fixed for the most part long ago, as is the case with the claimants. In the majority's opinion, it is contrary to the doctrine of the protective principles of human rights to consider that the economic benefit of pensions can simply be modified by up to 40% of the gross amount, because it produces a significant problem of constitutional and conventional relevance, which would be injurious to the principles of the interdict of arbitrariness and the legitimate expectations (confianza legítima) of the State, among others. It must be taken into account that the same International Labour Conference, 76th Session 1989, entitled "The protection of old age through social security, general study of the Committee of Experts on the Application of Conventions and Recommendations," cited by the minority, wisely clarifies that:

"139. It should be recalled that the provisions of the instruments considered are not intended to impose upon States a specific method for calculating the amount of benefits provided for by national legislation; these remain free to adopt their own rules and methods of calculation to set the amount of benefits paid within the framework of their national systems, provided that the result of their calculations satisfies the requirements provided for by the instruments regarding the level of benefits. The three formulas invoked, as well as the parameters which they use, such as the 'wage of a skilled manual male employee' and the 'wage of an ordinary adult male labourer' have been established only for the purpose of comparing national situations and the requirements of the Conventions. Consequently, and contrary to what certain governments seem to believe, every State for which these Conventions are in force may use one or the other of these formulas, for purposes of international comparison, without thereby having to introduce them into its national legislation or practice." Coupled with the foregoing, it is worth noting the advancement of international human rights law related to the Inter-American Convention on the Human Rights of Older Persons. It could not be maintained that the legislator can demand a reduction of pensions to such a degree (40%) for the financing of benefits, because that obligation would be regulated in Article 71 of Convention 102 of the International Labour Organization, which would surely compromise other international obligations such as the observance in good faith of international obligations, especially regarding human rights, and with which economic benefits are linked to other fundamental rights, such as the adequacy of the pensioner and retiree's housing, food, clothing, health, and others equally important.

Article 71 of Convention No. 102 of the International Labour Organization regulates the way in which countries can address the financing of social security benefits, among them, pensions and retirement. All of which can be done with substantive tax principles, because it is done in accordance with progressivity in tax matters and the contributory capacity of the pensioner, within the limits established by that provision of the Convention. According to national practices, there are different systems used, whether through tripartite contributions with contributions from the State, employer, and employee as in Costa Rica, or employer and the State, or insured persons and employers; evidently, it is an issue that they develop according to national realities. But it is evident, by the placement of that provision in the treaty, that it contains common rules related to how national legislation should address the financing contributions of social security covered by the Convention, which would clearly bind the State in the way it may require that financing from employees. The truth is that a system in which, for example, only the insured persons are required to finance these pension systems would be in conflict with subsections 1) and 2) of Article 71 of Convention No. 102. Additionally, if the pensioner or retiree is to be required to assume certain costs, direct and indirect, associated with the economic benefit received by the right to a pension or retirement, this Constitutional Tribunal must prefer only that provision which injures the benefit rights (derechos prestacionales) to a lesser degree, and all other rights associated with them. It should be noted that this argument is illustrated by the Inter-American Convention on the Human Rights of Older Persons, which precisely elevates older persons to a special category of international protection, to which the country must adhere before the concert of Nations. For all these reasons, in light of the challenged laws, when the amount of the deduction on the pension amount exceeds more than 50%, its unconstitutionality is due to the excessiveness of that application, according to the reasons explained supra.

It is clear that there can also be no interpretation to the detriment of employees, workers, pensioners, and retirees, especially those whom Convention No. 102 of the I.L.O. classifies as the most modest, as well as those of intermediate amounts not subject to the taxing power of the State discussed in this judgment, because those who are starting out are not in the same situation as those who have contributed considerably, or those who already enjoy the right, in which case, concluding as the Procuraduría suggests that pension benefits can be reduced by up to 40% of the total salary of an ordinary unskilled worker would be a problem of considerable constitutional and conventional relevance for these benefits. Even for those who would be closer to the pension, the need to consider forms of protection could be affirmed. Hence, there would be no doubt that legislative measures as drastic as those should be justified by duly supported actuarial studies, which give merit to strict scrutiny by the Constitutional Chamber. But, even more so, reducing the benefit to such a degree would be out of all discussion in the case of current pensioners and retirees, since there is a special norm that restricts the taxing power of the State; and, even admitting doubt, the most favorable norm should be applied, in accordance with the protective principles of Human Rights (paragraph 2, Article 71, of Convention No. 102 of the International Labour Organization). In any case, it must be concluded, however, that fulfilling the foregoing, higher economic benefits maintain a susceptibility to be taxed, according to their contributory capacity, but only up to the limit of 50% of the gross pension amount, as indicated supra (…)" (The highlighting is not part of the original).

In judgment No. 2021-11957, issued at 5:00 p.m. on May 25, 2021, this constitutional body had the opportunity to rule again on this matter, as the claimants also alleged that the reform made to numerals 236 and 236 bis of the Organic Law of the Judicial Branch through Law No. 9544, and the deductions that, henceforth, would be made from the gross amount of the pension of the pensioners of this Branch of the Republic -including that pertaining to the special and solidarity contribution (contribución especial y solidaria)-, represented a violation of constitutional ordinal 34. This precise aspect of the action was dismissed by the Chamber, under the following order of considerations:

"LII.- Drafted by Magistrate Hernández López. On the acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas) of judicial retirees and pensioners in relation to the special, solidarity, and redistributive contribution. Some claimants allege that there is also in the special, solidarity, and redistributive contribution an infringement of Article 34 of the Political Constitution. They affirm that, in accordance with the analysis of the constituent process, acquired patrimonial rights or consolidated legal situations, by virtue of the application of a law in force, cannot be violated by a subsequent law because the consolidated legal situation has been included within the person's patrimony and touching it is to breach the principle, also constitutional, of the intangibility of patrimony enshrined in Article 45 of the Political Constitution. In light of the foregoing, they allege that it is precisely that constitutional prohibition that has been breached in Law number 9544 because its norms affect consolidated legal situations, to the detriment of the retirees and pensioners of the Judicial Branch, their acquired patrimonial rights (pensions and retirements in the course of payment or previously declared) and consolidated legal situations in the form of pension and retirement benefits with constitutional protection under Articles 73 and 74. Another sector of claimants affirms that acquired rights and consolidated legal situations are also violated for those active public servants who, for many years, have been contributing to the Retirement and Pension Regime of the Judicial Branch and now, when they were closer to retiring, the rules of the game are abruptly changed to the extreme that, in order to obtain the right to retirement, they will now have to work many more years, reach a higher age, and in return receive a lower retirement benefit. The claimants also state that the introduction of this new item to be deducted from the pensions and retirements of judicial public servants implies a novel change of conditions that causes, as they affirm, a considerable decrease in the net amount to be received by the beneficiaries, without taking into account that these are persons in a condition of vulnerability. (…)

LIV. Magistrate Hernández López continues drafting. Faced with the claimants' argument, the Chamber considers that no weighty legal criteria have been provided that make it necessary to reconsider its extensive jurisprudence in which it has sustained the non-existence of an impact on Article 34 Constitutional with the establishment of special contributions such as the one created in Law number 9544. As the Procuraduría rightly argues, Law 9544 is not eliminating the right to retirement or pension for persons for whom it has already been declared and who are enjoying it, and in accordance with the established jurisprudence, it cannot be said either that these persons have an acquired right to the amount of the retirement benefit they are receiving. On this point, the Tribunal has been conclusive in that there is no right that the benefit derived from the right to a pension be for a specific amount (see in that sense the very judgment 2020-19274 just mentioned). Nor is it a matter of the regulatory norms of the retirement system being petrified because the Chamber has also admitted that it is valid that, as necessary and always complying with respect for fundamental rights, the modifications that are necessary to adjust the system be made. Thus, it is not considered that the mere fact that the obligation to pay a special, solidarity, and redistributive contribution in this case was decreed is injuring any acquired right of the retirees or pensioners in the terms in which they allege. Nor are the legal situations of persons for whom the right has not yet been declared injured, because it must be remembered that the so-called right of belonging (derecho de pertenencia) that this Tribunal has jurisprudentially identified gives rise in favor of contributors to a mere expectation of obtaining the right to retirement, since they have not generated consolidated situations or acquired rights at the moment the new law comes into force, so the latter comes to regulate said situation in the state in which it finds itself, it being clear then that the norm (art. 34 constitutional) refers to subjective legal situations already consolidated, not to those that constitute mere expectations, since these, as the right has not been perfected, are indisputably subject to the future regulations that the law introduces. Consequently, regarding this aspect, the action is declared without merit (…)" (The highlighting is not part of the original).

For its part, in judgment No. 2024-6250, issued at 4:30 p.m. on March 6, 2024, this Chamber, in accordance with the provisions of Law No. 9796 and its particular application to the retirees of the National Teachers' Regime, ruled out the commission of an infringement of the principles of non-retroactivity and legal certainty. This time, the Chamber reiterated that the figure of the special solidarity contribution (contribución especial solidaria) was not unconstitutional, nor was the establishment of said payments that pensioners with more onerous amounts impacting the public purse had to assume, provided it was understood that those deductions would be made for the future and not to the detriment of amounts already received (with the exception of those situations that had to be subjected to a lesivity process). In that same order of considerations, on this occasion, this jurisdiction –alluding, in turn, to the provisions of judgment No. 1999-5236–, indicated that it was not being forced to make contributions on monies already received as a pension and that, for the future, the rules were different, given that the amount of the contribution -which sought to compensate past imbalances and guarantee the survival of the system- in no way affected acquired rights.

In addition to the foregoing, in this judgment No. 2024-6250, the Chamber was clear in stating that nothing opposes, within the constitutional framework, the legislator introducing reforms to the social security system and regulating or modifying, for the future, the normative elements that legal operators must take into account to recognize the amount of the pension in the basic substitute systems for that of disability, old age, and death.

It was affirmed, then, that the legislator has a margin of discretion that allows them to validly introduce the reforms that, according to economic needs, social conveniences, and the evolution of the times, they deem necessary and pertinent to ultimately guarantee the right to a pension. In other words, on this occasion, the Chamber held that, along with the right to retirement, there was, in turn, the power of the State to regulate the necessary conditions to guarantee the permanence and payment of such benefits, but also long-term fiscal sustainability without harming the national community; all of which, in no way, could translate into a violation of the principle of non-retroactivity to the detriment or the principle of legal certainty.

As can be clearly observed, the Chamber has been of the opinion that the imposition of the contributions under analysis on retirees, whether from the Judicial Branch or other regimes, does not result in a breach of Article 34 of the Magna Carta, given that, although there is a right to a pension, one cannot concomitantly speak of a right to a fixed amount thereof, which can be subjected to limitations and restrictions in the future –such as those examined in this proceeding–, provided that its essential content is respected and the amounts already received are not affected. Under that perspective, and as there are no sufficient reasons to vary the criterion established by the Chamber in its jurisprudence for this type of matter, the appropriate course is to dismiss this aspect of the action.

**E. Regarding the alleged violation of the principle of equality.** The claimants state that Judicial Branch officials contribute 13.5% of their pension salary, while the rest of the population contributes 3.8% and that “*retirees continue with a similar and equally disproportionate contribution in relation to the rest of the pension regimes*”. They maintain that the Judicial Branch pension regime is self-sufficient and, therefore, finds itself in an unequal situation with respect to the rest of the pension regimes. They affirm that the reform specifically affects one group (Judicial Branch retirees), over any other pension regime, since the former see their pension amount progressively and rapidly decreased by virtue of the special contributions and other deductions applied to them (CCSS insurance, taxes). They explain that equal legal treatment must be given to those who are in the same legal position or category and indicate that “*those placed in different positions, situations, or categories must receive different legal treatment*”. From the foregoing, they affirm, it follows that not all legal treatment must be uniform, since, on the contrary, there may be reasons that justify the legal system differentiating in the treatment of persons, whether natural or legal.

Additionally, they state that there are two elements to determine whether or not there is a violation of the principle of equality: first, the parameter of comparison that allows establishing that between two or more persons there is an identical situation and that, therefore, discriminatory treatment devoid of any objective and reasonable justification occurs; and second, the reasonableness of the differentiation, “*by which the principle of reasonableness is established as a parameter of constitutionality*”. They refer to the principle of constitutional supremacy and the sub-principle of reasonableness. They affirm that, following this principle, laws must conform to the constitutional sense formed by the motives taken into account by the constituent, by the proposed ends, by the fundamental legal values, and by the means provided. Thus, then, when a jurist locates a norm that is not in accordance with constitutional principles, it is clear that they must make a judgment about its reasonableness in order to determine its irregularity or not with the Magna Carta in accordance with the demands of the principle of constitutional supremacy. They allege that, having clearly understood that the principle of reasonableness has constitutional rank and cannot be exempt from analysis in every State decision or law formation, it must be understood, then, that Law No. 9796 flagrantly, directly, and grossly attacks said principle.

They maintain that the relationship between the principle of reasonableness and the principle of equality poses as an essential problem the discernment of a normative decision and how this would allow unequal treatment to be reasonable. They indicate that the foundation of the questioned law is inconsistent and disproportionately burdensome for the sector of judicial retirees.

They also mention that, for the differentiation to be constitutionally legitimate, it is not enough for the end pursued by it to be legitimate, but it is also indispensable that the legal consequences resulting from such distinction be adequate and proportionate to said end, so that the relationship between the measure adopted, the result produced, and the end intended by the legislator passes the proportionality test at the constitutional level, avoiding especially burdensome or excessive results. They maintain that, precisely, the differentiation measure contained in the law is burdensome and excessive, given that the subjects covered by it are considerably dissimilar; hence the effects are disproportionate in the strict sense and contrary to the Political Constitution.

For the purposes of resolving this aspect of the action, it is necessary to begin by specifying that, on repeated occasions, this Constitutional Chamber has indicated that the content of the principle of equality established in Article 33 of the Political Constitution prohibits making differences between two or more persons who are in the same legal situation or in identical conditions, without it being possible to seek equal treatment when the conditions or circumstances are unequal. In principle, equal treatment is agreed upon for equal situations, and different treatment is made possible for different personal situations and categories. Likewise, this jurisdiction has indicated that, to determine whether a distinction is truly justified, one must analyze whether the motive that produces it is reasonable, that is, whether, taking into account the particular circumstances of the case, diverse treatment is justified.

In addition to the above, this constitutional body has indicated that, in those cases where a violation of Article 33 of the Political Constitution is alleged, it is not enough for the appealing party to affirm or invoke that a different treatment has occurred to consider the breach of the constitutional norm proven, since whoever alleges the violation of this principle is obliged to provide *ab initio* sufficient elements that suggest –with a reasonable degree of probability– that a differentiated and unjustified treatment of equal situations has unjustifiably occurred. As has been established by this Chamber, it is not enough for the claimant to simply affirm that a different treatment has occurred in a given case to consider that breach proven. On the contrary, whoever alleges the violation is obliged to provide elements that allow for a full comparison to be made between the subjects treated in a different manner - see, in this regard, the provisions, among others, in rulings No. 2023-14335, of 09:30 hrs. of June 16, 2023, and No. 2024-2501, of 09:15 hrs. of February 2, 2024-.

In the present matter, the claimants omitted to make a clear, precise, and forceful exposition of how, in their opinion, the content of the challenged regulations -which is only Law No. 9796- violates the principle of equality for Judicial Branch retirees, thus making it impossible for this Court to carry out the corresponding substantive analysis. Note that the claimants, in the first place, did not provide the case file with a precise parameter of comparison that would allow this jurisdiction to carry out the analysis of interest; on the contrary, in the filing brief they merely mentioned that judicial officials contribute 13.5% and the “*rest of the population*”, 3.8%; the latter aspect, moreover, is not even regulated in the law under study. They also indicate that the reform made through Law No. 9796 affects Judicial Branch retirees over “*any other regime*”, by virtue of the progressive and accelerated decrease in the pension amount; but it is not specified or clarified to which other regime or regimes they refer and in what specific way this presumed differentiated and unreasonable treatment occurs. The claimants insist on making abstract assessments referring to “*the rest of the regimes*”, without explaining, as stated, how the violation they claim presumably occurs.

In that same order of considerations, it is worth noting that, in the filing brief for this action, specifically, in the section where the violation of constitutional Article 33 is claimed, the interested parties engage in a long exposition and explanation of the content of this principle and even refer to its relationship with the principles of constitutional supremacy, reasonableness, and proportionality; however, they do not stop, as stated *supra*, to explain how the questioned articles of Law No. 9796 generate the alleged violation. In particular, the interested parties merely maintained that the law in question flagrantly, directly, and grossly attacks the principle of reasonableness and that it, in turn, “*is inconsistent and disproportionately burdensome for the sector of judicial retirees*”.

In essence, the claimants invoked the violation of constitutional Article 33 without offering any parameter of comparison or element of judgment, as was appropriate for this type of case.

Now then, despite what has been said *supra* and even though the claimants have not carried out the necessary exercise and development noted, it is appropriate to point out, at this juncture, that one could not speak of a violation of the principle of equality insofar as the special solidarity contribution (the core object of this constitutionality proceeding) was imposed on various pension regimes; that is, as the Attorney General's Office well explains in its report, on different regimes, with equally diverse benefits and conditions, so, consequently, there is no possible comparison whatsoever to be made (in terms of equality of conditions) that would allow validating a violation of the principle of equality.

Inequality, as well explained above, could only be invoked when unreasonable and disproportionate differentiations occur or are produced under identical conditions, which, as stated, does not occur based on the foregoing premises. Even note that the claimants themselves, in the filing brief for this matter, agree with this last assertion in maintaining that “*those placed in different positions, situations, or categories must receive different legal treatment*”. Furthermore, it is the same interested parties who maintained that the subjects covered by the law “*are considerably dissimilar*”.

In addition to the above, it must be taken into account that this Court, in the already reiterated ruling No. 2021-11957, of 17:00 hrs. of May 25, 2021, dismissed the grievance regarding the alleged violation of the principle of equality claimed by the claimants, when making a comparison between the Judicial Branch pension regime and the CCSS pension regime, on the occasion, in turn, of the provisions of Law No. 9544. The foregoing, by explaining, essentially, that they are two totally different regimes. On that occasion, this specialized jurisdiction in constitutional matters ordered the following:

“**XXIX.- Drafter Judge Hernández López. On the principles of equality and unity of social security and the provisions of Chapter I "Benefits" of Law 9544.** The claimants argue a violation of the principle of equality and the unity of social security in relation to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund and affirm that, despite part of the intention with the reform introduced by Law 9544 being that the Judicial Branch Retirement and Pension Regime be equalized or, at least, come as close as possible to that regime, what was actually done was to considerably distance judicial servants from the Costa Rican Social Security Fund system and from any other social security regime existing in the country. They point out that with the reform introduced by Law 9544, Judicial Branch workers end up contributing additional amounts in at least 3 items that the country's workers who are affiliated with the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund do not have. This concerns the payment by Judicial Branch retirees of: **1)** 5 per 1000 for administration expenses that must be paid to the Fund's Administrative Board and that, in principle, would represent approximately 0.41%, borne by active workers as well as by retirees and pensioners; an amount that was not paid before because the Fund's administration was carried out by the Superior Council of the Judicial Branch and the Full Court, as part of their legally assigned functions; **2)** 13% contribution to the Judicial Branch Retirement and Pension Regime, which would mean that contributions are made by active servants, retirees, and pensioners. In this case, the difference in the contribution is much higher for affiliates of the Judicial Branch Regime, even though both categories -Judicial Branch Regime and IVM Regime- have the right to bear the same burdens; **3)** 5% contribution for health insurance that will be paid by the retiree or pensioner, while pensioners under the IVM regime do not contribute for this item.

The interested parties argue that the sum of the 3 previous items would imply that when it is deducted from 82% of the gross retirement amount, the latter would finally be a real amount of 66.83%; in contrast, in the case of workers affiliated with the Disability, Old Age, and Death Regime of the CCSS, they argue that although it is true that the basic pension amount ranges between 43% and 52.5% as a gross pension amount, it is also true that this regime has 2 additional incentives that are added to that basic amount: a) 0.0833% for each additional month contributed starting from the 240th monthly installment and b) the postponement benefit which is 2.9326% in the case of a woman and 2.7993% in the case of a man. Thus, they indicate that for workers affiliated with the Disability, Old Age, and Death Regime of the CCSS (RIVM), in the case of a woman who retires at age 65 with 35 years of service in the RIVM, the basic pension amount would range between 60.9266% and 70.4266%, and in the case of a man with those conditions, it would be between 60.7933% and 70.2933%, being that, according to their claims, when contrasting these percentages with the basic amount for judicial servants of 66.83%, it is observed that persons affiliated with the Disability, Old Age, and Death Regime would be in a better situation. For this reason, they consider it more than evident that, in light of this data, far from having made both regimes equivalent, what was done was to place affiliates of the Judicial Branch Regime in a situation of disadvantage compared to those belonging to the CCSS regime and, with that, they consider that the right to equality and the principle of the unity of social security are harmed. (…)

**XXXI.- Drafter Judge Hernández López continues drafting.** (...) This Chamber recalls that the content of the principle of equality established in Article 33 of the Political Constitution means that it is prohibited to make differences between two or more persons who are in the same legal situation or in identical conditions, without it being possible to seek equal treatment when the conditions or circumstances are unequal, agreeing, in principle, on equal treatment for equal situations and making different treatment possible for different personal situations and categories. It has also been indicated that the requirement of equality does not delegitimize differentiated treatment, but in order to determine whether a distinction is truly justified, one must analyze whether the motive that produces it is reasonable, that is, whether, taking into account the particular circumstances of the case, diverse treatment is justified (see in this sense ruling No. **5061-94** of 17 hours 34 minutes of September 6, 1994). Hence, not in all cases should equal treatment be given, disregarding the possible differentiating elements of legal relevance that may exist; or what is the same, not all inequality necessarily constitutes discrimination. Equality is only harmed when an inequality is devoid of an objective and reasonable justification, which obliges an assessment of its purpose and effects, such that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. All that has been expressed means that equality before the law cannot imply material equality or real and effective economic equality (see ruling No. 1770-94 of 9 hours 18 minutes of April 15, 1994).

Based on the foregoing, in the Chamber's opinion, the appellants are not correct regarding this claim, firstly because there is no evidentiary elements that the legislator's intention was aimed at homogenizing the Judicial Branch Retirement and Pension Regime with the Disability, Old Age, and Death Regime of the CCSS, which is totally different in its nature, in the number of contributors, employer contributions, worker beneficiaries, etc., and because—even if that were true—the final result of the legislator is clear as to their will that an exclusive regime exists for Judicial Branch workers, which is consistent with the inclination that emerges from the claimants to keep their regime in force and protect it, as well as with the vocation of the superior authorities of the Judicial Branch and the technical studies of the IICE themselves, to promote the necessary conditions so that the Judicial Branch Retirement and Pension Regime continues to function and be robust as well as solvent. Now then, it is clear to this Court that this decision to maintain a special, independent, and different retirement regime, different from the basic one, entails an associated cost and gives rise to consequences that must be assumed by its affiliates, which by the simple fact of being different do not necessarily imply discrimination, a violation of the principle of equality, or the principle of the unity of social security. From this perspective, the establishment of different contribution amounts and burdens for the regimes, obligations or not to continue contributing after the retirement right is acquired, and diverse conditions for granting the right to a person, is the result of the need to take into account the particularities and plurality of factors that relate to the labor conditions and the configuration of the group of participants in the fund (or the disparity in employer contributions), as well as the benefits that are intended to be obtained in retirement, or in attention to the social and economic policies that may intervene at a given moment. On this matter, the Chamber considers that, if the primary purpose of the constituent was to maintain social insurances to strengthen social security, there is no reason to question the existence of a plurality of regimes, provided that, as the Attorney General's Office indicated, equality criteria are met regarding state contributions. In this way, it is constitutionally acceptable that a difference exists between the pension regime of the Costa Rican Social Security Fund and that of the Judicial Branch, because their enactment responds to different needs and conditions that make their simple comparison in terms of deductions, worker contributions, and benefit profile improper, without also weighing the differences between the number of contributors, caps, coverage of acquired rights, and other conditions that make them different. It is also worth adding that it is public and notorious, having been publicly reported by the authorities of that institution themselves, that the Costa Rican Social Security Fund's pension regime presents significant threats to its financial stability and that in response to this, changes in eligibility requirements and the benefit profile are being considered, so that also from this point of view, the comparison the claimants propose loses weight and relevance to serve as support for a declaration of unconstitutionality based on inequality, as requested. Thus, the Chamber does not consider that Law 9544 has violated the principles of equality (…)” (The emphasis is not part of the original).

For its part and, in line with the foregoing, in recent judgment No. 2024-6250 of 16:30 hrs. of March 6, 2024, by which the constitutionality of Law No. 9796 was analyzed—particularly for the case of retirees of the Magisterio Nacional—, this Chamber stated that the principle of equality could not be considered violated, given that the regulation in question—which precisely governs matters concerning the special and solidarity contribution—was applicable to all pension regimes, that is, to those contemplated in the Ley Marco de Contribución Especial de los Regímenes de Pensiones, to the Régimen General de Pensiones con Cargo al Presupuesto Nacional, to the Magisterio Nacional, and to the special regime of the Poder Judicial. Likewise, on this occasion, it was clarified that, in any case, it was not correct to carry out comparisons between the various special pension regimes, since these respond to different grouping and regulation criteria; in such a way that the solutions adopted by the legislator for each specific case could be validly different for each of those groups.

In addition to the foregoing, it is worth noting that, according to the terms of the provisions of Law No. 9796, particularly as stated in articles 4 subsection b) and 7—which, in turn, amended article 236 bis of the Ley Orgánica del Poder Judicial—, the payment of the solidarity contribution in question will be imposed on all retirees of the Poder Judicial whose pension amount exceeds six base salaries of the lowest paid position in said institution. Likewise, according to what is stipulated in those numerals, pensioners of this regime must contribute in a staggered and progressive manner, according to the specific amount they receive for that concept. Consequently, it could not be argued that, among retirees of the Poder Judicial regime who are in identical conditions—v.gr. who receive a certain pension amount classifiable on a specific scale according to the provisions of article 236 bis of the Ley Orgánica del Poder Judicial—, arbitrary and unjustified differentiations are carried out; a plane where one could then indeed speak of a violation of the principle of equality. However, as stated, this state of affairs does not occur either according to the study carried out. A similar argument was made by the Chamber when issuing the criterion established in judgment No. 2024-6250, of 16:30 hrs. of March 6, 2024, under the understanding that, within the framework of the Magisterio Nacional pension regime, all retirees—starting from the new cap that was established in accordance with Law No. 9796—, must comply with the payment of the solidarity contribution for the same purpose, which is to guarantee the sustainability of pensions. Furthermore, on that occasion it was indicated that, since these are progressive scales—which equally occurs in the case of Poder Judicial retirees, as already explained—, the principle of equality between the different income levels of each retired person is also respected. All of the foregoing led this Court to conclude that, within the framework of the Magisterio Nacional regime, all retirees must, therefore, comply with similar obligations, and the distinctions cannot be branded as odious or discriminatory, since these are based on the income of each one.

Thus, this Constitutional Court finds no merit whatsoever to uphold the present acción de inconstitucionalidad regarding this claim.

F. On the alleged violation of the principle of reasonableness and proportionality. On the other hand, the plaintiffs argue that the reforms carried out based on the provisions of Law No. 9796 become unreasonable and disproportionate, insofar as they end up imposing deductions of up to 55% on the judicial retiree's pension amount.

Having reviewed the foregoing, this Chamber does not consider that this particular aspect of the process can be assessed on its merits, insofar as the claim of the interested parties lacks foundation, having merely "stated" the grievance to such principles, concomitantly omitting to carry out an analysis of the essential elements that serve as parameters of reasonableness (necessity, suitability, and proportionality in the strict sense), regarding the norms whose constitutionality is challenged, in order to demonstrate, consequently, that these do not meet this triple condition. The foregoing aspect, as stated, is an essential and determining requirement for this constitutional jurisdiction to be able to issue a pronouncement on the matter. Note that, in this regard, this Chamber, in judgment 2014-1584 of 16:01 hrs. of February 5, 2014—reiterated, among others, by judgments numbers 2022-374 and 2024-4629—, indicated, on this matter, the following.

"C.- On the principle of reasonableness and proportionality. The plaintiff association considers that article 32 bis of the Código de Comercio lacks objective criteria, and that there is no judgment on the necessity and utility of the intended purpose, although it justified the previous violations, already cleared by this Court, it did not do so with respect to the breaches regarding the violation of this principle. It is not enough to state the breach of the principle of reasonableness, but rather it has the obligation to provide the reasons why it considers these parameters do not exist. In this sense, this court notes that in judgment No. 0523-99, of 14:00 of July 7, 1999, this Court ruled as follows on this requirement: «To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide evidence or at least elements of judgment on which to base its argumentation, and the same procedural burden falls on whoever refutes the arguments of the action, and failure to comply with these requirements makes the claims of unconstitutionality unacceptable. The foregoing, because it is not possible to carry out an analysis of "reasonableness" without the existence of a coherent argumentative line that is evidentially supported. This, of course, when it is not a matter of cases whose "unreasonableness" is evident and manifest» (…)" (The emphasis is not part of the original).

From the study of the action, as stated, it is noted that the plaintiff party not only failed to clearly and concisely indicate the reasons that lead it to conclude that the questioned norms are unreasonable, but also failed to carry out the reasonableness test required in these cases, nor did it provide any evidence that allows reaching that conclusion. On the other hand, the present matter does not present the characteristics of a situation of evident and manifest unreasonableness, which is also easily perceptible.

In any case, it should be noted that a similar argument to the one now raised by the plaintiffs was addressed and dismissed by this Chamber in Judgment No. 2021-11957, of 17:00 hrs. of May 25, 2021. On that occasion, the following was expressly stated:

"XLVIII. Written by Magistrate Araya García. Regarding the claim for lack of reasonableness and proportionality of the special, solidarity, and redistributive contribution established in article 236 bis of the Ley Orgánica del Poder Judicial.- The plaintiffs claim that the special, solidarity, and redistributive contribution harms the principles of reasonableness and proportionality because it broadly affects the sums ultimately received by retirees of the Poder Judicial Retirement and Pension regime, who see their payments reduced not only by the 13 percent contribution to the Fund but by percentages of 35 to 55 percent on the excess amounts, without any reason or justification for it, and only for the purpose of preventing people who earned their right to receive a high pension from receiving such sums that are considered luxury without being so in any way. (…)

L.- Written by Magistrate Araya García. To address this claim, the Court refers to what was stated in previous considerandos regarding the nature and purpose of the special, solidarity, and redistributive contribution, according to the original design of article 236 bis of the Ley Orgánica del Poder Judicial, and recalls the fact that it is a burden for those high retirement and pension payments to the new system put into operation with the reform. It also especially emphasizes that regarding the maximum cap on deductions that the plaintiffs challenge as a key element for the lack of reasonableness and proportionality in the special contribution, this matter was defined supra, by majority, in line with what was stated in judgment number 2020-19274 cited above, in that the percentage of legal deductions—in cases where they are constitutionally permissible—cannot exceed 50 percent of the gross pension amount. In addition to the foregoing, and given that the claim against the reasonableness and proportionality of the special contribution uses the concept of "last salary" or "income level at the time of retirement" as a parameter, it must be reaffirmed what was stated by this Court regarding the insufficiency of the actions filed in constitutionally justifying the choice of such a parameter to contrast the reductions.

LI.- Written by Magistrate Araya García. Having pointed out the foregoing, it is now appropriate to analyze whether the structure of the reductions in itself generates any unreasonableness or disproportionality of constitutional scope that must be corrected by this Court, taking into account that, as has been consistently held by this Chamber, in this type of discussion about the amounts to be received, the constitutional right to receive a retirement or a pension is not at stake, as the latter does not consist of the right to receive a specific amount of money, and therefore the amounts to be paid can be adjusted according to the financial possibilities of the State and social security designs, provided that the person's dignity is not affected nor are they prevented from enjoying their other fundamental rights and, in general, from leading a dignified life. In principle, the observation is made that this special burden, according to the design discussed in the actions, sought to tax the excesses over the cap set in article 225 of the Ley Orgánica del Poder Judicial, namely, ten times the minimum salary paid in the Poder Judicial, which was established for the year 2020 at 433,800 colones. Thus, the application of the special, solidarity, and redistributive contribution would have begun to be deducted on excess payments exceeding 4,330,800 colones, thereby fulfilling the proposed purpose of balancing extraordinary income with the equally extraordinary expenditures that the fund would have to face; this necessity was clearly set forth in the study and technical proposal used as a basis for legislation by the Asamblea Legislativa, as observed in folio 1984 of the legislative record that compiles the summary tables of the four normative frameworks proposed by the IICE and which explain—in the paragraph on additional income—the need for a solidarity contribution for those payments above the proposed cap, and it was clarified that it was a single percentage. On the other hand, the necessity and suitability of said measure becomes even more evident when it is verified that the Asamblea excluded from the final text the sums corresponding to abandoned judicial deposits that were included in the technical proposal as additional resources in the cited recommended regulatory frameworks. It must also be taken into account that what was approved was a progressive scale that, in this revenue collection matter, is much more protective for those affected, with which—in the Chamber's opinion—the requirement of proportionality in the strict sense is satisfied. The plaintiffs insist on the fact that the claims could reach such a magnitude as to deprive retirees and pensioners of the possibility of living a dignified life, but the truth is that, in this regard, the arguments indicated in judgment 2020-19274 are fully applicable, which held, by majority, that the reduction of retirement amounts by up to 50 percent is not in itself unconstitutional, but rather the interested parties must demonstrate that the remaining sums actually received are insufficient to meet their basic needs as older persons and to maintain a standard of living that can objectively be considered dignified. In the specific case, and with the original cap indicated above, the recipients of the lowest retirement or pension payments within the group affected by this special, solidarity, and redistributive contribution would have to receive 50 percent of the gross amount; that is, in the worst-case scenario of reduction for them due to increases in legal contributions of any type, the minimum to be received would be 2,150,000 colones. It was up to the plaintiffs to clearly demonstrate that said sum is generally insufficient to appropriately cover the average needs of a retired or pensioned person in our country. It must also be taken into account that, in accordance with the social security system derived from the validity of the Ley de Protección al Trabajador, retirees will have additional sums derived from their funds in the other two pillars. From the foregoing, it is concluded that there is also no vice of unconstitutionality in the original design of the special, solidarity, and contributory contribution set forth in the original text of article 236 bis of the Ley Orgánica del Poder Judicial. (…)" (The emphasis is not part of the original).

Consequently, the appropriate course is to dismiss this aspect of the process.

G. Regarding the presumed infringement of the principle of solidarity. The plaintiffs also accuse that the law under study violates this principle, since it alters the circumstances for a specific sector of the population—Poder Judicial retirees—with a non-progressive but disruptive reform, which generates poverty and financial detriment.

Having reviewed the foregoing, this Chamber does not find merit to uphold this aspect of the process. First, insofar as the plaintiff party—as is proper when filing a formal process such as the acción de inconstitucionalidad—does not clearly and precisely explain or substantiate how, concretely, through the articles contained in Law No. 9796, the principle of solidarity could be breached. Added to this, the plaintiffs did not demonstrate their presumed condition of poverty and financial detriment; inputs of great relevance to understand and examine this particular point. Regarding this last point, it should be noted that this Chamber, in the repeatedly cited judgment 2021-11957, of 17:00 hrs. of May 25, 2021, when hearing claims similar to the one now raised, held the following:

"Secondly, the plaintiffs speak of high percentages of impact with respect to the last salary, but—apart from what has been said regarding such a parameter—the truth is that no technical proof is provided regarding the actual impact and effect of the challenged legal reform, given that all deductions except one pre-exist the reform, and the only nominal changes the Chamber appreciates are: the shift from 11 to 13 percent in the worker contribution and the charge of 5 per thousand (that is, 0.5%) to cover the Fund's administration expenses, so that—in its essence—the structure of the reductions is not largely different from that applicable to the fund's participants during their working life, nor compared to the previous legal situation that the plaintiffs claim; in such a way, it was up to the plaintiffs to demonstrate that such modifications generated a serious decrease in the actual income of those affected, but such evidence is missing (…)

In fourth and last place, it is not unnecessary to point out that a claim such as the one raised in this point, (the delivery of retirements described as "ruinous, impoverishing, and undignified") cannot be based on abstract elaborations referring solely to percentages of reduction, because this omits the fact that "ruin," "impoverishment," and "indignity" do not operate in the abstract but are verified in reality against the insufficiency of the payments and the actual amounts received; with this, it is intended to emphasize that speaking in the abstract of deductions of 50 or 55 percent on the last salary could include, for instance, cases of salaries between 4 and 6 million colones which, reduced by half, leave the beneficiary with a net retirement sum of around 2 to 3 million colones per month, which—in light of this Court's experience and absent demonstration to the contrary—cannot be openly deemed insufficient to live a dignified old age in our country (…)" (The emphasis is not part of the original).

Likewise, in this latter vote, this jurisdiction also stated:

"(…) It was also explained above, that the specific amounts that have been subject to the special tax, given their high amount, leave in the hands of the affected retirees and pensioners a remaining sum regarding which the plaintiffs have not managed to demonstrate, even indicatively, its manifest insufficiency to provide economic support for a dignified life and the enjoyment of the human rights that make up the assets of older persons, even more so taking into account that precisely in attention to constitutional and conventional obligations, the State—in a broad sense—has been building a support structure in various areas to ensure not only retirees but all older persons precisely that dignity in old age. In conclusion, as stated, no specific impact on the possibilities of effective enjoyment of fundamental rights and the possibility of living a dignified life, recognized in favor of older persons by normative instruments of various ranks and by this Chamber's jurisprudence, has been demonstrated; therefore, in accordance, the action should be dismissed on this point as well (…)" (The emphasis is not part of the original).

Now then, despite what was stated supra, it is convenient to note that this jurisdiction, when issuing judgment No. 2024-6250, of 16:30 hrs. of March 6, 2024—which ruled precisely on the present law under study No. 9796—, was clear in pointing out that the right to retirement, inserted as a social and solidarity right, concomitantly entailed—pursuant to the provisions of Constitutional article 50—, a task for the State of administration, management, and redistribution of resources, in order to precisely ensure the solvency of the retirement system itself and the general well-being of the social collective. On this occasion, referring, in turn, to the provisions of Judgment No. 1999-3338, the Chamber thus maintained that solidarity among the members of a community (which implies, grosso modo, contributing according to one's means and for the benefit of those who have less), legitimizes and justifies the imposition of burdens (such as the special solidarity contribution), in favor of a just and adequate redistribution of wealth.

In addition to the foregoing, it cannot be overlooked that, contrary to what was alleged by the claimant and as explained supra, the levy in question is indeed progressive, such that, within the taxed group, those who receive the highest sums must contribute more to the support of the fund.

Having said the above, this aspect of the proceeding must be declared without merit.

H. Regarding the alleged lack of technical studies. Finally, the claimants argue that, for the establishment of the contribution percentages to the regime—which range from 35% to 55%—there were no technical studies, which, in their opinion, makes the regulation under review arbitrary and unconstitutional.

However, in the opinion of this Chamber, this argument is also not receivable. The foregoing, insofar as the claimants, once again, omitted to present arguments, in a duly substantiated manner, regarding how this alleged omission (lack of technical studies to impose the referred contribution percentages) could imply or signify an unconstitutionality. As can be easily deduced from a reading of the filing of this unconstitutionality action, the interested parties first merely indicated that the contributions imposed on retirees of the Judicial Branch cause a deterioration in their economic condition “by setting confiscatory deduction levels, which are not supported by technical and/or specialized studies.” Some pages later, they limited themselves to mentioning that “in the law we challenge, deduction percentages of 35% (…) 45% (…) and 55% (…) are set, percentages established without any technical study, therefore they are arbitrary and confiscatory (…).” As has been explained supra, it is essential, in order to address this grievance on its merits, that the claimant provide a duly reasoned argument regarding the way in which, in their opinion, the alleged lack of technical studies could be in conflict with the provisions of the Political Constitution; hence, in the absence of such an argument, this jurisdiction cannot issue any pronouncement.

In any case, it is of interest to note that in judgment No. 2024-6250, of 4:30 p.m. on March 6, 2024—through which, as already stated, this Chamber ruled on the constitutionality of Law No. 9796, but referring to or circumscribed to the scope of the National Teachers' pension regime—an analysis of the legislative process—file No. 21.035—was carried out and it was noted that, for the approval of said regulation, technical criteria were indeed available.

It is worth mentioning that although, on that occasion, the Chamber focused on the analysis of that specific pension regime—National Teachers—it was also stated that, for the purposes of issuing the regulation in question, including that pertaining to the Judicial Branch, studies and technical criteria that supported it were available at that time, which was also confirmed by what was stated by the legislative advisor of the Department of Technical Services, Mr. Arias Ramírez, in ordinary session No. 30 of the Permanent Commission of Social Affairs, who, on that opportunity, asserted that actuarial reports were indeed available, the one from the Judicial Branch even being the last to arrive. According to what was indicated by this constitutional body in said recent judgment, even though at an initial moment of the legislative process the technical studies were lacking, the truth is that these were finally added to the respective file, and therefore, it is not possible to affirm that the law in question was enacted lacking such inputs.

Finally, it is important to clarify that any disagreement that may exist regarding the actual content of said technical criteria is not for this constitutional body to analyze. It is not for this Chamber, due to lacking competence for it and since it is, at its core, a matter of mere and pure legality, to examine what was indicated in those instances and consequently determine whether what was provided or recorded in one or another technical criterion was pertinent or not; especially, for the purposes of the reform made to the Judicial Branch pension regime.

Under this order of considerations, this aspect of the proceeding must be equally dismissed.

XI.- COROLLARY. By virtue of the foregoing, the present unconstitutionality action must be partially granted. Consequently, the contribution percentage and the special contribution established in article 5 of Law No. 9796 are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person of the Judicial Branch regime. However, in accordance with article 91 of the Law of Constitutional Jurisdiction, to avoid serious disruptions to security, justice, or social peace, the Chamber calibrates and dimensions the effect of this resolution, so that, starting from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in accordance with this judgment, in such a way that the tax burden weighing on the amount of the retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner.

XII.- DISSENTING VOTE OF MAGISTRATE RUEDA LEAL. In the sub examine, the majority partially grants the action and “annuls the contribution percentage and the special contribution established in article 5 of Law No. 9796 insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person of the Judicial Branch regime.” In this regard, I partially dissent from the vote in relation to this aspect and declare it without merit, given that, according to the express text of article 67 of Convention No. 102 of the ILO of 1952 called 'Social Security (Minimum Standards) Convention,' the pension or retirement may be reduced as long as 40% of a reference wage is respected.

On this matter, the principal judgment of this proceeding bases the referred unconstitutionality ut supra on what was decided in judgment no. 2021-11957 of 5:00 p.m. on May 25, 2021, which ordered: “(…) By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas and Hernández Gutiérrez) the contribution percentage and the special solidarity and redistributive contribution are annulled insofar as they exceed 50% of the gross amount of the pension corresponding to the retired or pensioned person. However, in accordance with article 91 of the Law of Constitutional Jurisdiction, to avoid serious disruptions to security, justice, or social peace, the Chamber calibrates and dimensions the effects of this resolution, so that, starting from the month following the notification of the judgment, the competent authorities must make the corresponding adjustment in accordance with this judgment, in such a way that the tax burdens weighing on the amount of the retirements and pensions do not exceed 50% of the gross amount received by the retiree or pensioner.” Nevertheless, I separated from that criterion in the following terms:

“Dissenting vote of magistrate Rueda Leal in relation to considering XLI. In the sub examine, the unconstitutionality of law no. 9544 is challenged, insofar as it reformed article 236 of the Organic Law of the Judicial Branch and added numeral 236 bis to that regulatory body. It is reproached that in both articles they established a maximum limit of 55% of deductions with respect to the gross retirement amount, which they deem excessive and contrary to the fundamental right to retirement.

The challenged norms have this content:

“Article 236- The Pension and Retirement Fund of the Judicial Branch shall have the following income:

• 1)A worker contribution of thirteen percent (13%) of the salaries earned by judicial servants, as well as of the retirements and pensions payable by the Fund, a percentage that will be withheld in the corresponding periodic payment.
• 2)An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the salaries and wages of its servants.
• 3)A State contribution that will be a percentage on salaries and wages equal to that established for the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund (CCSS).
• 4)The returns and other benefits that the Fund produces or may come to generate or obtain.

In no case shall the sum of the mandatory contribution and the special, solidarity, and redistributive contribution and, in general, the totality of deductions applied by law to all pensioners and retirees of the Pension and Retirement Fund of the Judicial Branch, represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the mandatory contribution established in this law shall enter the Pension and Retirement Fund of the Judicial Branch.

Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess of the cap established in article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess of the previous margin and up to a further twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess of the previous margin and up to a further twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess of the previous margin and up to a further twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess of the previous margin, they shall contribute fifty-five percent (55%).

In no case shall the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied by law to all pensioners and retirees of the Pension and Retirement Fund of the Judicial Branch represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the special, solidarity, and redistributive contribution established in this law shall enter the Pension and Retirement Fund of the Judicial Branch.” Regarding the maximum percentage of pension deductions, the Majority vote partially transcribes what was ordered in judgment no. 202019274 of 4:30 p.m. on October 7, 2020. In addition, it points out that articles 236 and 236 bis of the Organic Law of the Judicial Branch (reformed by the challenged law no. 9544) are unconstitutional, since both set 55% as the maximum limit for legal deductions, which exceeds by 5 percentage points the maximum established in the cited resolution. Likewise, it annuls the contribution percentage and the special contribution insofar as it exceeds 50% of the gross amount of the pension corresponding to the retired or pensioned person.

However, I respectfully separate from the criterion of the Majority and declare the appeal without merit based on these reasonings.

As I indicated in my dissenting vote to judgment no. 202019274 of 4:30 p.m. on October 7, 2020, the percentage established by the Majority as the maximum limit for contributions and deductions (50%) was based on a strained interpretation of numeral 71.2 of Convention C102 of the ILO, since article 67 of that international instrument is the one that applies for pension reductions. On that occasion I stated:

“III.- Dissenting vote regarding the substantive claims related to laws nos. 9380 and 9383. The legal premise of the majority vote, on which most of its argumentative line is based, starts from the premise that article 71.2 of ILO Convention C102 of 1952 - Social Security (Minimum Standards) Convention - is applicable to pensioners and retirees. Said provision states:

“2. The total of insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their wives and children. For the purpose of ascertaining whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefit and in the case of employment injuries and diseases, if the latter are provided by a special branch.” As the norm refers to “employee”, the majority is forced to specify the meaning of that term, since it evidently only alludes to active workers. In this sense, the principal vote of this proceeding states:

“It would remain to be determined if ‘employee’ means only the worker before acquiring the right to the pension by the advent of the formal and substantive conditions of the right, or if it is possible to understand that employee also refers to another type of system beneficiary. In the Chamber's opinion, a broader interpretation must be given that includes not only the active worker, to admit that in effect, the pensioner or retiree would be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic point of view, in that the pensioner or retiree receives a deferred salary that they built with their contributions throughout their working life. Even so, it cannot be ignored that in the document of the Committee of Experts, the concept of employees evolves when it refers to ‘insured persons’. Thus, said concept must be assimilated to both obligated parties, as potential and current insured persons: pensioner and employee. See that the cited study emphasizes that there is no straitjacket on the States; on the contrary, the approach must respond to national contexts, and the evolution of systems cannot be ruled out to agree on a solidary system of financing and good governance within the framework and evolution of human rights, as will be stated below. If the provision seeks to achieve a balance, it is perfectly understandable that it should include all those who receive a pecuniary sum as a result of the agreed benefit, since in that sense, it distributes that burden among all participants, which is what the international norm really seeks to establish. This interpretation would replicate positively with the Committee of Experts, already cited. Consequently, it must be understood that ‘employee’ or ‘insured person’ has a broad meaning, and that it is not a term excluding retired or pensioned persons.” Based on the foregoing, the Chamber, in the principal vote, concludes that laws nos. 9380 and 9383 infringe the second paragraph of numeral 71 of Convention no. 102 of the ILO by establishing a limit greater than 50%. Likewise, the majority considers that the 5% excess set by the legislator implies a violation of the core of the right to retirement or pension, to the extent that the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the above, the undersigned dissents from this hermeneutics, because it is based on an erroneous premise arising from a technical confusion in basic legal notions.

Firstly, article 71.2 of ILO Convention C102 of 1952 - Social Security (Minimum Standards) Convention - refers to the percentage of insurance contributions borne by employees in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, the employee, according to the referred norm, should never contribute to the Costa Rican Social Security Fund more than 50% of the total resources allocated to the protection of employees and their wives and children, that is, of the total resources financed through the rest of the contributions (from the employer and the State).

Now, it is indubitable that the express text of the convention norm regulates "employees"; that is to say, the economically active population, without it being possible to validly infer from any ILO study the conclusion reached by the majority that it also applies to "pensioners".

The most serious aspect of the foregoing is that the Chamber, through jurisprudential means, alters the positive text of a conventional norm ratified by Costa Rica through the competent bodies.

In this way, it changes the legal-normative meaning of the provision contained in the international instrument with the purpose of forcibly adapting it to the specific case, which notoriously deals with a matter unrelated to the subject matter of the sub lite—salary—thus overlooking the existence of other norms of the ILO Convention that specifically and concretely regulate matters concerning pensions and the limitations that can be validly imposed on them for the sake of the system's financial stability and social solidarity. In this regard, Part XI “Calculation of Periodical Payments,” contains the following provision:

“Article 67 With respect to any periodical payment to which this article applies: (a) the amount of the benefit shall be determined according to a prescribed scale or a rule fixed by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other resources of the family, after deducting the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds by at least 30 percent the total amount of the benefits that would be obtained by applying the provisions of Article 66 and the following provisions: (i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

TABLE ANNEXED TO PART XI.—PERIODICAL PAYMENTS TO STANDARD BENEFICIARIES

(Emphasis not in the original).

Ergo, according to the literal and explicit text of the Convention, for the old-age pension to be reducible and, in this way, in principle to ensure the family healthy and decent living conditions, such benefit must reach at least 40 percent of a reference wage.

Regarding this point, an ILO study does exist. Precisely, at the International Labour Conference, 76th Session 1989, “The protection of old age by social security, general study of the Committee of Experts on the Application of Conventions and Recommendations,” it was stated:

“Level of benefits 130. By virtue of the table annexed to Part XI of Convention No. 102 relating to periodical payments, **the old-age benefits** for a standard beneficiary - man with spouse of pensionable age' - **must reach 40 percent** of a reference wage2. Said percentage increases to 45 percent in the table annexed to Part V of Convention No. 128. Both percentages may, however, be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into consideration by the Conventions (paragraphs 1, 3 and 4, Article 29 of Convention No. 102 and paragraphs 1, 3 and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it recommends a percentage of 55 percent3 (paragraph 22), and recommends in its paragraph 23 that national legislation set the minimum amount of old-age benefits, in order to ensure a minimum standard of living.” (Emphasis not in the original).

Thus, I consider that the premise from which the majority vote proceeds is false, so that the conclusions derived from it are inexorably wrong.

Now, the Sole Article of Law No. 9380 of July 29, 2016, called “Contribution percentage of pensioners and active employees for special pension schemes (regímenes especiales de pensiones),” regulates:

“In no case may the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva), represent more than fifty-five percent (55%), with respect to the total amount of the pension that corresponds by right to the beneficiary.” In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." For its part, paragraph 3 in fine of Law No. 9383 of July 29, 2016, entitled "Framework Law on the Special Contribution of Pension Regimes," provides:

"In no case may the sum of the special, solidarity, and redistributive contribution and all deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." This 55% limit with respect to the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since it cannot be inferred from the petitioners' arguments that its application automatically breaches the 40% barrier with respect to a reference salary under the terms of Article 67 of that international instrument. In that regard, such reference salary, in the case of Costa Rica, could refer to the average of salaries used to calculate a person's pension amount, which is consistent with Article 65 of that regulation. It should be noted that the 55% parameter of the challenged laws relates to the gross amount of the pension, while the conventional 40% relates to a reference salary, meaning that these are limits applied differently. Therefore, it will be in the context of the application of the legal norm that it must be assessed whether, in any specific case, probably concerning very high pensions, the conventional barrier overrides the legal parameter.

Additionally, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Civil Service Directorate General) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383), subject to a gradual scale of impact, guarantee more than dignified pensions for older adults. In the foregoing sense, I see no arguments demonstrating that the staggered contribution and the charges imposed are openly unreasonable or affect the core of the right to a pension, and I therefore rule out any manifest impact on the human dignity of the beneficiary persons.

Regarding the foregoing, it is not possible to affirm that the questioned provisions breach the international protection enjoyed by older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a decent standard of living.

Thus, I consider that, with the elements provided in the case file, Laws No. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they breach the special protection enjoyed by older adults.

Similarly, even though a breach of the principle of administrative liability is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause harm to persons; therefore, I prima facie dismiss this claim.

(…)

In the sense set forth, if a pension financed largely or entirely with public funds is unreasonably high (with disproportionate amounts and increments), it is justified that legislation be used to seek the adjustment of such benefits for the sake of safeguarding the right to a dignified existence for all pensioned persons. Provided that the imposition of contributions and charges on old-age pensions and retirements respects the conventionally established percentage (Article 67 of ILO Convention 102), there would be, a priori, no breach of Constitutional Law. It must be taken into consideration that, as accepted by the majority of this Chamber, the country's economic situation is complicated and the sustainability of the pension regime is compromised; therefore, in accordance with the principle of social solidarity, it is essential that those who are in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood from the standpoint of solidarity toward the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of persons. For that very reason, it is precisely not considered contrary to the principle of non-retroactivity to increase the contribution amounts of pensioned or retired persons, provided that the guarantees and limits set forth in this dissenting opinion are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights relating to the right of persons to lead a dignified life in their old age, and considers that the 40% percentage provided for in Article 67 of ILO Convention 102 itself is contrary to justice, equity, the prohibition of arbitrariness, and legitimate confidence. However, as I indicated supra, the norm of the international instrument applicable to the specific case is precisely that Article 67, endorsed by the ILO, but not Article 71.2, as it is forcedly interpreted by the majority in the main ruling.

Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scale issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2,602,500.00 in the first half of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subject to a gradual scale of impact on larger pensions, guarantee more than dignified pensions for older adults.

Finally, even though there are ILO recommendations suggesting half the salary as a pension in cases where thirty years of effective contributions are credited, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose binding nature is unquestionable) does expressly contemplate a percentage that must be respected for pension purposes in old-age cases (40% of a reference salary), hence the direct application of the international instrument in the sub lite is appropriate.

Based on the foregoing, I dismiss the actions as they relate to Laws No. 9380 and 9383.” Precisely, in accordance with the position set forth above, the provision of ILO Convention C102 applicable to this type of matter is Article 67, and not numeral 71.2.

In this regard, Articles 67 and 71.2 state:

“Article 67 With respect to any periodic payment to which this article applies:

(a) the rate of the benefit shall be determined according to a prescribed scale or a scale fixed by the competent public authorities in conformity with prescribed rules; (b) the rate of the benefit may be reduced only to the extent by which the other means of the family of the beneficiary exceed prescribed substantial amounts fixed by the competent authorities in conformity with prescribed rules; (c) the total of the benefit and the other means of the family, after deduction of the substantial amounts referred to in subparagraph (b) above, shall be sufficient to maintain the family in health and decency, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of the benefits paid under the Part concerned exceeds by at least 30 per cent. the total amount of the benefits which would be obtained by applying the provisions of Article 66 and the following provisions:

(i) Article 15, subparagraph (b), for Part III; (ii) Article 27, subparagraph (b), for Part V; (iii) Article 55, subparagraph (b), for Part IX; (iv) Article 61, subparagraph (b), for Part X.

TABLE ANNEXED TO PART XI.—PERIODIC PAYMENTS TO STANDARD BENEFICIARY

(…)

“Article 71.

(…)

2. The total of the insurance contributions borne by the employees protected shall not exceed 50 per cent. of the total of the financial resources allocated to the protection of employees and their wives and children. For the purpose of ascertaining whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefit and employment injury benefit, if the latter is provided by a special branch.” As can be inferred from reading the cited articles, the Chamber, in judgment No. 202019274 of 16:30 hours on October 7, 2020, unnecessarily altered the legal-normative meaning of Article 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of Article 67 of the international instrument, which specifically regulates matters concerning the limitations that may be imposed on pensions.

Note also that Article 71.2 refers to the percentage of insurance contributions borne by wage earners in relation to the total resources allocated to that protection; that is, this provision governs “wage earners” (the economically active population) and not “pensioners or retirees.” Based on the foregoing, in accordance with the line I have maintained, I dismiss these arguments, since it is not evident that Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial cited above automatically exceed the 40% barrier of a reference salary, established in Article 67 of ILO Convention C102. Note that the 55% parameter of the laws under challenge refers to the gross amount of the pension, while the conventional 40% refers to a reference salary; thus, it is within the scope of the application of the legal norm to assess whether, in any specific case, the barrier established in the international instrument supersedes the parameter set forth in the legislation. Consequently, I see no arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right.” Additionally, in resolution no. 2020-19274 of 4:30 p.m. on October 7, 2024 (also cited by the majority as grounds for granting the claim), I issued, in the relevant part, the following dissenting opinion:

“**Dissenting opinion of Magistrate Rueda Leal.** (…)

**III.- Dissenting opinion regarding the substantive claims related to Laws no.⁰ˢ 9380 and 9383.** The legal premise of the majority opinion, on which most of its line of argument is based, starts from the assumption that Article 71.2 of ILO Convention C102 of 1952 - Convention concerning Minimum Standards of Social Security - is applicable to pensioners and retirees. This provision states:

“2. The total of the insurance contributions borne by the wage earners protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of wage earners and their spouses and children. In order to determine whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefits and benefits in respect of employment injuries and occupational diseases, if the latter are provided by a special branch.” Since the norm refers to “wage earners,” the majority is forced to clarify the meaning of that term, given that it evidently only alludes to active workers. In that regard, the main opinion of this proceeding states:

“It remains to be determined whether ‘wage earner’ means exclusively the worker before acquiring the right to a pension upon the advent of the formal and substantive conditions of the right, or whether it is possible to understand that wage earner also refers to another type of beneficiary of the system. In this Chamber’s view, a broader interpretation must be given that includes not only the active worker, to admit that, in effect, the pensioner or retiree would be included in this concept. In fact, although anticipating what will be said later, this position is compatible, from a legal and economic standpoint, in that the pensioner or retiree receives a deferred salary that they built with their contributions throughout their working life. Moreover, it cannot be overlooked that in the document of the Committee of Experts, the concept of wage earners evolves when referring to ‘insured persons.’ Thus, this concept should be assimilated to both obligated parties, as potential and current insured persons: pensioners and wage earners. See that the cited study emphasizes that there is no straitjacket on States; on the contrary, the approach must respond to national contexts, and the evolution of systems cannot be ruled out to agree on a supportive system of financing and good governance within the framework and evolution of human rights, as will be stated below. If the provision seeks to achieve a balance, it is perfectly reasonable that it should include all those who receive a pecuniary sum resulting from the agreed benefit, because in that sense, it distributes that burden among all participants, which is what the international norm truly seeks to establish. This interpretation would replicate positively with the Committee of Experts, already cited. Consequently, it must be understood that ‘wage earner’ or ‘insured person’ has a broad meaning, and it is not a term that excludes pensioned or retired persons.” Based on the foregoing, the Chamber, in the main opinion, concludes that Laws no.⁰ˢ 9380 and 9383 infringe the second paragraph of Article 71 of ILO Convention no. 102 by establishing a ceiling higher than 50%. Likewise, the majority considers that the 5% excess set by the legislator implies a violation of the core of the right to retirement or pension, to the extent that the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the above, the undersigned dissents from this hermeneutic, because it is based on an erroneous premise stemming from a technical confusion in basic legal notions.

Firstly, Article 71.2 of ILO Convention C102 of 1952 - Convention concerning Minimum Standards of Social Security - refers to the percentage of insurance contributions borne by wage earners in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, the wage earner, according to the referenced norm, should never contribute to the Caja Costarricense de Seguro Social more than 50% of the total resources allocated to the protection of wage earners and their spouses and children, that is, of the total resources financed through the remainder of the contributions (from the employer and the State).

Now, it is indisputable that the express text of the convention norm regulates “wage earners”; that is, the economically active population, and no valid ILO study can infer the conclusion reached by the majority that it also applies to “pensioners.” The most serious aspect of the foregoing is that the Chamber, by jurisprudential means, varies the positive text of a conventional norm ratified by Costa Rica through the competent bodies. In this way, it changes the legal-normative meaning of the provision contained in the international instrument with the purpose of forcefully adapting it to the specific case, which notoriously deals with a matter foreign to the object of the sub lite - the salary - thus disregarding the existence of other norms of the ILO convention that specifically and concretely regulate matters pertaining to pensions and the limitations that can validly be imposed on them in the interests of the financial stability and social solidarity of the system.

In this regard, Part XI “Calculation of Periodic Payments” contains the following provision:

“Article 67 With respect to any periodic payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule set by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may not be reduced except to the extent that the other resources of the beneficiary’s family exceed appreciable prescribed sums or sums set by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and of the family’s other resources, after deduction of the appreciable sums referred to in paragraph (b) above, must be sufficient to ensure the family healthy and suitable living conditions, and must not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of paragraph (c) shall be deemed to be fulfilled if the total amount of the benefits paid, for the part in question, exceeds at least 30 percent of the total amount of the benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) paragraph (b) of Article 15, for Part III; (ii) paragraph (b) of Article 27, for Part V; (iii) paragraph (b) of Article 55, for Part IX; (iv) paragraph (b) of Article 61, for Part X.

TABLE ANNEXED TO PART XI.—PERIODIC PAYMENTS TO THE STANDARD BENEFICIARY

(The highlighting does not correspond to the original).

Ergo, according to the literal and explicit text of the Convention, for an old-age pension to be reduced and, in this way, in principle to ensure the family healthy and suitable living conditions, such benefit must reach at least 40 percent of a reference wage.

On this point, an ILO study does exist. Precisely, at the International Labour Conference, 76th Session, 1989, “The protection of old age through social security, general survey of the Committee of Experts on the Application of Conventions and Recommendations,” it was stated:

“Level of benefits 130. By virtue of the table annexed to Part XI of Convention No. 102 relating to periodic payments, **old-age benefits** for a standard beneficiary—man with spouse of pensionable age’—**must reach 40 percent** of a reference wage2. Said percentage rises to 45 percent in the table annexed to Part V of Convention No. 128. Both percentages may, however, be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence, normally taken into consideration by the Conventions (paragraphs 1, 3, and 4, Article 29 of Convention No. 102 and paragraphs 1, 3, and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 percent3 (paragraph 22), and recommends in its paragraph 23 that national legislation fix the minimum amount of old-age benefits, in order to ensure a minimum standard of living.” (The highlighting does not correspond to the original).

In this way, I consider that the premise from which the majority vote departs becomes false, so inexorably the conclusions derived from it are erroneous.

Now, the Sole Article of Law No. 9380 of July 29, 2016, called “Contribution Percentage for Pensioners and Active Servers for Special Pension Regimes,” regulates:

“In no case may the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%), with respect to the totality of the gross amount of the pension to which the beneficiary is legally entitled. For cases in which this sum exceeds fifty-five percent (55%), with respect to the totality of the gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%), with respect to the totality of the gross amount of the pension.” For its part, ordinal 3 in fine of Law No. 9383 of July 29, 2016, called “Framework Law on the Special Contribution of Pension Regimes,” establishes:

“In no case may the sum of the special, solidarity, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) with respect to the totality of the gross amount of the pension to which the beneficiary is legally entitled.” In cases where this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted such that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” *This limit of 55% of the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since the claimants' arguments do not imply that its application automatically transgresses the 40% barrier with respect to a reference wage under the terms of Article 67 of that international instrument. In that sense, such a reference wage, in the case of Costa Rica, could refer to the average of wages used to calculate the amount of a person's pension, which is consistent with Article 65 of that regulation. It should be noted that the 55% parameter in the challenged laws is related to the gross amount of the pension, whereas the conventional 40% is related to a reference wage, meaning these are limits that operate differently. Consequently, it will be within the scope of the application of the legal norm that it must be assessed whether, in any specific matter, probably concerning very high pensions, the conventional barrier overlaps the legal parameter.* *In addition, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Dirección General de Servicio Civil) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383) subjected to a gradual scale of impact, guarantee more than dignified pensions for older adults. In the foregoing sense, I do not observe arguments demonstrating that the staggered contribution and the imposed burdens are openly unreasonable or affect the core of the pension right, and therefore I dismiss any manifest impact on the human dignity of the beneficiaries.* *Regarding the foregoing, it is not possible to assert that the challenged provisions transgress the international protection afforded to older adults, since not only is the sustainability of the regime being guaranteed, but also a sufficient income to reasonably satisfy a dignified standard of living.* *Thus, I consider that, with the elements provided in the case file, Laws No. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they transgress the special protection afforded to older adults.* *Likewise, even though a transgression of the principle of administrative responsibility is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause harm to individuals, and therefore I prima facie dismiss this claim.* *In relation to the allegation of the non-retroactivity of the norms, the majority extensively cites Judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018. In this regard, I must mention that, certainly, in that resolution I issued a dissenting vote in the following terms:* **“Dissenting vote of Magistrate Rueda Leal.** *With the usual respect, I dissent on three specific issues, as I state below.* ***The first*** *relates to the interpretation made by the majority judgment. According to it, the reform of Article 3 of Law Number 7605 is applicable only to persons who acquired the right to the retirement pension or pension after the entry into force of Law 7858. According to this criterion, applying the cap established in that norm to persons retired prior to its entry into force infringes the principle of non-retroactivity of constitutional Article 34.* *When reading the judgment in question, the relevance of determining the legal nature of the right to a retirement pension or pension stands out. Indeed, contrary to the recommendation provided by the Procuraduría General de la República—which leans towards the acquired rights thesis—the Chamber defined that the retirement pension or pension is a consolidated legal situation and, to that extent, deemed it to fall within the scope of application of the principle of non-retroactivity. Based on this criterion, the Chamber reached the aforementioned conclusion and interpreted the effects of the challenged norm.* *Regarding the nature of the retirement pension or pension, I stated the following in Judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018:* *“…I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension can be modified or limited for reasons of public interest that are supported by technical studies, such as the viability of the regime or fund itself, provided that such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides which one cannot fail to notice the essential differences between the historical moment when it was agreed (year 1952) and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Centro Centroamericano de Población of the UCR, life expectancy at birth in Costa Rica was 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). Meanwhile, the total fertility rate per woman fell from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same sense, according to the World Bank, life expectancy at birth in Costa Rica was 60.58 years in 1960 and reached 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica was 6.5 children in 1960, falling to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).”* *The legal nature of this type of retirement pension or pension—which is not of individual capitalization—derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:* *“ARTICLE 50.- The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. (…)* *ARTICLE 74.- The rights and benefits referred to in this Chapter are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that the law indicates; they shall be equally applicable to all factors concurrent in the production process, and regulated in social and labor legislation, in order to procure a permanent policy of national solidarity.”* &#xa0; *As stated, this constitutional regulation has been developed by the Chamber to outline the principle of solidarity. A good example of that development is the following:* *“III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily leads to the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop fully on his own, but requires the participation of all other members of society to do so. In fact, constitutional Article 50 expressly imposes as one of the fundamental duties of the Costa Rican State the pursuit of an adequate distribution of wealth, an objective that cannot be achieved without the cooperation of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who have less. The foregoing is a fundamental right of persons occupying the lower strata, and a duty of all, mainly those most benefited by the economic system. Wealth in a society is not produced only by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not accrue only in favor of certain social classes. Linking this principle with that of social justice, positivized in Article 74 of the Constitution, according to which persons must collaborate reciprocally in order to preserve the human dignity of all members of the community, we find that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals was above individual interests; it is what is normally known as the social and democratic State of Law. It could thus be affirmed that solidarity among the members of the community is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense the judgments of this Chamber numbers 1441-92, 5125-93)” (Judgment No. 3338-99 of 6:45 p.m. on May 5, 1999).* *Based on these premises, I consider that the analysis of the unconstitutionality action must be conducted from a different perspective than the one adopted by the majority vote. Indeed, I verify that the judgment only partially assessed the legal elements relevant to the decision, since it focused solely on the objection of the claimant, related to the principle of non-retroactivity, without further reflection on the elements necessary for a pension regime to be sustainable and consistent with the principle of social solidarity. In my opinion, a comprehensive and holistic analysis of the legal question raised must be conducted to avoid an inadequate extension of constitutional principles, as occurred in this case with the principle of non-retroactivity. In other words, the Chamber should have first analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.* *In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it was sustainable and respected the principle of social solidarity. In other words, if the legislator conceived an unsustainable regime, without any type of provision to maintain its budgetary equilibrium, or one openly regressive, then such a regime would be unconstitutional specifically regarding such omission for failing to comply with the indicated postulates.* *From the foregoing, I derive that the principle of social solidarity and that of the regime's sustainability are inherent in every social pension regime <span style="text-decoration:underline">from the moment of its creation</span> and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State of Law.* *The need for the regime to be sustainable is not an element optional for the legislator, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis that a pension regime might collapse:* *“For this Tribunal, only in an extraordinary case—a financial debacle of the State or of the respective retirement and pension regime—, duly proven—technique of control of determining facts—, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that does not exist in the present case despite the fiscal crisis the central government is undergoing—a fiscal deficit exceeding 3% of GDP and which could reach 7%—, provided that adequate and effective measures are adopted to reduce said deficit in the short term, it is possible to comply with the constitutional principle of financial equilibrium enshrined in constitutional Article 176.”* *In other words, the majority criterion would accept legislation contrary to the principle of non-retroactivity in the event of a “debacle.” I consider such a contradiction unnecessary because I start from the premise that sustainability is a principle inherent to every solidarity-based pension regime and obligates its participants—all of them—to contribute to its maintenance. Indeed, the sustainability of the regime permeates the legal nature of the pensions and retirement pensions linked to it. The hypothetical case raised by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the retirement pension or pension is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the “debacle,” then all participants in it will see their claims frustrated. Hence, it is feasible—even necessary—to modify the conditions of all retirement pensions or pensions, provided that the modifications are intended to protect the sustainability of the regime and respect the principle of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of their content by a subsequent reform.* *In the sub iudice, the challenged norm sets a cap that only comes into operation when a risk situation for the regime arises, since it would be applicable when “…the income from state, worker, and employer contributions is less than the expenditures derived from the payment of benefits…”. I emphasize that this cap is extraordinary and requires the verification of these technical budgets for its application. Likewise, it is relevant that its application parameter is linked to the sustainability of the pension regime, complying with the postulates explained above.* *Given the legal nature of pensions and retirement pensions, the foregoing considerations lead me to conclude that it is constitutionally valid that, in accordance with the principle of social solidarity, when a pension regime is in a crisis of financial sustainability, to resolve that situation, caps based on technical studies be applied to both those who acquired the right to the retirement pension or pension prior to its entry into force and those who did so subsequently.* *I conclude this argument by noting that constitutional Article 34 does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek the recovery of what was paid justly based on the repealed legislation.* ***The second point*** *relates to Article 3 bis of Law No. 7605, which excepts beneficiaries of Law 7007 and those who postponed their retirement from the application of the cap in Article 3. On this point, I return to the explanation provided above. All participants in a pension regime must contribute to its sustainability; in addition, the established cap is extraordinary and applicable only when the technical conditions indicated above are present; otherwise, such a cap would not apply.* *Starting from these premises, I consider that establishing the exceptions set forth in cited Article 3 bis constitutes a violation of the right to equality in relation to the principle of social solidarity. No legally plausible justification is observed for exempting the subjects contemplated therein from their duty to contribute to the sustainability of the fund for the sake of social solidarity. I reiterate that the sustainability of the retirement pension or pension regime rests on all its participants. If a regime is unsustainable from a financial point of view, it becomes unconstitutional for certain beneficiaries not to contribute, without some valid reason to justify it. Therefore, I grant the action in that respect.”* *In the sub examine, the majority again recognizes that the regulation can have retroactive effects in the event of an economic “debacle”; however, as I maintained in the dissenting vote cited supra, sustainability is a principle inherent to every solidarity-based pension regime and obligates all its participants to contribute to its maintenance. This is the principal aspect to consider when analyzing norms such as those challenged here.* *If, according to the Ministerio de Hacienda, out of every 100 colones, 90 are financed through taxes or debt, the special pension regimes charged to the National Budget suffer from clear financial sustainability problems. In addition, if that regime becomes insolvent or if the State loses its capacity to meet its obligations, then all participants in it will see their claims frustrated. Hence, it is feasible to levy charges on the retirement pensions or pensions that have the greatest benefits and, even, to modify their conditions, provided that the adjustments are intended to protect the sustainability of the regime and respect the principle of reasonableness and proportionality in relation to social solidarity.* *In the sense expressed, if a pension financed largely or entirely with public funds is unreasonably high (with disproportionate amounts and increments), it is justifiable that through laws, the adjustment of such benefits be sought in order to safeguard the right to a dignified existence for **all** pensioners. As long as the imposition of contributions and burdens on retirement pensions and old-age pensions respects the percentage established conventionally (Article 67 of ILO Convention 102), a priori there would be no transgression of the Law of the Constitution. It must be taken into account that, as the majority of the Chamber accepts, the country's economic situation is complicated and the sustainability of the pension regime is compromised, and therefore, in consideration of the principle of social solidarity, it is essential that those who are in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood from the standpoint of solidarity towards the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate situations of privilege in favor of a group of people. Therefore, precisely, it is not considered contrary to the principle of non-retroactivity to increase the contribution amounts of retired or pensioned persons, provided that the guarantees and limits set forth in this dissenting vote are respected.* *Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights relating to the right of persons to lead a dignified life in their old age, and considers that the 40% percentage, contemplated in Article 67 of ILO Convention 102 itself, is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectations. However, as I indicated supra, the norm of the international instrument applicable to the specific case is precisely that Article 67, endorsed by the ILO, not Article 71.2, as is forcedly interpreted by the majority in the main judgment. Likewise, it is worth reiterating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2,602,500.00 in the first half of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No.* ...o 9380 as Law No. 9383) subjected to a gradual scale of impact on larger pensions, guarantee more than dignified pensions for older adults.

Finally, even though there are ILO recommendations suggesting half the salary as a pension in cases where thirty effective years of contributions are accredited, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose obligatory nature is unquestionable) does expressly contemplate a percentage that must be respected for the purposes of a pension in old-age cases (40% of a reference salary), hence the direct application of the international instrument is appropriate in the sub lite.

Based on the foregoing, I declare the actions without merit with respect to Laws No. 9380 and 9383.” (…)”.

Additionally, I clarify that, in judgment No. 2024006250 of 4:30 p.m. on March 6, 2024 (also mentioned by the majority as support for the declaration of unconstitutionality), I dissented and declared the actions inadmissible, so I did not rule on the alleged unconstitutionality of Law No. 9796.

Now, regarding this action, I observe that the Chamber, by majority, maintains the criterion of applying numeral 71.2 of ILO Convention No. 102 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of ordinal 67 of the international instrument which specifically regulates matters concerning the limitations that can be imposed on pensions. Note also that article 71.2 refers to the percentage of insurance contributions payable by employees in relation to the total resources allocated to that protection; that is, such provision regulates "employees" (the economically active population) and not "pensioners or retirees." Ergo, consistent with the line I have maintained, I do not observe any unconstitutionality in ordinal 5 of Law No. 9796, since it was not demonstrated that the barrier of 40% of a reference salary, established in ordinal 67 of ILO Convention C102, is automatically exceeded. Observe that the 55% parameter of the questioned article refers to the gross amount of the pension, while the conventional 40% refers to a reference salary, so it falls within the scope of the application of the legal norm to assess whether, in any specific matter, the barrier established in the international instrument supersedes the parameter set in the legislation. Consequently, I do not observe arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the pension right, so prima facie I dismiss any violation of the rights to retirement and social security, as well as the principle of non-confiscation.

On the other hand, in attention to the provisions set forth in resolution No. 2021-11957 of 5:00 p.m. on May 25, 2021, the declaration without merit of the claims raised regarding double taxation is based, as well as the accused transgression of the principles of non-retroactivity; legal certainty; equality; reasonableness and proportionality; and solidarity. In this regard, I must mention that on that occasion (except regarding the legislator's omission to include a gender perspective) I agreed with the dismissal arguments set forth by the majority (reason for which I agree with the claims declared without merit in this action); however, I must specify that I recorded the following note in that judgment:

“Note by Judge Rueda Leal. In the sub iudice, I clarify that, separately from my dissenting vote, although I share the Majority's criterion regarding dismissing the claims formulated by the complainant parties, it seems fundamental to set forth the following particular precisions regarding the reasoning to arrive at such a conclusion.

1- Regarding judgment No. 2018005758 of 3:40 p.m. on April 12, 2018, cited in the main vote.

This resolution is constantly cited in the main pronouncement of this process, thus I consider it opportune to point out what I recorded on that occasion:

“XXII.- Note by Judge Rueda Leal. Concerning the publicity of the substitute text of September 13, 2016, I concur with the majority vote, since in accordance with reiterated constitutional jurisprudence – which I entirely deem inappropriate to exclude (2017-019636, 2017-003262, 2016-018351, 2016-012413, 2015-001240, 2014-018836, 2012-013367, 2014-003969, 2013-013344, 2012-017705. 2012-015840, 2012-002675, 2011-015968, 2011-015655, 2011-014966, 2011-012611, 2011005274, 2011-005268, 2011-000992, 2011-000905, 2010-016202, 2010-012026, 2010-007630, 2000-010136, among many other judgments) –, facultative consultations of constitutionality are restricted to analyzing what is specifically questioned by the consultants, without the Chamber, in this procedural avenue, extending constitutional control motu proprio to other topics. Thus, regarding the claim raised, the reasoning outlined in this pronouncement responds to the cited jurisprudential line and proves correct, which I subscribe to.

On the other hand, I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited in the face of public interest reasons that are supported by technical studies, such as the very viability of the regime or fund, as long as such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides the fact that one cannot fail to note the essential differences between the historical moment when it was agreed upon (year 1952), and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered in the interest of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center of the UCR, life expectancy at birth in Costa Rica is 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman dropped from 6.46 in 1952 to 1.83 in 2010. ( http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html ). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica is 60.58 years in 1960 and reaches 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica is 6.5 children in 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR )”.

2.- Regarding the unsustainability of the Pension and Retirement Regime of the Judicial Branch and the need to reform it.

In this regard, I note that, faced with the imminent insolvency problem of the Pension and Retirement Regime of the Judicial Branch, the legislator was obliged to take the necessary measures to guarantee its sustainability. Likewise, it is fundamental to consider that the principles of sustainability and social solidarity are inherent in every social pension regime, so they must be weighed when assessing the constitutionality of the provisions that reformed the regime. In that sense, I reiterate my dissenting vote to judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018 (which I also cited in my dissenting vote to judgment No. 2020019274 of 4:30 p.m. on October 7, 2020):

“Dissenting vote of Judge Rueda Leal. With the customary respect, I dissent on three specific points, as I express below.

Regarding the nature of the pension or retirement, I stated the following in judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018:

“…I clarify that the right to a pension is a subjective right conditioned by the sustainability of the pension regime. The right to a pension may be modified or limited in the face of public interest reasons that are supported by technical studies, such as the very viability of the regime or fund, as long as such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides the fact that one cannot fail to note the essential differences between the historical moment when it was agreed upon (year 1952), and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitely be considered in the interest of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center of the UCR, life expectancy at birth in Costa Rica is 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). For its part, the total fertility rate per woman dropped from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica is 60.58 years in 1960 and reaches 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica is 6.5 children in 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” The legal nature of this type of retirement or pension – which is not one of individual capitalization – is derived from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:

“ARTICLE 50.- The State shall procure the greatest well-being for all the country's inhabitants, organizing and stimulating production and the most adequate distribution of wealth. (…)

ARTICLE 74.- The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others derived from the Christian principle of social justice and indicated by law; they shall be equally applicable to all factors concurrent to the production process, and regulated in social and labor legislation, in order to procure a permanent policy of national solidarity.” As stated, this constitutional normative has been developed by the Chamber to delineate the principle of solidarity. A good example of that development is the following:

“III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily entails the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he develops. The Political Constitution of 1949 starts from the notion that the human being cannot develop integrally by himself alone, but rather requires the participation of all other members of society. In fact, constitutional numeral 50 expressly imposes as one of the fundamental duties of the Costa Rican State the pursuit of an adequate distribution of wealth, an objective it cannot achieve without the concurrence of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their possibilities, for the benefit of those who have less. The foregoing is a fundamental right of people occupying lower strata, and a duty for all, mainly those most benefited by the economic system. Wealth in a society is not produced only by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not solely yield in favor of certain social classes. Relating this principle to that of social justice, positivized in ordinal 74 of the Constitution, according to which people must collaborate reciprocally in order to preserve the human dignity of all members of the community, we have that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals was above individual interests; this is what is normally known as a social and democratic State of Law. It could thus be affirmed that solidarity among the members of the collectivity is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense the judgments of this Chamber numbers 1441-92, 5125-93)” (Judgment No. 3338-99 of 6:45 p.m. on May 5, 1999).

Based on these premises, I consider that the analysis of the action of unconstitutionality must be carried out from another perspective, different from the one accepted by the majority vote. Effectively, I verify that the judgment only partially assessed the legal elements relevant to the decision, since it solely concentrated on the reproach of the complainant party, related to the principle of non-retroactivity, without further reflection on the elements necessary for a pension regime to be sustainable and in accordance with the principle of social solidarity. In my opinion, a comprehensive and inclusive analysis of the legal issue raised must be carried out, in order to avoid an inadequate extension of constitutional principles, as happened in this case with the principle of non-retroactivity. In other words, the Chamber should first have analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.

In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it is sustainable and respects the principle of social solidarity. In other words, if the legislator conceived an unsustainable regime, without some type of provision to maintain its budgetary balance, or overtly regressive, then such regime would be unconstitutional specifically regarding such omission for failing to comply with the indicated postulates.

From the above, I derive that the principle of social solidarity and that of the regime's sustainability are inherent in every social pension regime from the moment of its creation and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the Social State of Law.

The need for the regime to be sustainable is not an element available to the legislator, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis that a pension regime could collapse:

“For this Tribunal, only in an extraordinary case – a financial debacle of the State or the respective retirement and pension regime –, duly proven – technical control of determining facts –, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that is not present in this specific case despite the fiscal crisis through which the central government is passing – fiscal deficit exceeding 3% of G.D.P. and which could reach 7% –, since if adequate and effective measures are adopted to reduce the cited deficit in the short term, it is possible to fulfill the constitutional principle of financial balance enshrined in constitutional numeral 176.” In other words, the majority criterion would indeed accept legislation contrary to the principle of non-retroactivity in the event of a "debacle." I consider such a contradiction unnecessary because I start from the premise that sustainability is a principle inherent to every solidarity-based pension regime and obligates its participants – all of them – to contribute to its maintenance. Effectively, the sustainability of the regime permeates the legal nature of the pensions and retirements linked to it. The hypothetical case posed by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the pension or retirement is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the "debacle," then all participants in it will see their claims frustrated. Hence, it is feasible – even necessary – to modify the conditions of all pensions or retirements, provided that the modifications are intended to protect the sustainability of the regime and respect the principles of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of content by a subsequent reform.

I end this argument by noting that constitutional article 34 does protect the patrimonial rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek the repetition of what was paid justly based on the repealed legislation.” 3.- About considerando XV.

In relation to the defect of not having suspended the bill's processing for the period of eight business days according to the special procedure, I warn that I certainly subscribed to judgment No. 2012004621 of 4:00 p.m. on April 10, 2012, in which "The duty of the various legislative instances to adhere, jealously and scrupulously, to the specially designed procedure (...) Consequently, faced with a special and rapid legislative procedure, the previously established periods, stages, and requirements must be the object of a restrictive and rigorous interpretation, and the margin of admissible flexibility when compared to ordinary procedures, through extensive interpretations, decreases notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by a qualified majority.” (Highlighting does not correspond to the original). Precisely, the fact that the referred margin decreases notably does not mean there is no margin at all.

Now, in the sub lite, according to the reasoning of the majority vote, the defect is not of such magnitude as to support a lack of constitutional relevance, with which I agree, since, I reiterate, even in the special procedures in question, although with less room, constitutional review always makes possible a distinction between substantial defects and those that are not.

**4.- With respect to consideranda XLV, XLVI y XLVII.** Regarding the nature of the special, solidarity and redistributive contribution, the final wording of the majority vote cites case law according to which it is not equivalent to a tax, and concludes that it is a constitutionally valid limitation on the right to retirement, arising from the social character of that right. It then mentions that it is not a tax, but a parafiscal charge. It also indicates that, as a contribution to social security, it is a parafiscal contribution imposed by the State in the exercise of its power of imperium, which can only be created through a formal law. Likewise, it points out that it is a tax destined for an economic and social purpose.

In this regard, I must mention that, for the purposes of this action of unconstitutionality, my position is that the special, solidarity and redistributive contribution is of a parafiscal nature and constitutes a type of tax. Precisely, it is obligatory payment for those who fall within the assumption of the norm and, in accordance with numeral 236 bis of the Ley Orgánica del Poder Judicial, the resources obtained from it are entered into the Fondo de Jubilaciones y Pensiones del Poder Judicial, that is, into the same fund to which the taxpayers belong. Furthermore, this type of contribution must be legally enabled, so the Asamblea Legislativa is competent to establish the tax and define its elements.

On the other hand, although it is alleged that there is double taxation with the general contribution and the special, solidarity and redistributive contribution, I clarify that the latter progressively taxes only the highest pensions and retirement benefits, with which it is intended to give sustainability to the regime to which they belong. In that sense, I consider that a priori it is not a case of double taxation, but rather the establishment of an additional tax burden on those with greater economic capacity. Although both figures form part of the income of the Fondo de Jubilaciones y Pensiones del Poder Judicial, it is no less true that they are based on different assumptions: on the one hand, there is the general contribution of the pensioner or retiree to the regime and, on the other, the contribution that must be paid by those with the highest pensions. In this regard, numeral 71.1 of convention C102 of the ILO -Convenio sobre la Seguridad Social (norma mínima)- establishes that the cost of the benefits granted in application of that convention and the administrative expenses thereof "shall be collectively financed by way of contributions or taxes, or by both means jointly, in a manner which avoids hardship to persons of small means and takes into account the economic situation of the Member and of the categories of persons protected". In other words, that international instrument enables the financing of the regime by two means simultaneously, so that those with lower incomes are not burdened with overly onerous charges. Ergo, it is appropriate, besides the general contribution of workers and pensioners, to impose a parafiscal tax burden destined to tax only the highest pensions and retirement benefits that were granted in light of prior, much more beneficial conditions.

In addition, I must clarify that, for the purposes of varying the conditions of a pension regime and assigning special contributions to correct some situation of insolvency, it is indeed necessary to demonstrate, through technical studies, the insolvency thereof and the suitability of the corrective measures. The foregoing is essential, unless it concerns benefits provided for in rules that are absolutely and manifestly unconstitutional, in which case the magnitude of the defect merits the suppression of the provision without recognizing rights. In this sense, legal provisions that are blatantly unlawful from their base cannot be perpetuated, for example, such as a lifetime pension to the sons and daughters of legislators or receiving absurd and exorbitant benefits. In these latter assumptions, I have affirmed that their effects should precisely be considered as non-existent for the legal system from the very moment of their creation. On this topic, I gave different reasons in judgment No. 2020019274 of 16:30 hours on 7 October 2020, in these terms:

"**V.- Different reasons regarding the substantive claims related to laws No. 9381 and 9388.** Prior to addressing the arguments on the merits, it is important to be clear that these norms eliminate the 30% annual increase that a restricted group of pensioners had been enjoying, and replace it with one based on the increase in the cost of living. Precisely, the crux of the matter consists in defining whether such a reform is in accordance with Constitutional Law.

In the first place, I consider that the 30% annual increase enjoyed by some persons under the regime known as Hacienda-Diputados, in itself signifies a gross and impossible-to-justify abuse, an injury to the constitutional order of such overwhelming magnitude, that from its very genesis it constitutes what I call "a non-existent legal norm" for reasons of unconstitutionality, in mutatis mutandi application of the doctrine of the non-existent legal act for reasons of legality, a position held by a relevant sector of legal science.

As occurs in the sub examine, thanks to the particular gravity of the violation of the constitutional order with respect to the especially excessive privilege conferred upon a determined group (nothing less than a 30% annual increase in pensions without any consideration of the state of the economy and the real value of the conferred pension), I consider that we are not facing the mere nullity of a regulation due to a common jurisdictional declaration of unconstitutionality, but rather that, in this extraordinary situation, the re-establishment of the constitutional order demands a much more drastic action than simple nullity. Non-existence designates a profoundly gross unconstitutionality of the challenged norm (even, in another process it could refer to an act), an extreme degree of nullity for reasons of unconstitutionality from which the absence of an essential element is noted at the very moment of the norm's emergence that is the object of the action.

Precisely, due to that extreme defect in the very genesis of the norm, it is inappropriate to preserve the effects derived from the manifestly unconstitutional legal provisions, unreasonable and lacking any justification, such as the economic favors granted against the most basic elements of social justice and the sustainability of a pension regime. These are provisions that are blatantly unconstitutional at their base, whereby the excessive privileges granted by them must be considered as legally non-existent.

The foregoing becomes even more evident and notorious in view of the harsh economic reality of the country and the conditions of the other regimes. Hence, a legal reform that changes that fixed revaluation method for one sustained on objective criteria, such as the increase in the cost of living, not only corrects an excessive and definitively unconstitutional privilege due to violation of the principle of sound management of public funds, but also contributes to social justice.

Following the same line as my dissenting vote in judgment No. 2018-19030 of 17:15 hours on 14 November 2018 (which I cited supra) and the reasoning I developed above regarding the principle of non-retroactivity, I consider that sustainability is a principle inherent to any solidarity-based pension regime. Hence, I consider constitutionally valid, in accordance with the principle of social solidarity, the imposition of burdens and the modification of the conditions of the highest pensions or retirement benefits, provided that the adjustments have the purpose of safeguarding the sustainability of the pension regime and, in addition, both the principle of reasonableness and proportionality, and the fundamental right to human dignity of older adults are respected. Note that, as a matter of principle, it is valid that, through a mechanism for increasing a pension or retirement benefit, the beneficiary's pension maintains its value in real terms in relation to purchasing power and the vicissitudes over time, but not that the pension or its increase methodology serve as an instrument to unjustifiably and capriciously enrich a few persons.

In the sub lite, it cannot be unreasonable or disproportionate to eliminate a grotesque and excessive privilege such as was the 30% annual increase. On the contrary, what is entirely unreasonable and disproportionate is to safeguard an increase of such magnitude for a restricted group of persons. It is important to emphasize that, concerning the pension amounts, as I indicated in the previous considerando, the legislature, through other norms, established minimums exempt from the special contributions and a gradual scale of progressive impact, which, from my perspective, guarantees more than dignified amounts for older adults, especially in the cases of those who benefited from 30% annual increases over time and have the highest pensions. In that sense, if the laws that modify the legal situations of the beneficiaries safeguard the dignity of the person while being proportional, reasonable, and justified, a supposed immutability of the legal order by resorting to consolidated legal situations becomes unsustainable, since these must yield before the principles of social solidarity and sound management of public funds. Based on the foregoing, the legislature has freedom to regulate the readjustment mechanisms for the pensions of regimes that are in a sustainability crisis or grant openly disproportionate and grotesque privileges".

Likewise, I must specify that, as I recorded in my dissenting vote to considerando XLI of this pronouncement, the 50% bounded by the Majority as a maximum limit of contributions and deductions was based on a forced interpretation of numeral 71.2 of convention C102 of the ILO, since article 67 of that international instrument is the one that applies to pension reductions.

In this sense, ordinal 71.2 regulates:

"2. The total of insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their wives and children." To determine whether this condition is met, all benefits provided by the Member, in application of this Convention, may be considered together, with the exception of family benefits and, in the case of employment injury (accidentes del trabajo) and occupational diseases (enfermedades profesionales), if the latter fall under a special branch." For its part, Article 67 of the convention provides:

"Article 67 With respect to any periodic payment to which this article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or a rule set by the competent public authorities, in accordance with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed substantial sums prescribed or fixed by the competent authorities, in accordance with prescribed rules; (c) the total of the benefit and the other family resources, after deducting the substantial sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and decent living conditions, and shall not be less than the amount of the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of benefits paid, for the part in question, exceeds by at least 30 percent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

SCHEDULE ANNEXED TO PART XI.—PERIODIC PAYMENTS TO STANDARD BENEFICIARY:

Consequently, as can be observed from reading the cited articles, the final wording of the Majority unnecessarily changes the legal-normative meaning of Article 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of Article 67 of the international instrument, which specifically regulates the limitations that may be imposed on pensions. In addition, it should be noted that Article 71.2 refers to the percentage of insurance contributions borne by wage earners in relation to the total resources allocated to that protection; that is, this rule regulates "wage earners" (the economically active population), but not "pensioners or retirees." Based on the foregoing, consistent with the line I have been maintaining, it is not evident that Articles 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40 percent barrier of a reference wage, contemplated in Article 67 of ILO Convention C102. Note, furthermore, that the 55% limit set in Articles 236 and 236 bis of the Organic Law of the Judicial Branch is related to the gross amount of the pension, while the conventional 40% is related to a reference wage; therefore, it is in the context of the application of the legal rule where it must be assessed whether, in any specific matter, the barrier contained in the international instrument supersedes the parameter provided in the legislation.

Based on the above, I disagree with the assertion in the final Majority opinion that the contribution is only confiscatory insofar as it exceeds 50% of the charges a person must bear on their pension or retirement, since, as I indicated supra, I believe the parameter is a different one and its automatic and evident transgression is not evident from the content of Articles 236 and 236 bis of the Organic Law of the Judicial Branch.

5.- Regarding recitals L and LI.

In these recitals, it is asserted that contributions cannot exceed 50% of the gross amount of the pension, in accordance with the provisions of judgment No. 2020-19274; however, regarding this point, I reiterate my position that the 55% cap regulated in Articles 236 and 236 bis of the Organic Law of the Judicial Branch is not unconstitutional per se. There, I also addressed the possibility of imposing, in addition to the mandatory contribution to the scheme, a special additional contribution on the highest pensions. Therefore, I refer to the reasoning set out in the previous section concerning these issues.

Now, it is important to mention that Law No. 9544, by adding Article 236 bis, stipulated that the special contribution applied to the excess over ten base salaries of the lowest-paid position in the Judicial Branch (at the time that law came into force, on pensions exceeding ¢4,138,000.00 according to the salary index, see https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).

However, it is worth clarifying that subsection a) of this provision was subsequently amended by Law No. 9796 of December 5, 2019, and established the contribution on the excess of the sum of six base salaries of the lowest-paid position in the Judicial Branch (as of the first half of 2021, on pensions exceeding ¢2,602,800.00 according to the salary index <a href="https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial" style="text-decoration:none"><span style="font-family:'Times New Roman'; font-style:italic; text-decoration:underline; color:#0563c1">https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial</span></a><span style="font-family:'Times New Roman'; font-style:italic">).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic; -aw-import:spaces">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">In addition,</span><a name="_Hlk84923435"></a><span style="font-family:'Times New Roman'; font-style:italic"> Law No. 9544 regulated the application of the special contribution in a staggered manner: “a) On the excess over the cap established in Article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess. b) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess over the previous margin, they shall contribute fifty-five percent (55%).”</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Hence, the exempt amount and the staggered contribution imposed on pensions exceeding four million colones guarantee more than dignified sums for meeting the needs of pensioners and retirees, including older adults. Likewise, I consider that the special contribution is progressive and gradual on the highest pensions, without this, combined with other contributions, charges, and deductions, being able to exceed 55% of the total gross amount of the pension. In this regard, not only was it not demonstrated that the pension amount prevented pensioners from living with dignity or that it was insufficient, but further, it falls within the scope of application of the legal norm to assess whether, in any specific case, the barrier set forth in the international instrument (paragraph 67 of ILO Convention C102) takes precedence over the parameter established in legislation.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">I likewise reiterate that the special contribution imposed on the highest pensions constitutes a measure consistent with the principle of social solidarity and, moreover, is reasonable in light of the imminent insolvency problem facing the Pension and Retirement Regime of the Judicial Branch.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Lastly, I do not consider that the deduction of five per thousand (5 per 1000) from salaries and pensions intended to finance the operation of the Administrative Board of the Retirement and Pension Fund of the Judicial Branch (Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial) is openly disproportionate or unreasonable. In the same manner, if any party considers that the maximum amount of contributions, assessments, and deductions is exceeded, it may file the corresponding claims so that these are adjusted.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">6.- Regarding Considerando LIV.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Concerning this considerando, I must emphasize that Article 34 of the Constitution enshrines the principle of non-retroactivity (irretroactividad) and the protection of acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas):</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">“ARTICLE 34.- No law shall have retroactive effect to the detriment of any person, or of their acquired property rights or consolidated legal situations.”</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">In relation to what is regulated in this article, the Chamber stated in Judgment No. 2765-97 of 3:03 p.m. on May 20, 1997,</span></p><p style="margin-top:0pt; margin-left:28.4pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">“The concepts of ‘acquired rights’ and ‘consolidated legal situations’ appear closely related in constitutional doctrine. It can be asserted that, in general terms, the former denotes a consummated circumstance in which something—material or immaterial, be it a previously alien good or a previously non-existent right—has entered (or affected) the person’s patrimonial sphere, such that the person experiences an advantage or verifiable benefit. For its part, a ‘consolidated legal situation’ represents not so much a patrimonial gain, but a state of affairs fully defined in terms of its legal characteristics and effects, even if these have not yet been exhausted. What is relevant about a consolidated legal situation, precisely, is not whether those effects still persist or not, but that—by virtue of a legal mandate or a judicial decision that has so declared—a clear and defined rule has emerged into legal life, connecting a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person’s situation is given by a logical proposition of the type ‘if…, then…M, meaning: if the conditioning fact has occurred, then the ‘consolidated legal situation’ implies that the conditioned effect must necessarily also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects—rendering it intangible—the situation of whoever obtained the right or enjoys the situation, for reasons of equity and legal certainty.”</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">In this regard, it seems important to me to clarify that the sums received before the entry into force of Law No. 9544 do constitute acquired rights and, in fact, the challenged norms do not affect them, as they have already entered the legal-patrimonial sphere of the pensioners. However, it is improper to maintain that the pensions they have received constitute an acquired right to receive the same amount in future months, since they are not consummated circumstances and, evidently, have not yet entered the person’s patrimonial sphere.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Now, as for the alleged violation of consolidated legal situations, although, as a matter of principle, the conditions under which individuals were pensioned or retired must be respected, this does not mean that progressive tax charges cannot be imposed on the highest benefits aimed at correcting a situation of insolvency of the regime and thereby contributing to its sustainability. Likewise, the change in conditions for active employees to opt for retirement is also not illegitimate, because they merely have an expectation of pension or retirement, except when they are close to acquiring the right (within the following 18 months, as endorsed by the Chamber’s jurisprudence and indicated in Considerando LXIX of this judgment).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">7.- As for Considerandos LV, LVI, LVII, and LVIII.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">These considerandos address the claims of the plaintiff parties wherein they allege that the application of Articles 236 and 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) to retired older adults and beneficiaries of the Pension and Retirement Regime of the Judicial Branch (Régimen de Jubilaciones y Pensiones del Poder Judicial) is abusive and arbitrary, since it aggravates their socioeconomic conditions and has led to an abrupt reduction in their income, thereby violating national and international regulations concerning the protection of older adults, their right to quality of life, and to enjoy a dignified old age.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Regarding these points, I refer to the considerations developed by me in the preceding points relating to general and special contributions, as well as other charges. I reiterate that the 50% limit set by the Majority as the maximum ceiling for contributions and deductions was based on a strained interpretation of paragraph 71.2 of ILO Convention C102, since Article 67 of that international instrument is the one applicable to reductions of pensions. In this sense, it is not evident that Articles 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the barrier of 40% of a reference wage, contemplated in paragraph 67 of ILO Convention C102. Note, moreover, that the limit of 55%, set in Articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross pension amount, while the conventional 40% is related to a reference wage; therefore, it is within the scope of application of the legal norm where it must be assessed whether, in any specific case, the barrier contained in the international instrument takes precedence over the parameter set forth in legislation.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Moreover, the claim that the challenged provisions violate the international protection enjoyed by older adults lacks grounding, since not only are measures being taken to safeguard the sustainability of the regime, but also, in principle, pensioners and retirees are being guaranteed a sufficient income. In this sense, I reiterate that the amount exempt from the special contribution and its staggered assessment on pensions exceeding four million colones provides sums more than sufficient for meeting the needs of an older adult person.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">8.- Regarding Considerando LXX.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Concerning my criterion for considering the claim for a declaration of unconstitutionality by connection (declaratoria de inconstitucionalidad por conexidad) of Law No. 9796 of December 5, 2019, to be improper, I limit my argument to the reasoning set forth in the majority vote, with the exception of what is stated in the last paragraph, since the failure to meet the prerequisite of the cited Article 89 constitutes a more than sufficient reason to dismiss this aspect of the action.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">9.-</span><span style="font-family:'Times New Roman'; font-style:italic"> </span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">Concerning Considerando LXXX.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">In relation to this considerando, I clarify that determining whether or not there were changes to the employment contracts of Judicial Branch employees is a matter appropriate for the ordinary jurisdiction, but not for an unconstitutionality action (acción de inconstitucionalidad)</span><span style="font-family:'Times New Roman'">."</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="width:36pt; display:inline-block">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'">Therefore, based on such precisions made in my note and without sharing anything that contradicts it, or that is based on Judgments Nos. 2020-19274 of 4:30 p.m. on October 7, 2020, and 2024006250 of 4:30 p.m. on March 6, 2024, I agree with the dismissal of the alleged violations of double taxation (doble imposición tributaria), as well as the principles of non-retroactivity; legal certainty (seguridad jurídica); equality (igualdad); reasonableness (razonabilidad) and proportionality (proporcionalidad); and solidarity (solidaridad). Finally, I share the reasoning set forth in the judgment of this action, regarding the plaintiff's lack of argumentation not only on the purported violation of the principles of solidarity and of reasonableness and proportionality, but also concerning the alleged lack of technical studies. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:21pt"><span style="font-family:'Times New Roman'; font-size:14pt; font-weight:bold">Por tanto:</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; text-align:justify; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="width:0.6pt; text-indent:0pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'"> By majority, the unconstitutionality action is partially granted (declara parcialmente con lugar la acción de inconstitucionalidad). Consequently, </span><span style="font-family:'Times New Roman'">the contribution percentage and the special contribution established in paragraph 5 of Law No. 9796 are annulled to the extent they exceed 50% of the gross pension amount corresponding to the retired person or pensioner of the Judicial Branch regime</span><span style="font-family:'Times New Roman'">. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), to avoid serious disruptions to security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, from the month following notification of this judgment, the Tax Administration must make the corresponding adjustment in accordance with this judgment, such that the tax burden borne by the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner. In all other respects, the unconstitutionality action is dismissed. Judge Rueda Leal issues a dissenting vote and dismisses the action in its entirety, inasmuch as, </span><span style="font-family:'Times New Roman'">according to the express text of Article 67 of ILO Convention No. 102 of 1952 titled 'Social Security (Minimum Standards) Convention', the pension or retirement may be reduced as long as 40% of a reference wage is respected, which is not shown to be automatically and evidently violated by the content of Article 5 of Law No. 9796. </span><span style="font-family:'Times New Roman'">Let this ruling be communicated to the Legislative and Judicial Branches, as well as to the Administrative Board of the Retirement and Pension Fund of the Judicial Branch (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial). Let this ruling be noted in the Official Gazette La Gaceta and published in full in the Judicial Bulletin. Notifíquese.-</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">Fernando Castillo V. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">Presidente</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; text-align:center; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">Paul Rueda L.</span><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:'Times New Roman'; font-weight:bold">Luis Fdo. Salazar A.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">Jorge Araya G.</span><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:'Times New Roman'; font-weight:bold">Aracelly Pacheco S. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; widows:2; orphans:2; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">Huberth Fernández A.</span><span style="font-family:'Times New Roman'; font-weight:bold; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:'Times New Roman'; font-weight:bold">Ana Cristina Fernández A.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:21pt"><span style="font-family:'Times New Roman'; font-size:14pt; -aw-import:ignore">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:19.5pt"><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0;</span></p><div style="-aw-headerfooter-type:footer-primary; clear:both"><p style="margin-top:0pt; margin-bottom:0pt; text-align:right; widows:2; orphans:2; font-size:12pt"><span style="-aw-field-start:true"></span><span style="-aw-field-code:'PAGE'"></span><span style="-aw-field-separator:true"></span><span style="font-family:'Times New Roman'">1</span><span style="-aw-field-end:true"></span></p><p style="margin-top:0pt; margin-bottom:0pt; widows:2; orphans:2; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:ignore">&#xa0;</span></p></div></div><hr style="width:33%; height:1px; text-align:left; -aw-footnote-numberstyle:0; -aw-footnote-startnumber:1; -aw-footnote-type:0" /><div id="_ftn1" style="-aw-footnote-isauto:0"><p style="margin-top:0pt; margin-bottom:0pt; font-size:12pt"><a href="#_ftnref1" style="text-decoration:none"><span style="font-family:'Times New Roman'; font-size:8pt; vertical-align:super; color:#000000">[1]</span></a><span style="font-family:'Times New Roman'"> </span><span style="font-family:'Times New Roman'; font-size:10pt">As will be explained </span><span style="font-family:'Times New Roman'; font-size:10pt; font-style:italic">infra</span><span style="font-family:'Times New Roman'; font-size:10pt">, this percentage should be read as 50%, as provided by this Chamber in Voto No</span><span style="font-family:'Times New Roman'; font-size:10pt">. 2021-11957 of 5:00 p.m. on May 25, 2021. </span></p><p style="margin-top:0pt; margin-bottom:0pt; font-size:12pt"><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; font-size:12pt"><span style="font-size:8pt; vertical-align:sub; -aw-import:ignore">&#xa0;</span></p></div></body></html>"

Revisión del Documento *CO* Res. Nº 2024028000 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las once horas y cero minutos del veintiséis de setiembre de dos mil veinticuatro.

Acción de inconstitucionalidad interpuesta por JOHNNY MEJÍAS ÁVILA, cédula de identidad No. 9-044-592, en su condición de Presidente del Consejo de Administración y ERIC ENRIQUE LORÍA CAMPOS, cédula de identidad No. 1-811-0019, en su condición de Gerente General con facultades de apoderado generalísimo sin límite de suma, ambos de la Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), cédula de persona jurídica No. 3-004-045564, en contra de lo dispuesto en los artículos 1°, 2, inciso d); 3; 4, inciso b); 5 y 7; todos de la Ley No. 9796, de 5 de diciembre de 2019, denominada “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, y, consecuentemente, lo dispuesto en el artículo 236 bis, inciso a), de la Ley Orgánica del Poder Judicial.

Resultando:

1.- Por memorial presentado en la Secretaría de la Sala el 30 de abril de 2020, los accionantes solicitan la declaratoria de inconstitucionalidad de los artículos 1°, 2, inciso d); 3; 4, inciso b); 5 y 7, todos de la Ley No. 9796 del 5 de diciembre de 2019, denominada “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, mediante la cual, a su vez, se reformó el inciso a), del artículo 236 bis de la Ley Orgánica del Poder Judicial. En primer término, explican que se encuentran legitimados para interponer la acción, pues lo hacen en representación de los asociados activos y pensionados de la cooperativa (COOPEJUDICIAL R.L.); es decir, en defensa de los intereses de dicha colectividad (artículo 75, párrafo segundo, de la Ley de la Jurisdicción Constitucional). Como antecedentes, explican que el Fondo de Pensiones de la Corte Suprema de Justicia es autónomo y data del año 1939, por lo que, incluso, es anterior al régimen de pensiones de la CCSS. Señalan que el aporte del patrono es lo mismo que aporta cualquier patrono en un régimen tripartito. Afirman que no se trata de un régimen con cargo al presupuesto nacional, es auto sustentable y, al día de interpuesto este asunto, no tiene déficit financiero alguno. Reiteran que se trata de un régimen autónomo y autosuficiente. Explican que solamente hay 41 pensiones de más de cinco millones de colones. Los funcionarios cotizan cuatro veces más que el régimen de la CCSS durante toda su vida laboral y, de pensionados, cotizan el 11% de la jubilación, por lo que, bien administrado, es difícil que zozobre. Indican que el 70% del grueso de las pensiones no superan el millón y medio de colones (pues oscilan entre los 350.000,00 colones y el 1.000.000,00 de colones). Por ende, no es cierto que existan pensiones de lujo en el Poder Judicial. El jubilado del Poder Judicial contribuye con el 13% más el 5.5% a la CCSS, más impuesto de renta. Afirman que ningún otro jubilado de algún otro régimen aporta hoy más que el jubilado judicial. Sin embargo, indican que con la ley del combo fiscal debe aportar el 35%, por lo que se trata de un 75% de la jubilación, lo cual significa pauperizar las pensiones existentes, pues se les quita más del 60% de la jubilación lo que es confiscatorio (aun cuando la ley lo haya limitado a un 55%). Además, se debe aportar con 5 colones por cada mil para sostener el costo de la Junta Administradora del Fondo. Señalan que con esto se ataca al fondo y se propone una contribución que resulta inconcebible e insostenible. Agregan que igualmente se violentan los derechos consolidados de los jubilados, así como el derecho a la jubilación. Se refieren a las normas impugnadas. Explican que la Ley Orgánica del Poder Judicial, en sus artículos 244 al 242, regulaba el régimen de pensiones y jubilaciones del Poder Judicial. Mediante la Ley No. 9697 (sic) de 20 de diciembre de 2019, se reformó la Ley No. 7333, sea, la Ley Orgánica del Poder Judicial. Indican que dicha ley introdujo cambios drásticos en el régimen de jubilaciones del Poder Judicial y de otros regímenes, trasgrediendo los derechos y las situaciones consolidadas en favor de los funcionarios judiciales activos y pensionados del régimen. El artículo 1° de la ley se refiere a su objeto. El artículo 2 expone cuáles regímenes de pensiones serían afectados con la denominada ley de contribución especial solidaria y, dentro de estos, se encuentra el régimen del Poder Judicial (señalado concretamente en el inciso d). El numeral 3 expone los fines de la ley y es importante porque acá la Asamblea Legislativa justificó el porqué de la ley y señaló que era para proteger a los otros regímenes de pensiones y establecer una igualdad que generara la sostenibilidad de estos. Es decir, un régimen autónomo y autosostenible como es el del Poder Judicial (ya maltratado por otras leyes recientes), ahora debe entrar a realizar una contribución especial por su eficiencia para sostener otros regímenes menos eficientes y con contribuciones especiales menores a las que realizan los jubilados del Poder Judicial, variando groseramente las proyecciones de vida que esas personas jubiladas habían hecho de forma metódica y ordenada en su etapa de vejez, lo cual no es justo ni apegado al ordenamiento jurídico. Apuntan que en el artículo 4 de la ley impugnada se define el parámetro sobre el cual (en exceso de ese indicador), se calculará y pagará la contribución especial. Por su parte, mencionan que el artículo 7 reformó el ordinal 236 bis, inciso a), de la Ley Orgánica del Poder Judicial de 29 de noviembre de 1937. Alegan que esta ley produjo un cambio en detrimento de los derechos de los funcionarios judiciales jubilados. Además, indican que esta modificación al régimen vigente lo que hizo es subir los porcentajes de contribución al régimen, lo cual convierte a la ley en confiscatoria, además de desproporcionada e injusta. Indican que la sumatoria de todas las diferentes contribuciones y afectaciones a las que se ha visto sometido el régimen de pensiones del Poder Judicial generan globalmente una carga enorme que modifica de forma violenta, injusta y grosera, el monto final que la persona va a recibir como pensión. Todo esto provoca angustia, inseguridad y desmejora en la calidad de vida de los pensionados. En cuanto a los derechos fundamentales violentados, indican que primeramente se violenta el derecho a la jubilación de los trabajadores. Sostienen que si bien tales derechos pueden ser limitados, dichas limitaciones deben imponerse conforme lo dispuesto en las regulaciones internacionales. Mencionan que la Ley No. 9796 vulnera lo que disponen instrumentos internacionales y que protegen el derecho fundamental a la jubilación, como lo es, por ejemplo, el artículo 25 del Convenio No. 102 de la OIT, el numeral 5° del Convenio No. 118 de la OIT, los artículos 22 y 25 de la Declaración Universal de Derechos Humanos y el numeral 16 de la Declaración Americana de los Derechos y Deberes del Hombre, los cuales se refieren a la protección de las prestaciones o de los seguros, principalmente, por concepto de vejez. También, señalan que resulta de especial importancia lo dispuesto en el Convenio 102 de la OIT, que procura la protección de los trabajadores como cotizantes de regímenes de seguridad social, como son los fondos de pensiones; en particular, se refieren al artículo 29, punto 1°, inciso a), que indica a quiénes se les debe garantizar la prestación señalada, a su vez, en el ordinal 28. Alegan que mediante la ley bajo estudio no podía modificarse el Fondo de Pensiones del Poder Judicial “(…) primero porque atenta con el mayor valor de las normas internacionales, segundo y más importante aún debe interpretarse con el principio PRO HOMINE a favor de los jubilados, es decir, la no afectación de sus derechos humanos fundamentales, y mucho menos para regular aspectos que no son propios del mismo régimen de pensiones, sino para ser desviados a sustentar las finanzas públicas o de otros regímenes de pensiones que han sido descuidados y no eficientes en su manejo, castigando al fondo que si lo ha sido y peor a los trabajadores que con parte de su salario mes a mes construyeron el fondo en cuestión (…)”. Por ende, estiman que en este caso se violenta el artículo 7 de la Constitución Política, el cual indica que los tratados públicos, convenios internacionales y los concordantes debidamente aprobados por la Asamblea Legislativa tendrán autoridad superior a las leyes. Asimismo, acusan que se quebranta lo dispuesto en el ordinal 33 de la Constitución Política, que estatuye el derecho a la igualdad y no discriminación. Mencionan que los funcionarios del Poder judicial cotizan un 13,5% de su salarlo para su pensión, mientras que el resto de la población 3,8%. Y los jubilados continúan con una contribución similar e igual de dispar con relación al resto de los regímenes de pensiones. Aunado a ello, reiteran que el régimen de pensiones del Poder Judicial es autosuficiente y no necesita ayuda para su sostenibilidad, por lo que se encuentra en una situación desigual al resto de regímenes de pensiones. Sostienen que la reforma, entonces, afecta en forma específica a un grupo sobre cualquier otro régimen de pensiones y se trata, precisamente, de los jubilados judiciales, a quienes, por el monto de los rebajos, contribuciones especiales, CCSS e impuestos, se les disminuye su patrimonio en forma progresiva y acelerada. Explican que la contribución especial establecida en la ley impugnada no es racional y crea desigualdades a todos los pensionados “(…) generando deterioro en su condición económica, al fijarse niveles de deducción confiscatorios, los cuales no están sustentados en estudios técnicos y/o especializados que involucre todos los actores socioeconómicos, actuariales y de calidad de vida de los cotizantes al régimen, generando un deterioro económico de grandes proporciones a I (sic) cotizantes al régimen (…)”. Sostienen que, conforme al principio de igualdad jurídica, se debe dar un tratamiento jurídico igual a quienes se encuentren en una misma posición o categoría jurídica. Por su parte, quienes estén colocados en posiciones, situaciones o categoría diferentes, deben recibir un tratamiento jurídico diferenciado. De ello se deriva que no todo tratamiento jurídico deba ser uniforme; la diferencia de situación puede ser real o bien, determinada por ley. Indican que esa determinación está sujeta al principio de razonabilidad y, para ser válida, la diferencia debe ser razonable. En caso contrario, se incurre en una discriminación odiosa por irrazonable y, como tal, creadora de una discriminación que no está acorde con el principio de igualdad. Mencionan que hay dos elementos para determinar o no la violación al principio de igualdad, a saber, el parámetro de comparación (que permite establecer que entre dos o más personas existe una situación idéntica y que, por lo tanto, produce un trato discriminatorio desprovisto de toda justificación objetiva y razonable) y, en segundo lugar, la razonabilidad de la diferenciación, con lo que se estatuye el principio de razonabilidad como parámetro de constitucionalidad. Señalan que la jurisprudencia constitucional estima al principio de razonabilidad como uno de los principios integrantes del Derecho Constitucional. Explican que el principio de supremacía constitucional es el que permite determinar las normas constitucionales como superiores a las ordinarias y, dentro de ese principio, se ubica el principio de razonabilidad (como un subprincipio), que sirve como parámetro para valorar los actos jurídicos y su existencia está orientada a respetar los valores expresados en la Constitución. Afirman que, siguiendo a ese principio, las leyes deben ajustarse al sentido constitucional formado por los motivos tenidos en cuenta por el constituyente, por los fines propuestos, por los valores jurídicos fundamentales y por los medios previstos. Indican que, precisamente, la necesidad de cualquier acto de ajustarse al sentido constitucional es lo que permite hablar del principio de razonabilidad derivado del principio de supremacía de la constitución. Así, entonces, cuando el jurista ubica una norma que no está conforme con los principios constitucionales, es claro que deberá hacer el juicio sobre su razonabilidad en aras de determinar su irregularidad o no con la Carta Magna de acuerdo con las exigencias del principio de supremacía constitucional. La razonabilidad está determinada para evitar aquellos actos abusivos del Estado que contravengan los principios establecidos en la Constitución. Así entonces, explican, la supremacía constitucional se convierte en un garante de la Constitución Política, no solo como conjunto de normas de jerarquía superior, sino como un orden de principios que refleja el sentir social de determinado pueblo. Alegan que, teniendo claro que el principio de razonabilidad tiene rango constitucional y no puede estar exento de análisis en cada decisión de Estado o formación de ley, se debe entender, entonces, que Ley No. 9796 arremete de manera flagrante, directa y grosera contra dicho principio. Sostienen que la relación del principio de razonabilidad y el principio de igualdad, plantean como problema esencial el discernimiento de una decisión normativa y cómo esta permitiría que un tratamiento desigual sea razonable. Es precisamente esa la interrogante irresuelta por la ley cuestionada, en virtud de que su fundamento es inconsistente e, incluso, gravoso, en forma desproporcionada, para el sector de los jubilados judiciales, sin que exista gradualidad alguna que permita aplicar la normativa de manera respetuosa a los estadios de permanencia al régimen. Indican que para que la diferenciación resulte constitucionalmente legítima, no basta con que lo sea el fin que se persigue con ella, sino que es indispensable, además, que las consecuencias jurídicas que resultan de tal distinción sean adecuadas y proporcionadas a dicho fin, de manera que la relación entre la medida adoptada, el resultado que se produce y el fin pretendido por el legislador superen el juicio de proporcionalidad en sede constitucional, evitando resultados especialmente gravosos o desmedidos. Sostienen que, precisamente, la medida de diferenciación contenida en la ley es gravosa y desmedida, dado que los sujetos comprendidos en la misma son considerablemente disímiles; de ahí que los efectos redunden en desproporcionados en sentido estricto y contrarios a la Constitución Política. Mencionan que no puede el legislador, soslayando las evidentes (al menos dentro de su lógica de reforma) falencias y negligencias del fondo de pensiones, dimensionar su solución sobre la espalda de una sola generación de trabajadores (hoy jubilados) y distribuir los efectos entre los sectores relacionados, dentro de estos el mismo Estado, cuya responsabilidad objetiva dejó de lado el control y regulación de este régimen. Agregan que la normativa bajo estudio contradice también lo dispuesto en el ordinal 34 constitucional, el cual indica claramente que a ninguna ley se le dará efecto retroactivo en perjuicio de alguna persona. Sostienen que el principio de irretroactividad no es tan solo formal, sino también y sobre todo material, de modo que resulta violado no solo cuando una nueva norma o la reforma de una anterior altera legítimamente derechos adquiridos o situaciones consolidas al amparo de la norma anterior, sino también cuando los efectos, la interpretación o la aplicación de esta última produce un perjuicio irrazonable o desproporcionado al titular del derecho o situación que ella misma consagra. En este caso, la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona. Explican que los derechos adquiridos son los que ingresan definitivamente en el patrimonio de su titular y las situaciones jurídicas consolidadas aquellas que ya no pueden ser modificadas jamás. Afirman que, según la jurisprudencia constitucional, la jubilación o pensión se traduce técnicamente en un derecho adquirido. Alegan que con la reforma que establece la Ley No. 9796 se afectan los derechos adquiridos de todos los que ya han cotizado y a quienes se les han otorgado pensiones con los lineamientos dictados para el Fondo de Pensiones en la Ley Orgánica del Poder Judicial, por lo que esos derechos deben continuar tal y como se otorgaron antes de su promulgación. Indican que, de lo contrario, se violentarían derechos legalmente otorgados, afectándose con ello la situación económica, familiar, la seguridad y la calidad de vida de la mayoría de los adultos mayores que dependen de ese derecho para su manutención. Indican que, por imposición de la ley, se están llevando a los pensionados a niveles de menor ingreso sin considerar que una gran mayoría de estos han sido personas que tuvieron que sacrificar tiempo, años de estudio y capacitación para obtener un ingreso acorde con su condición y mejorar su nivel de vida. Por antojo de las políticas del Estado y por decisión de los Diputados, se afectó abruptamente la situación socioeconómica de estos jubilados, igualando su condición al quintil 5 que ha fijado el Instituto Nacional de Estadísticas y Censos de Costa Rica (el cual excluye a pensionados y servicio doméstico). Manifiestan que los Diputados, en sus discusiones, hicieron referencia a un estudio actuarial, el cual señala que las pensiones no deberían otorgarse en montos superiores a ¢2.600.000,00 colones, pero la recomendación que hace el estudio actuarial es que a futuro el monto máximo de las jubilaciones debe ser ese monto, sea, en ningún momento señala el estudio que la fijación es retroactiva. Sostienen que la situación actual de las jubilaciones otorgadas debe respetarse, considerando los derechos adquiridos. De otra parte, afirman que se vulnera lo dispuesto en el ordinal 73 de la Constitución Política, el cual reviste a las pensiones y jubilaciones con el carácter de derecho constitucional. Se trata del derecho fundamental a la jubilación derivado del régimen de seguridad social, el cual, no puede ser condicionado con posterioridad a su reconocimiento como derecho adquirido. Advierten que la reforma al régimen de pensiones del Poder Judicial contraviene de manera flagrante el principio de seguridad jurídica, el cual se traduce en la confianza de todo ciudadano en los ordenamientos jurídicos válidos y vigentes, de manera tal que no puedan darse quebrantos a este sistema que diluya sus derechos. Es uno de los principios fundamentales de todo ordenamiento jurídico constitucional democrático, y se refiere a la necesidad que los ciudadanos sepan, en todo momento, a qué atenerse en sus relaciones con el Estado y con los demás particulares. Se refiere a la confianza que los ciudadanos pueden tener en la observancia y respeto de las situaciones derivadas de la aplicación de normas válidas y vigentes. Manifiestan este parámetro de constitucionalidad en regímenes de pensiones, forma parte de nuestro ordenamiento jurídico y, de esta forma, significa “protección y confianza en todos los ciudadanos que mantengan periodos de estancia en regímenes de pensiones”. Indican que en el caso de la reforma el Fondo de Pensiones del Poder Judicial, esta variable se agrava, pues se trata de un fondo obligatorio al que deben someterse los trabajadores del sector independientemente de su voluntad, sea es el camino a seguir a través del cual el Estado ha decidido se proteja su derecho fundamental a un retiro digno y justo. En este marco de ideas, las variaciones que impone el proyecto, quebrantan esa confianza y seguridad de los funcionarios judiciales en atención a la abrumadora diferencia que se plantea en las reformas, introduciendo una contribución en concepto de solidaridad para la sostenibilidad de los otros regímenes de pensión. Señalan que también esa obligatoriedad resulta abusiva y arbitraria (otra de las finalidades del principio de seguridad jurídica), en el tanto agrava las condiciones socioeconómicas de los jubilados judiciales a su antojo y sin reparo en sus derechos y expectativas. Esto por cuanto se trata de un régimen obligatorio que, liberado de cualquier control de seguridad jurídica, permitiría la variación de condiciones de las formas más indiscriminadas, independientemente de la voluntad de los jubilados. Esta obligatoriedad en el régimen obliga al Estado a ser mucho más celoso en las variaciones que se hagan de este tipo de regímenes que, en el caso concreto, implican la estabilidad y futuro de más de dieciséis mil familias costarricenses. Apuntan que, en el caso de los jubilados, la situación es sumamente gravosa, pues han elaborado un proyecto de vida adquiriendo compromisos económicos y, de repente, de forma abrupta, se les modifican sus condiciones con afectaciones severas en su esfera patrimonial. Explican que en la ley impugnada “(…) se fijan porcentajes de deducción del 35% para aquellas jubilaciones superiores a 6 salarlos base del puesto más bajo del Poder judicial, aproximadamente la base es 10 2.530.000.00 y sobre el exceso se cobra un 35%, un 45% sobre el exceso de in 200.000, y un 55% sobre el exceso de 4.200.000.00a (datos aproximados) porcentajes fijados sin ningún estudio técnico, por lo que son arbitrarlos y confiscatorios, apropiándose de dineros que por derechos adquiridos pertenecen a los jubilados y pensionados. Por otra parte se establece que esos porcentajes se aplican sobre montos brutos lo que genera un doble gravamen sobre los dineros percibidos por los jubilados y pensionados, Ya que se aplica esa deducción sobre deducciones obligatorias que debe cancelar cada jubilado y pensionado, como es el impuesto sobre la renta y el porcentaje del 13% de cotización obligatoria al régimen, conviniéndose en una doble tasa impositiva sobre un mismo beneficio lo que desde todo punto de vista, es improcedente y evidencia la voracidad impositiva que se quiere imponer a las jubilaciones y pensiones (…)”. Afirman que la Sala Constitucional ha reconocido el derecho a la jubilación como un derecho fundamental integrado dentro del derecho a la seguridad social. Indican que esa misma jurisdicción se ha pronunciado sobre la importancia de establecer claramente varios principios constitucionales como son la solidaridad, la intangibilidad relativa del patrimonio y, por supuesto, la proporcionalidad y razonabilidad. Indican que la ley en cuestión violenta el principio de solidaridad, ya que le varía a un sector específico de la población las circunstancias con una reforma no progresiva, sino disruptiva, que genera pobreza y menoscabo patrimonial. Sostienen que el derecho a la jubilación, como derecho humano, en las condiciones que lo han venido disfrutando los jubilados, no puede modificarse, por haberse constituido en derecho adquiridos. Indican que la reforma debió haberse hecho de forma razonada y proporcionada y no de forma disruptiva y abrupta, sea desproporcionada y abusiva de los derechos de los funcionarios judiciales y de los jubilados del régimen, afectando con esto situaciones jurídicas consolidades y derechos adquiridos. Indican que la ley en cuestión “(…) es violatoria de los principios de irretroactividad, seguridad jurídica ya que viola derecho fundamentales de los reconocidos en el artículo 7 de nuestra Constitución Política, es decir, derechos humanos fundamentales, principio de igualdad, así como los principios de razonabilidad y proporcionalidad por cuanto, sobre el monto de la jubilación que es usado para el cálculo de la jubilación se aplican todos los rebajos y contribuciones especiales, llegando alcanzar estos más de un 55% del monto bruto de la jubilación. Esto hace que estos rebajes y contribuciones especiales, sean irrazonables y absolutamente desproporcionados, contrariando, los tratados de derechos humanos y de derecho internacional suscritos por nuestro país (…)”. Señalan que, si bien existe el principio de mutabilidad del ordenamiento, el mismo no puede ir en contra derechos adquiridos y situaciones jurídicas consolidadas. Además, esto debe ser progresivo, proporcionado y razonable. Alegan que la reforma bajo estudio, es inconstitucional por cuanto “(…) modifican situaciones consolidadas de los jubilados del Poder judicial, que ven menoscabados sus derechos de una forma abrupta a través de una reforma disruptiva, desproporcionada e irrazonable, que genera una desmejora en el cálculo de su jubilación, incrementa los montos de los rebajos y contribuciones especiales por encima de cualquier otra carga impositiva en nuestro ordenamiento, calculando además el límite máximo de rebajos en un 55 % de /a jubilación bruta, haciendo entonces, insistimos, que sea la reforma desproporcionada, irrazonable, abrupta y que coloca en situación de abierto menoscabo patrimonial (confiscatorio) a sus integrantes, afectando la continuidad de proyectos de vida, la dignidad de las personas jubiladas y la seguridad jurídicas (…)”. Finalmente, indican que la normativa en cuestión violenta el principio de no confiscación (artículo 40 constitucional). Señalan que este principio constituye un límite al ejercicio del poder tributario, vinculado con los principios de capacidad contributiva y progresividad; además de representar un mecanismo de protección del derecho a la propiedad privada. Mencionan que el artículo 3 de la ley habla de crear una contribución y esta, al ser una carga impositiva sobre el monto de la jubilación, tiene naturaleza fiscal y, por su estructura, tiene contenido de confiscatoriedad en el patrimonio de los servidores judiciales jubilados y de aquellos que se jubilarán. Entonces, afirman que “(…) la reforma impone condiciones confiscatorias en cuanto al cálculo de la pensión. El cálculo ya no es sobre un 100 % de los salarlos devengados en los últimos 24 meses, sino que pasó a ser el 82% sobre los últimos 240 salarios, de acuerdo a la ley conocido (sic) como combo fiscal. Es decir, una diferencia de cálculo de 18 años y un porcentaje de diferencia de 18%. Al resultado de ese residuo, debe aplicarse una cotización aumentada en un 2%, por la misma ley paso (sic) de un 11 % a un 13 % a eso hay que restarle la (sic) demás cargas de ley por ejemplo renta, fondo de pensiones (se sigue cotizando) y EESS, quedando un disponible por debajo del 53% de la base de cálculo y sobre el bruto de la jubilación además debe calcularse esta nueva carga fiscal que introduce la ley que impugnamos, al paso que va los jubilados no van a recibir jubilación alguna y además deberán pagar al Estado las cargas de donde solo El Estado sabe, pues el único ingreso de los jubilados es su jubilación, hasta donde llegará la voracidad estatal. Esta variación es confiscatoria y contraria a nuestro sistema constitucional, ya que somete a los jubilados del Poder judicial a una pena de confiscación, prohibida expresamente por el artículo 40 de la Constitución Política (…)”. Aducen que las medidas propuestas por la reforman llevan un rebajo en las condiciones de la pensión de los trabajadores judiciales de cerca de un 70% de su derecho, reducido a un 55% por imperio de la propia ley. Indican que la pena confiscatoria que introduce la ley bajo estudio, vulnera los principios de igualdad y de capacidad contributiva. Solicitan que se declare inconstitucionales los ordinales 1°, 2, inciso d); 3; 4, inciso b); 5 y 7; todos de la Ley No. 9796 del 5 de diciembre de 2019, denominada “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, y el artículo 236 bis, inciso a), de la Ley Orgánica del Poder Judicial. Como medida cautelar, solicitan se suspenda la entrada en vigencia de la ley que se impugna de forma temporal, hasta tanto se resuelva la presente acción.

2.- Por resolución de las 10:57 hrs. de 5 de mayo de 2020, el Presidente de la Sala previene a los accionantes a aportar copia certificada de los estatutos de la cooperativa accionante; documentación de importancia para valorar la admisibilidad de la acción.

3.- Por escrito aportado a la Sala el 11 de mayo de 2020, los accionantes cumplen la prevención girada por resolución de 5 de mayo de 2020 y aportan los estatutos certificados requeridos.

4.- Por resolución de la Presidencia de la Sala de las 11:37 hrs. de 12 de mayo de 2020, se le da curso a la presente acción de inconstitucionalidad y se otorga audiencia al Procurador General de la República, al Ministro de Hacienda, a la Ministra de Planificación y Política Económica y al Presidente de la Corte Suprema de Justicia.

5.- Por escritos aportados a la Sala los días 15 y 18 mayo de 2020, Héctor Luis Ruiz Salas y José Marcelino Silva Silva, en su condición de jubilados del Poder Judicial, solicitan que se les tenga como coadyuvantes activos del presente proceso.

6.- Los avisos de ley –correspondientes a la presente acción de inconstitucionalidad–, fueron publicados en los Boletines Judiciales Nos. 093, 094 y 095 de los días 18, 19 y 20 de mayo de 2020.

7.- Por escrito aportado a la Sala el día 25 de mayo de 2020, Gustavo Adolfo Ramírez Redondo, en su condición de jubilado del Poder Judicial, solicita se le tenga como coadyuvante activo del presente proceso.

8.- Mediante memorial aportado a la Sala el 28 de mayo de 2020, Julio Alberto Jurado Fernández, en su condición de Procurador General de la República, contesta la audiencia conferida y señala expresamente lo siguiente: “(…) II.- RESPECTO A LA LEGITIMACIÓN DE COOPEJUDICIAL PARA CUESTIONAR LA VALIDEZ DE LAS NORMAS IMPUGNADAS La resolución que dio curso a la acción de inconstitucionalidad sobre la cual versa este informe (emitida por la Presidencia de la Sala Constitucional a las 11:37 horas del 12 de mayo del 2020) dispuso que "La legitimación de la parte accionante proviene del artículo 75, párrafo 2°, de la Ley de /a Jurisdicción Constitucional, toda vez que alega actuar en defensa de los intereses corporativos de las personas asociadas -activas y jubiladas- de Coopejudicial R. L.” A pesar de lo anterior, considera este órgano Asesor que las cooperativas, aun cuando tengan afiliados que podrían verse afectados con las normas que se impugnan en esta acción, no están legitimadas para cuestionar directamente disposiciones como las que se solicita anular. Admitir la legitimación de las cooperativas para plantear acciones de inconstitucionalidad contra cualquier disposición normativa que pueda afectar a sus asociados (sea que esas disposiciones estén relacionadas con temas de empleo público, de empleo privado, de jubilaciones, o de cualquier otra materia) implicaría atribuir a esos entes de base asociativa fines que no están contemplados en la Ley de Asociaciones Cooperativas, n.° 4179 del 22 de agosto 1968. En lo referente a los fines de las asociaciones cooperativas, los artículos 1 y 2 de la ley n.0 4179 citada disponen lo siguiente: "Artículo 10.- Declárase de conveniencia y utilidad pública y de interés social, la constitución y funcionamiento de asociaciones cooperativas, por ser uno de los medios más eficaces para el desarrollo económico, social, cultural y democrático de los habitantes del país." “Artículo 20.- Las cooperativas son asociaciones voluntarias de personas y no de capitales, con plena personalidad jurídica, de duración indefinida y de responsabilidad limitada, en las que los individuos se organizan democráticamente a fin de satisfacer sus necesidades y promover su mejoramiento económico y social, como un medio de superar Su condición humana y su formación individual, y en las cuales el motivo del trabajo y de la producción, de la distribución y del consumo, es el servicio y no el lucro.” Si bien la segunda de las normas transcritas establece que las cooperativas tienen dentro de sus fines promover el mejoramiento económico y social de sus afiliados, ello no las legitima para cuestionar la constitucionalidad de cualquier disposición que perjudique a éstos últimos en su esfera personal, porque ello implicaría flexibilizar excesivamente el acceso de las cooperativas a la jurisdicción constitucional. Lo anterior se refuerza con lo dispuesto en el artículo 12, inciso f), de la Ley de Asociaciones cooperativas, según el cual "A ninguna cooperativa le está permitido (...) Desarrollar actividades para las cuales no esté legalmente autorizada.”. Este órgano Asesor comparte lo resuelto por esa Sala en su sentencia n.° 2014-20446 de las 9:30 horas del 17 de diciembre de 2014, reiterada en la n.° 7175-2017 de las 9:05 horas del 17 de mayo de 2017, en el sentido de que las cooperativas están legitimadas para plantear acciones de inconstitucionalidad siempre y cuando se trate del cuestionamiento de normas o disposiciones que incidan en aquel núcleo de derechos o intereses que constituye la razón de ser y el factor aglutinante de la agrupación". En este caso, la defensa de los derechos jubilatorios de los funcionarios y exfuncionarios del Poder Judicial no incide en el núcleo de derechos o intereses que constituyen la razón de ser de COOPEJUDICIAL Tampoco esa defensa está relacionada con el factor aglutinante de la agrupación. Por ello, estimamos que esta acción resulta inadmisible, por falta de legitimación del accionante. Nótese incluso que no todos los asociados a COOPEJUDICIAL son funcionarios o exfuncionarios judiciales, pues esa cooperativa admite la afiliación de otros funcionarios públicos que nunca han laborado para el Poder Judicial, lo que ratifica que resguardar los derechos jubilatorios de solo algunos de sus miembros no puede constituir la razón de ser de la cooperativa (…) III.- SOBRE LA VALIDEZ DE LAS REFORMAS OPERADAS A LAS CONTRIBUCIONES ESPECIALES SOLIDARIAS IMPUESTAS A LAS PRESTACIONES ECONÓMICAS POR JUBILACIÓN. Para analizar los argumentos que plantea la cooperativa accionante, hemos decidido dividirlos en cuatro grupos, según se relacionen con 1) el principio de igualdad; 2) el principio de irretroactividad; 3) el derecho fundamental a la pensión; y, 4) los principios de razonabilidad, proporcionalidad, no confiscación, e intangibilidad del patrimonio. 1).- Sobre la posible violación al principio de igualdad Manifiesta la accionante que la ley n.0 9796, al disminuir el tramo exento del pago de la contribución especial, solidaria y redistributiva aplicable a las personas jubiladas del régimen del Poder Judicial, infringe el principio de igualdad constitucional, pues no toma en cuenta que los afiliados a ese régimen realizan una cotización mayor, comparada con la que se exige en otros regímenes de pensiones, lo que justificaría -en el caso del régimen del Poder Judicial- mantener los tramos exentos de contribución que existían antes de la reforma que se solicita anular. Al respecto, debemos indicar que los ajustes a la contribución especial solidaria y redistributiva a la que se refiere la ley cuya constitucionalidad se cuestiona, se aplicaron a todos los regímenes especiales sustitutivos de pensiones, atendiendo las características de cada uno de ellos. Dentro de los regímenes afectados se encuentra el Régimen General de Pensiones con Cargo al Presupuesto Nacional, el Régimen de Pensiones del Magisterio Nacional, el Régimen de Jubilaciones y Pensiones de Comunicaciones, el Régimen de Jubilaciones y Pensiones de Empleados de Obras Públicas y Transportes, el Régimen de Pensiones del Registro Nacional, el Régimen de Jubilaciones y Pensiones de los Empleados del Ferrocarril Eléctrico al Pacífico, el Régimen de Pensiones de Músicos de Bandas Militares y el Régimen de Pensiones de la Secretaría de Hacienda y sus Dependencias, entre otros. A juicio de esta Procuraduría, no es posible acudir al principio de igualdad constitucional para solicitar que las reformas en estudio no se apliquen al régimen del Poder Judicial. Ciertamente, el aporte de los afiliados al régimen del Poder Judicial es de un 13% de su salario, porcentaje que es mayor al que aportan los afiliados al régimen de pensiones de IVM, que es de un 4%; sin embargo, las prestaciones económicas del régimen de IVM son muy distintas a las del régimen del Poder Judicial. A manera de ejemplo, el tope máximo para las pensiones del régimen del IVM es de l.612.851,00 sin postergación; mientras que el tope máximo inicial del régimen de pensiones del Poder Judiciales es de 4.258.000,00 equivalente a diez veces el salario base del puesto más bajo pagado en el Poder Judicial (art. 225 de la LOPJ), salario que en el segundo semestre del 2019 fue de 425.800,00. La pensión que otorga el régimen de IVM va de un 43% a un 52,5% del promedio salarial de los últimos 20 años (artículo 23 del Reglamento de IVM); mientras que la pensión que otorga el régimen del Poder Judicial es de un 80% del promedio de los últimos 20 años de servicio (artículo 224 LOPJ). La contribución solidaria y redistributiva aplicable al régimen del Poder Judicial con la entrada en vigencia de las normas que se impugnan inicia a partir de los 2.554.800,00 (equivalente a seis salarios base del puesto más bajo pagado en el Poder Judicial, salario que al segundo semestre del 2019 es de 425.800,00), suma a la que no pueden llegar siquiera las pensiones del régimen de IVM, cuyo tope máximo sin postergación es -como indicamos- de l.612.851,00. Como puede apreciarse de los datos anteriores, no es posible comparar el régimen del Poder Judicial con el régimen de IVM para afirmar que en virtud de la mayor cotización que se realiza al primero, no se justifica la contribución especial solidaria que se impugna. Son regímenes distintos, con prestaciones y condiciones también distintas, por lo que no hay comparación posible que permita validar una lesión al principio de igualdad constitucional. Por otra parte, si lo que se pretende es comparar la cotización que se realiza al régimen del Poder Judicial con la de Otros regímenes especiales, como es el caso, por ejemplo, de los regímenes con cargo al presupuesto nacional administrados por la Dirección Nacional de Pensiones, debemos señalar que la cotización a estos últimos es de un 16% del salario del trabajador (artículo 11 de la ley n.0 7302 de 8 de julio de 1992), la cual supera el 13% que se cotiza al régimen del Poder judicial. Esto es así, a pesar de que la contribución especial solidaria que se impuso a los regímenes especiales con cargo al presupuesto nacional inicia a partir de los 2.226.000,00 (8 veces el salario base más bajo pagado en la Administración Pública, que al segundo semestre del 2019 era de 278.250,00) suma que es inferior a la de 2.554.800,00 (6 veces el salario más bajo pagado en el Poder Judicial, que al segundo semestre del 2019 era de 425.800,00) en la que inicia la contribución del régimen del Poder Judicial. Debe tomarse en cuenta, además, que el Estado, como patrono, aporta al régimen del Poder Judicial un 14,36% del salario de los funcionarios judiciales; mientras que al régimen general de IVM y a los regímenes especiales con cargo al presupuesto nacional aporta solo un 5.25% de los salarios de sus afiliados. Esa situación pone de manifiesto que lejos de existir un trato discriminatorio en perjuicio del régimen del Poder Judicial, existen disposiciones que favorecen a ese régimen, y que implican un mayor gasto del Estado en su manutención. Es importante señalar que si bien esa Sala ha admitido la existencia de regímenes especiales de pensiones sustitutivos del régimen de IVM, también ha resuelto, en reiteradas ocasiones, que para la validez de esos regímenes es necesario que "1) la contribución del Estado como tal sea igual porcentualmente sobre los salarios para todos los regímenes incluyendo los de la empresa privada: y 2) la contribución del Estado como empleador en los diversos regímenes no sea superior a la que se impone a los demás empleadores, inclusive los patronos particulares ni en todo caso inferior a la de todos los servidores o trabajadores”. Así lo sostuvo en la sentencia n.0 846-92 de las 13:30 horas del 27 de marzo de 1982, y lo reiteró en las sentencias 5236-99 de las 14:00 horas del 7 de julio de 1999, 575399 de las 10:36 horas del 23 de julio de 1999, 6987-99 de las 16:21 horas del 8 de setiembre de 1999 y en la 3052-2000 de las 9:28 horas del 14 de abril de 2000. Lo anterior es importante para acreditar que la contribución mayor que hace el Estado como patrono al régimen del Poder Judicial (equivalente a casi diez puntos porcentuales más de la que hace a otros regímenes) no solo evidencia que no existe un trato discriminatorio en perjuicio de ese régimen, sino también que esa mayor contribución podría contradecir precedentes de esa Sala. En síntesis, no considera este Órgano Asesor que existan razones para afirmar que las normas impugnadas sean inconstitucionales por violar el principio de igualdad en perjuicio de los afiliados al régimen del Poder Judicial. 2.- Sobre la posible violación al principio de irretroactividad. Con respecto a este tema, debemos indicar que en nuestro medio se han creado, por vía legislativa, diversos regímenes especiales de pensiones sustitutivos del régimen de IVM. La existencia de esos regímenes especiales ha sido avalada reiteradamente por esa Sala, por ejemplo, en su sentencia número 846-92 ya citada. Partiendo de lo anterior, esta Procuraduría ha indicado que la Asamblea Legislativa tiene no solo la posibilidad, sino el deber, de adoptar las medidas necesarias para garantizar la sostenibilidad de los diversos regímenes especiales de pensiones, mediante la aprobación de las leyes necesarias para el logro de ese objetivo. También hemos señalado que dentro de los límites que se imponen a la potestad legislativa de regulación de los regímenes especiales de pensiones se encuentra el de respetar los derechos adquiridos y las situaciones jurídicas consolidadas de los destinatarios de esos regímenes; no obstante, en lo que se refiere específicamente a la ley que se analiza, no observa esta Procuraduría que las normas impugnadas conlleven una violación al principio de irretroactividad de la ley, pues los cambios en la contribución solidaria y redistributiva dispuestos en la ley n.0 9796 rigen hacia futuro, y no llevan consigo la obligación de devolver sumas percibidas con anterioridad, por lo que no existe lesión alguna al principio de irretroactividad. Ya esa Sala se ha referido al tema en los siguientes términos: "Los recurrentes arguyen que a las normas de excepción se les da efecto retroactivo y que se afectan los derechos adquiridos de ese grupo, en concreto, el monto que perciben por concepto de pensión o jubilación, que se ha visto disminuido al establecerse una contribución. También señalan que esta carga adicional, rompe el equilibrio 'tripartito e igualitario' consagrado en el numeral 73 constitucional. En criterio de la Sala, el reproche de irretroactividad es improcedente, pues la ley, quizás con deficiente técnica, lo que ha dispuesto es la obligación de la cotización de los pensionados y jubilados ex tunc y no ex nunc, pues de ninguna manera se les está obligando a realizar esos aportes sobre los dineros ya percibidos por concepto de jubilación o pensión. Hacia e/ futuro, las reglas son diversas y el monto de la cotización, que pretende compensar los desequilibrios de/ pasado y garantizar la sobrevivencia de/ sistema, de manera alguna afecta los derechos adquiridos, pues esta misma Sala ha expresado que existe un derecho fundamental a la pensión o jubilación, mas no al monto de la misma que podría variar por los requerimientos del sistema, Siempre y cuando esas variaciones no afecten el contenido esencial del derecho.” (Sentencia número 5236-99 de las 14:00 horas del 7 de julio de 1999. En el mismo sentido puede consultarse la sentencia n.0 6987-99 de las 16:21 horas del 8 de setiembre de 1999). Asimismo, esta Procuraduría ha indicado que la administración de cualquier régimen de seguridad social requiere flexibilidad para orientar adecuadamente los recursos limitados de que dispone y que esa flexibilidad se afecta cuando se inhibe al legislador para modificar tanto las condiciones iniciales, como las prestaciones en curso de pago. Partiendo de ello, no es posible admitir que se petrifiquen las normas que establecieron las condiciones de un determinado régimen, pues ello podría llevar incluso al colapso del sistema de Seguridad Social de un país, lo cual perjudicaría no sólo a las personas que ya han alcanzado la condición de pensionados, sino también a quienes tengan expectativas justificadas de obtener en el futuro -cuando surja alguna de las contingencias protegidas- prestaciones económicas de la Seguridad Social. (Dictamen C-147-2003 del 26 de mayo de 2003, reiterado en el &181-2006 del 15 de mayo de 2006, en la 00-021-2007 del 9 de marzo de 2007, y en la 03-082-2015 del 3 de agosto de 2015). 3.- Sobre la posible violación al derecho fundamental a la pensión. Si bien existe un derecho fundamental a la pensión ampliamente consolidado en la jurisprudencia de esa Sala, también ese Tribunal ha precisado que no hay un derecho a que la prestación que se otorgue lo sea por un monto específico, pues la pensión o jubilación puede variarse según las circunstancias, ya sea para recalificar el beneficio aumentándolo o disminuyéndolo, cuando el aporte de los beneficios no sea suficiente para cubrir su cuota en el costo del régimen... ". (Sentencias 1925-91 de las 12:00 horas del 27 de setiembre de 1991, 2379-96 de las 11:06 horas del 17 de mayo de 1996 y 3250-96 de las 15:27 horas del 2 de julio de 1996). En el caso específico de las contribuciones especiales, esa Sala, en su sentencia n.0 3250-96 de las 15:27 horas del 2 de julio de 1996, indicó que tales contribuciones no son inconstitucionales, por encontrar fundamento en la naturaleza social del derecho a la jubilación, naturaleza que se inscribe dentro de los principios que conforman el Estado Social de Derecho, recogidos por el artículo 50 de la Constitución Política. En la resolución mencionada, esa Sala ratificó la validez de una contribución impuesta a los pensionados del régimen del Magisterio Nacional. En esa oportunidad indicó lo siguiente: “(…) la contribución que se fija a cargo de los pensionados del Régimen de Pensiones de/ Magisterio Nacional en el artículo 12, y la exclusión que de dicha contribución se hace como derecho adquirido en el transitorio I ambos de la Ley número 7268, no lesionan el artículo 34 de la Constitución Política, por formar parte del elenco de limitaciones que válidamente han formado parte el derecho fundamental a la jubilación que ostenta e/ accionante desde su ingreso y de las cuales no puede sustraerse porque las adquirió junto con él. (...) La forma en que el artículo 12 de la Ley 7268 regula la contribución a cargo de los pensionados del Régimen del Magisterio Nacional, no contraviene el artículo 45 de la Constitución Política, primero, porque respeta el principio de progresividad (única fata que se hizo notar a/ evacuar en su oportunidad la Consulta Legislativa y que el Parlamento se encargó de enmendar) con lo que deja prácticamente intacto un monto suficiente a juicio de la Sala para garantizar el efectivo disfrute del derecho a la jubilación, y segundo, porque los montos que se cobran por los distintos excesos que ocurran en casos concretos tienen un claro fin protectivo y uniformador en beneficio del grupo de personas para quienes fue establecido el régimen; es decir, están dirigidas al bienestar social de todos o bien de la gran mayoría de los miembros para los cuales se concibió el régimen. Ello puede conllevar que en algunos sistemas jubilatorios existan normas redistributivas para aquellos casos que pueden llamarse Si se quiere, extraños a la razón de ser del régimen y que deben por lo tanto, sufrir un proceso de uniformación para asimilar los beneficios percibidos (en la medida de lo necesario y posible) a los que reciben la mayoría de los beneficiados del régimen, teniendo que hacer, en consecuencia, -si es su deseo seguir disfrutando de los beneficios del sistema- un mayor aporte por recibir una mayor contraprestación en relación con las personas que fueron tomadas en consideración al diseñarse el sistema -en este caso, los maestros-, quienes perciben un salario sustancialmente menor y, en consecuencia, lo es también su jubilación o pensión. justo es pues -por el carácter solidario del régimen- fijar un monto máximo suficientemente alto que permita incluir los salarios superiores de los beneficiarios propios del fondo y someter a mayor exigencia participativa a los que estén por encima de él, por provenir siempre de obligaciones no contempladas dentro de las tomadas en consideración al fijar las bases del sistema.” En síntesis, nada se opone, dentro del marco constitucional, a que el legislador introduzca reformas al sistema de la Seguridad Social y regule o modifique, hacia el futuro, los elementos normativos que deben tener en cuenta los operadores jurídicos para reconocer el monto de la pensión, lo cual hace en ejercicio de las atribuciones que la propia Constitución Política le ha encomendado y que comportan el margen de discrecionalidad propio de la función legislativa, el cual le permite introducir válidamente las reformas que, de acuerdo con las necesidades económicas y conveniencias sociales, así como con la evolución de los tiempos, juzgue necesarias para la efectividad y garantía del derecho a la pensión. Además, estimamos que, en definitiva, las garantías que la Constitución contempla a favor de los pensionados no pueden interpretarse en el sentido de recortarle al legislador el ejercicio de la función que la propia Constitución le ha confiado, pues ello sería petrificar el ejercicio dinámico de legislar sobre grupos determinados de individuos, en franco detrimento de la generalidad. Por otra parte, un argumento transversal en la acción de inconstitucionalidad que nos ocupa consiste en afirmar que la contribución especial impuesta a los afiliados al régimen del Poder judicial tiene como objetivo financiar regímenes que han sido mal administrados. En esa línea se indica que “…. un régimen autónomo, autosostenible como el del Poder judicial, que ya ha sido bastante maltratado por otras leyes recientes, ahora por su eficiencia debe entrar a realizar una contribución especial, para sostener otros regímenes de pensiones menos eficientes... " y se agrega que los recursos de la contribución especial se utilizarán para ser desviados a sustentar las finanzas públicas o de otros regímenes de pensiones que han sido descuidados y no eficientes en su manejo…" Sobre ese punto, debemos indicar que el artículo 236 bis de la LOP), en su último párrafo, establece claramente que "Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presente ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial...” lo que desvirtúa el reparo al que se hizo alusión. Ciertamente, la ley n.0 9836 del 26 de marzo del 2020 dispuso que los recursos aportados por la contribución impuesta a los regímenes a los que se refiere el artículo 4 de la Ley 9383, Ley Marco de Contribución Especial de los Regímenes de Pensiones, de 29 de julio de 2016, deben utilizarse para otorgar pensiones del régimen no contributivo dirigidas a personas en situación de pobreza extrema; sin embargo, el régimen del Poder Judicial no está dentro de los que menciona el artículo 4 citado, por lo que los recursos de sus contribuciones se mantienen dentro del régimen del Poder Judicial. 4.- Sobre la posible violación de los principios de razonabilidad. proporcionalidad. no confiscación e intangibilidad del patrimonio. Con respecto a ese tema, debemos indicar que la contribución especial solidaria y redistributiva regulada en la ley n.' 9796 no es excesiva ni irrazonable, sobre todo Si se toma en cuenta que en el caso del régimen del poder Judicial esa contribución aplica solo después de que la prestación económica que recibe el pensionado supere el equivalente a la suma de seis salarios base del puesto más bajo pagado en el Poder Judicial, lo que equivale a 2.554.800,00. En otras palabras, los pensionados cuya prestación económica sea inferior a 2.554.800,00, no están afectos a la contribución especial solidaria que se solicita anular, aparte de que esa contribución es escalonada, o progresiva, lo que permite afirmar que el legislador respetó el principio constitucional de proporcionalidad. Estimamos, además, que las disposiciones impugnadas respetan el principio de no confiscación, pues las deducciones totales al monto de la pensión (incluida la contribución especial solidaria, la cotización al régimen, el impuesto sobre la renta y cualquier otra deducción obligatoria) no pueden superar el 55% del monto bruto de la pensión. Así lo establece la propia ley n.° 9796, en su artículo 5, según el cual "En ningún caso, la suma de la contribución solidaria y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por esta ley, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad de/ monto bruto de la pensión o las pensiones, que por derecho le correspondan a/ beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión o las pensiones, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad de/ monto bruto de las pensiones. " Nótese que para alcanzar o superar el 55% de retenciones sobre el monto bruto de la pensión, la cuantía de ésta última tiene que ser muy elevada, sobre todo si se toma en cuenta que sobre los primeros 2.554.800,00 no se paga contribución especial solidaria alguna. Es importante señalar, en todo caso, que la prueba de la irracionabilidad de una norma corre por cuenta de quien la alega, siendo que en este asunto no se ha demostrado tal irracionabilidad. Sobre el tema, esa Sala ha indicado que "Para emprender un examen de razonabilidad de una norma, el Tribunal Constitucional requiere que la parte aporte prueba o al menos elementos de juicio en los que sustente su argumentación e igual carga procesal le corresponde a quien rebata los argumentos de la acción y la fata en el cumplimiento de estos requisitos, hace inaceptables los alegatos de inconstitucionalidad. Lo anterior, debido a que no es posible hacer un análisis de razonabilidad sin la existencia de una línea argumentativa coherente que se encuentre probatoriamente respaldada." (Sala Constitucional, sentencia n.0 5236-99 de las 14:00 horas del 7 de julio de 1999, reiterada, entre muchas otras, en la n.0 10153-2001 de las 14:44 horas del IO de octubre del 2001 y en la n.0 14392-2016 de las 9:05 horas del 5 de octubre de 2016). Además, conforme a la jurisprudencia constitucional, el examen de razonabilidad, como parte integrante del control de constitucionalidad, se limita a excluir del ordenamiento aquellos actos totalmente irrazonables, pero no a sustituir ni a enjuiciar a las autoridades públicas en la ponderación de los elementos que puedan hacer una opción más adecuada que Otra (resoluciones 1064-2009 de las 15:07 horas del 28 de enero de 2009, 9042-2010 de las 14:30 horas del 19 de mayo de 2010 y 10986-2012 de las 15:05 horas del 14 de agosto de 2012). Ahora bien, si en algún caso concreto no se respeta el monto exento de la contribución (que, en el caso del Poder Judicial, como ya indicamos, es de 0.554.800,00) o se realizan retenciones que superen el 55% del monto bruto de la pensión, ello no podría atribuirse al contenido de las normas que se impugnan, sino a su errónea interpretación, o indebida aplicación, lo cual debería revisarse en la vía del recurso de amparo y no en una acción de inconstitucionalidad. Las siguientes citas jurisprudenciales corroboran esa posición: “… la accionante fundamenta su alegato en perjuicio' que le ha causado la Interpretación y aplicación' de la normativa impugnada, razón por la cual no se está ante los presupuestos de una acción de inconstitucionalidad, sino de un recurso de amparo, con fundamento en lo dictado en el artículo 73 inciso b.) que rige esta Jurisdicción —el cual dispone que cabrá la acción de inconstitucionalidad contra los actos subjetivos si no fueren susceptibles de los recursos de habeas corpus o de amparo—, en virtud del cual, se concluye que el contenido de esta impugnación debió haber sido objeto de un recurso de amparo por tratarse no de roces constitucionales, sino de alegatos contra actuaciones administrativas susceptibles de ser conocidas en esa otra vía, según lo dispuesto en el artículo 29 párrafo último de la Ley de la Jurisdicción Constitucional” (Sala Constitucional. Sentencia n.0 1160-94 de las 10:30 horas del 2 de marzo de 1994). “…La aplicación indebida de la ley o su errónea interpretación en el caso concreto, es materia propia de/ recurso de amparo y no de la acción de inconstitucionalidad, como lo expone claramente e/ artículo 29 de la Ley de la Jurisdicción constitucional". (Sala Constitucional sentencia n.0 5966-94 de las 15:54 horas del 11 de octubre de 1994, reiterada, entre otras en la n.0 13421-2004 de las 14:06 horas del 26 de noviembre de 2004 y en la n.0 5965-2014 de las 14:45 horas del 7 de mayo de 2014). En otro de sus argumentos, la cooperativa accionante manifiesta que no existen estudios que respalden la necesidad de la reforma a la contribución especial, solidaria y redistributiva hecha mediante la ley n.° 9796. Sobre ese tema, debemos indicar que la necesidad de reducir el gasto público originado en el pago de prestaciones económicas relacionadas con los regímenes especiales de pensión, así como la de equilibrar aquellos regímenes que cuentan con un Fondo, es pública y notoria. Aun así, debemos señalar que para la aprobación de la ley cuestionada sí se realizaron estudios jurídicos y económicos por parte de la Asamblea Legislativa y de la Superintendencia de Pensiones. En ese sentido, a folio 463 al 484 del expediente legislativo n.0 21035 (que culminó con la aprobación de la ley n.0 9796) consta el Informe Jurídico AL-DEST131.1-199-2019, del 26 de agosto 2019, preparado por el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa. Asimismo, a folios 510 al 549 de ese expediente consta el Informe Económico AL-DEST-IEC-079-2019, del 3 de setiembre 2019, preparado por ese mismo Departamento. Y, finalmente, a folios 1167 a 1171 del expediente consta el informe rendido por la Superintendencia de Pensiones mediante su oficio SP-1025-2019, del 24 de octubre de 2019 IV.- CONCLUSIÓN Con fundamento en lo expuesto, considera esta Procuraduría que la presente acción resulta inadmisible por falta de legitimación de la cooperativa accionante. En lo que concierne al fondo del asunto, sugerimos a esa Sala declarar sin lugar la acción de inconstitucionalidad sobre la cual versa este informe (…)”.

9.- Por escrito aportado a la Sala el 1° de junio de 2020, Fernando Cruz Castro, en su condición de Presidente de la Corte Suprema de Justicia, contesta la audiencia conferida y señala expresamente lo siguiente: “(…) I.- Consideración preliminar: Esta Presidencia estima oportuno indicar que en virtud de las competencias asignadas por la ley 9544 a la Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, corresponde a esta la administración de las pensiones de los servidores y servidoras del Poder Judicial, en su condición de órgano de desconcentración máxima con personería jurídica instrumental. En razón a lo anterior, en virtud del traslado de la acción de inconstitucionalidad realizado por la resolución de la Sala competente, procedo a dar respuesta al mismo, mas en el entendido que debe valorarse dar traslado de la acción al indicado órgano, a efecto de que también se pronuncie al respecto. La contestación que da esta Presidencia se encuentra en función de la posición adoptada por la Corte Suprema de Justicia con respecto de la incidencia del entonces proyecto de ley en la organización y funcionamiento del Poder Judicial y en el entendido de que el mismo impacta de manera grave, desproporcionada y poco razonable en las personas jubiladas judiciales y ante todo en aquellas que ejercen la judicatura, conforme a las consideraciones que a continuación se indicarán. II.- Antecedentes: 1). Mediante oficio número AL-20035-OFI-0043-2017, del treinta y uno de julio de dos mil diecisiete, recibido ese día, el órgano Legislativo remitió consulta sobre el Dictamen Afirmativo de Mayoría del veintisiete de julio de dos mil diecisiete, respecto al texto del proyecto de ley número 19.922, denominado "Ley de Reforma Integra/ a los Diversos Regímenes de Pensiones y Normativa Conexa'.' En dicho proyecto se contempla la creación de una "contribución especia/ solidaria' obtenida de las jubilaciones o pensiones ya otorgadas y por otorgarse. En virtud de ello, en la sesión de Corte Plena número 26-17, celebrada el siete de agosto de dos mil diecisiete, artículo se acordó hacer una indicación expresa a la Asamblea Legislativa que "La Corte emite criterio negativo y se opone al proyecto de ley consultado, pues incide en la organización, estructura y funcionamiento del Poder Judicial". 2). En oficio N O HAC-35-2019 del 30 de mayo de 2019, la licenciada Flor Sánchez Rodríguez, Jefa de Área de la Comisión Permanente Ordinaria de Asuntos Hacendarios de la Asamblea Legislativa, solicitó el criterio de la Corte Suprema de Justicia, sobre el proyecto denominado "Ley para fijar topes equitativos a las pensiones de lujo, rediseñar y redistribuir los recursos de la contribución especial solidaria y crear la figura de la Jubilación Obligatoria Excepcional', expediente N° 21.035. La consulta se remitió a estudio de la magistrada Roxana Chacón Artavia, quien en nota de 14 de junio de ese año rindió el respectivo informe, que fue conocido por la Corte Plena en la sesión número 024-2019 del 17 de junio de 2019, artículo XV. En dicha sesión se acordó tener por rendido el informe de la magistrada Chacón y hacerlo de conocimiento de la Comisión Permanente Ordinaria de Asuntos Hacendarios de la Asamblea Legislativa, en respuesta a la consulta formulada, con la indicación expresa de que el proyecto de ley consultado, sí interfiere en la organización y funcionamiento del Poder Judicial. Asimismo, el citado proyecto de ley fue remitido a consulta en dos ocasiones posteriores, cuyos informes fueron rendidos por la señora magistrada Roxana Chacón Artavia y conocidos en las sesiones 39-19 y 47-19, celebradas el 16 de setiembre y 11 de noviembre, ambas de 2019, artículos XIII y XV, respectivamente. En esas oportunidades también se acordó que el proyecto de ley consultado sí afectaba la organización y el funcionamiento del Poder Judicial. (Ver certificación adjunta). 3). En oficio N° AL-CPOECO-615-2019 del 18 de octubre de 2019, la licenciada Nancy Vílchez Obando, Jefa de Área de la Comisión Permanente Ordinaria de Asuntos Económicos de la Asamblea Legislativa, solicitó el criterio de la Corte Suprema de Justicia, sobre el proyecto denominado "Ley para /a contribución solidaria de los pensionados de lujo”, expediente No. 21.537. La consulta se remitió a estudio del magistrado Orlando Aguirre Gómez, quien en nota recibida en la Secretaría General de la Corte el 11 de noviembre del 2019, rindió el correspondiente informe, el cual fue conocido por la Corte Plena en la sesión 0472019 del 11 de noviembre de 2019, artículo XVI. En esa sesión al respecto se acordó tener por rendido el informe y hacerlo de conocimiento de la Comisión Permanente Ordinaria de Asuntos Económicos de la Asamblea Legislativa, en respuesta a la consulta formulada, con la indicación expresa de que el proyecto de ley consultado, sí afecta la organización y funcionamiento del Poder Judicial. II.- Sobre el fondo de la acción: a). La Ley 9796 "Ley para rediseñar y redistribuir los recursos de /a contribución especia/ solidaria" en su numeral 1 establece que su objeto es contribuir con las finanzas públicas al "rediseñar" los topes de pensión máxima y de la pensión exenta de la "contribución especial solidaridad”, establecida entre otros regímenes de pensiones, el del Poder Judicial. Por otra parte, según se infiere del artículo 3 sus fines son: 1. Otorgarle continuidad y aplicabilidad a la contribución solidaria como un aporte para lograr el sostenimiento de las pensiones; 2) contribuir con la eliminación de las desigualdades en los beneficios sociales de las pensiones y jubilaciones, así como en las cargas tributarias y 3) dar sostenibilidad a los sistemas de pensiones mediante las nuevas aportaciones. A pesar de que de lo externado antes en cuanto al objeto y los fines, ni de la lectura integral de la normativa impugnada, se desprende el cause que tomarán las contribuciones obligatorias y especiales de los distintos regímenes sujetos a esa ley, llama la atención la frase "y redistribuir los recursos... " del título, ya que en un principio el proyecto de ley pretendía depositar las contribuciones obligatorias y especiales por un plazo de diez años en un "fondo especia/" creado por el Ministerio de Hacienda, con el fin de que fueran utilizados para el pago de la deuda interna y externa del país. b) En lo que respecta al artículo 4 inciso b) establece que las jubilaciones y pensiones derivadas del régimen de jubilaciones y pensiones del Poder Judicial, estarán sujetas a la contribución especial solidaria, creada en la Ley número 9544 que reformó el régimen de jubilaciones y pensiones del Poder Judicial, con excepción de aquellas cuyo monto no supere los seis salarios base del puesto más bajo pagado en dicho poder. Debe destacarse que la Ley 9544 reformó el régimen de jubilaciones y pensiones del Poder Judicial; entre otras modificaciones, creó la contribución especial solidaria que se indica en el artículo 4 de referencia, lo cual puede constatarse del artículo 236 bis de la Ley Orgánica del Poder Judicial vigente. En lo de interés ese artículo 236 bis adicionado por la Ley 9544 establece: "Contribución especial, solidaria y redistributiva de los pensionados y jubilados. Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla: a) Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso. (...)”. El artículo 225 referido en el numeral transcrito parcialmente en el párrafo anterior, establece que ninguna jubilación deberá ser superior a diez veces el salario base del puesto más bajo pagado en el Poder Judicial; lo cual, en concordancia con el artículo 236 bis enunciado, determina que la contribución especial se aplicaría sobre el exceso de esos diez salarios base, esto hasta la entrada en vigencia de la ley 9796; ya que como se indicó, sólo estarán exentas de la contribución especial aquellas jubilaciones o pensiones que no superen los seis salarios base del puesto más bajo pagado en el Poder Judicial. Esto representa una degradación en el monto final que percibe una persona jubilada o pensionada, o que podría percibir alguna otra al hacerse acreedora de esos derechos fundamentales, puesto que el rango de exención de la contribución especial, se acortó con la reforma al artículo 236 bis de la Ley Orgánica del Poder Judicial, operada mediante la ley impugnada. Lo anterior fue comunicado al Poder Legislativo ante la consulta analizada por la magistrada Roxana Chacón Artavia, mediante el acuerdo de Corte Plena tomado en la sesión número 24-19, celebrada el 17 de junio de 2019, artículo XV, que en lo que interesa indica lo siguiente: "B) LA CONTRIBUCION ESPECIAL, SOLIDARIA Y REDISTRIBUTXVA YA ESTA INCORPORADA EN LA LEY ORGANICA DEL PODER JUDICIAL. Con la Reforma del Régimen de Pensiones y Jubilaciones del Poder Judicial, se introdujo un artículo 236 bis, mediante la Ley No. 9544, del 24 de abril del 2018, se establece una contribución especial, solidaria y redistributiva, para los pensionados. "Señala el artículo: Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla: a) Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso. b) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso. c) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso. d) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso. e) Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%). En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión. Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presente ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial. De lo anterior se infiere que la Ley vigente, establece el tope de las pensiones del Poder Judicial en la base de 10 salarios del sueldo más bajo de la Institución que se fija en la suma de 463000 colones mensuales por diez salarios daría la suma de 4.463.000 colones mensuales de pensión, monto que actualmente, se encuentra exento del pago de la contribución obligatoria y solidaria, La Corte Plena ya tuvo la oportunidad de remitir a la Asamblea Legislativa el fundamento jurídico que se sostuvo en aquel momento, sobre un proyecto similar consultado. El informe rendido por el Magistrado Orlando Aguirre Gómez y aprobado mediante el artículo X del acta No. 028-2015 del 20 de julio de 2015, relativo a la discusión de la "Ley Marco de Contribución Especial de los Regímenes de Pensiones, Expediente Legislativo No. 19.254 Consideramos que el fundamento de ese entonces, aplica por completo al Proyecto en Consulta, por ser muy similar, por lo que se citará parte del informe en lo conducente."... Este proyecto tiene por objetivo crear y regular la contribución especial sobre los montos de pensiones (jubilaciones) que excedan diez veces el salario base más bajo pagado por la Administración Pública, según el índice de salarios de la Dirección General del Servicio Civil. B. ALCANCE DE LA PROPUESTA. Esta ley, de aprobarse, será aplicada a los siguientes regímenes de pensiones: a) Ley No. 7302 del 8 de julio de 1992, Régimen General de Pensiones con Cargo al Presupuesto Nacional (Ley Marco de Pensiones). b) Régimen de Pensiones del Poder Judicial, Ley Orgánica de/ Poder Judicial No. 7333 de/ 5 de mayo de 1993 y sus Reformas. c) Ley No 148 de/ 23 de agosto de 1943, Ley de Pensiones de Hacienda d) Ley NO 264 del 23 de agosto de 1939, Ley de Jubilaciones y Pensiones para los Empleados del Ferrocarril Eléctrico al Pacífico. e) Ley No 4513 del 02 de enero de 1970, Inamovilidad del personal de telecomunicaciones. f) Ley No 15 del 05 de diciembre de 1935, Ley de Pensiones de Músicos de Bandas Militares. g) Ley No 19 del 4 de noviembre de 1944, Ley de Jubilaciones y Pensiones de Empleados de Obras Públicas. h) Ley No 5 del 16 de setiembre de 1939, Régimen de Pensiones del Registro Nacional. Las pensiones y jubilaciones que sobrepasen diez veces el salario base contribuirán en forma especial, solidaria y redistributiva, de acuerdo con la siguiente proporción: a) Sobre el exceso del monto establecido en el artículo 1 y hasta por el veinticinco por ciento (25%) de dicho monto, contribuirán con el veinticinco por ciento (25%) de tal exceso. b) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el treinta y cinco por ciento (35%) de tal exceso. c) Sobre e/ exceso de/ margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso. d) Sobre el exceso de/ margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta y cinco por ciento (55%) de tal exceso. e) Sobre el exceso de/ margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un sesenta y cinco por ciento (65%). f) Sobre el exceso del margen anterior contribuirán con un setenta y cinco por ciento (75%). " C.- SOBRE EL DERECHO A LA JUBILACIÓN, se dijo: "El instituto de la jubilación corresponde a un derecho fundamental de toda persona trabajadora, regulado en los artículos 33 y 73 de la Constitución Política y en la normativa internacional: norma mínima No. 102 de la OIT sobre la Seguridad Social, Convenio Internacional de la OIT NO 118 sobre igualdad de trato en Materia de Seguridad Social, Artículo 22 de /a Declaración de los Derechos Humanos, Artículo 31 de la Carta Internacional Americana de Garantías Sociales, Artículo XI de la Declaración Americana de los Derechos y Deberes del Hombre, Artículo 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales. La Constitución Política establece en el ordinal 50 que el Estado procurará el mayor bienestar a todos los habitantes del país y el numeral 51 dice que el anciano tiene derecho a la protección especial del Estado. La Ley No. 7935 del 25 de octubre de 1999: 'Ley Integral para la Persona Adulta Mayor', cuyo objetivo es garantizar a las personas adultas mayores igualdad de oportunidades y vida digna en todos los ámbitos, en su artículo 3, inciso g), indica que toda persona tiene derecho a una pensión concedida oportunamente, que le ayude a satisfacer sus necesidades fundamentales, haya contribuido o no a un régimen de pensiones. Desde el punto de vista doctrinario se ha señalado que la jubilación por vejez tiene un objetivo determinado, que es el asegurar a aquellos trabajadores que se retiran total o parcialmente de la actividad una compensación que les permita mantener su estándar de vida como si aún estuviera en actividad Es una ayuda basada en la solidaridad a la cual tienen derecho por haber contribuido a ella durante su vida útil con parte de los ingresos producto de su trabajo. D.- CRITERIO. ANÁLISIS DEL PROYECTO DE LEY. El proyecto propone crear y regular una “contribución especial” sobre los montos de pensiones que excedan diez veces el salario base más bajo pagado por la Administración Pública. Dicha contribución es progresiva del 25% al 75%, tomando como base rangos salariales que se van incrementando según /a esca/a que corresponda. Por tratarse de una limitación de derechos fundamentales asociados a toda persona trabajadora, se debe rea/izar un análisis para verificar el cumplimiento de los principios constitucionales de razonabilidad, sea necesidad, idoneidad y proporcionalidad, así como en relación con los derechos también fundamentales de igualdad e irretroactividad, y desde luego e/ impacto que pueda producir la modificación en el Poder Judicial, de llegarse a aprobar. 1) Análisis de razonabilidad. La Sala Constitucional en sentencia 2010-1625 señaló: 'Cuando de restricción a determinados derechos se trata, esta regla impone e/ deber de que dicha limitación se encuentre justificada, por una razón de peso suficiente para legitimar su contradicción con el principio general de igualdad. Lo anterior, por cuanto un acto limitativo de derechos es razonable cuando cumple con una triple condición: debe ser necesario, idóneo y proporcional'. Un acto limitativo de derechos es razonable cuanto cumple con una triple condición: necesario, idóneo y proporcional. La necesidad de una medida hace directa referencia a /a existencia de una base fáctica que haga preciso proteger algún bien o conjunto de bienes de la colectividad o de un determinado grupo. En el proyecto se apunta que la medida es necesaria para solucionar el problema del financiamiento de los fondos públicos de pensiones que sostienen actualmente las pensiones altas; es decir, tiene un objetivo c/aro. Sin embargo, a efecto de determinar si la medida propuesta es razonable, también debe estar claro que el menoscabo que va a generar en los derechos fundamentales de los jubilados, quienes recibirán un monto menor de pensión, es la más idónea; o sea, que no hay otra que pueda alcanzar los mismos objetivos sin perjudicar a los administrados. Para ello resulta imperioso contar con un estudio que permita determinar no solo el alcance del proyecto, sino, además, los parámetros utilizados por el legislador para concluir que la opción propuesta es la más idónea. La proporcionalidad hace referencia a un juicio de comparación entre la finalidad perseguida con el acto y el tipo de restricción que se impone o pretende imponer, de manera que la limitación no sea marcadamente superior al beneficio que con ella se pretende obtener en beneficio de la colectividad. Al ser esta una valoración cuantitativa, su resolución es sencilla. El objetivo del proyecto es solucionar el problema de financiamiento de los fondos que sostienen las pensiones; sin embargo, la medida que se propone para ello es quitar de un 25% a un 75% del monto de las pensiones que sobrepasen 10 veces el salario más bajo de la Administración Pública, Ello implica que en algunos casos la persona va a recibir, so/o por concepto de la contribución hasta un 50% menos de/ monto que venía devengando, además de los otros rebajos que deben hacerse conforme a la ley. Con esta medida, lejos de resolverse el problema se generaría uno aún más grave, cuál sería el empobrecimiento desmedido de so/o algunos de los jubilados en los términos que se explicarán. Desde esa perspectiva, los montos de contribución propuestos son desproporcionados y la medida que se pretende imponer no es razonable. 2) Principio de igualdad. Este principio puede definirse como igualdad entre iguales y desigualdad entre desiguales, lo que implica que no puede tratarse de igual manera situaciones que son diversas. El proyecto objeto de análisis impone una contribución a varias pensiones de distintos regímenes sin tomar en consideración las diferencias existentes entre ellos. Especial mención cabe hacer en este punto al régimen de pensiones del Poder Judicial. El Fondo de Jubilaciones y Pensiones del Poder Judicial, es un régimen de pensiones en el cual, las personas jubiladas siguen contribuyendo con un 11% de /o devengado por concepto de jubilación (y puede aumentarse hasta un 15%). Por ello, de aprobarse el proyecto, se estaría aplicando en este régimen, una contribución excesiva, colocando a los pensionados del Poder Judicial en una situación de verdadero sacrificio y discriminación en relación con pensionados de los otros regímenes, afectando sensiblemente su situación, pues no debe olvidarse las deducciones legales: 5% de Seguro de Maternidad y Enfermedad: entre el 10% y el 15% de Impuesto sobre la Renta y un 9% de aporte al Fondo de Pensiones de/ Poder Judicial. Por esta razón, si a esos rebajos se les suma de un 25% a un 75% de la contribución que se pretende, se estaría ante un rebajo a todas luces irrazonable y desproporcionado. Los otros regímenes tienen otras particularidades: las cotizaciones de los trabajares son inferiores a las que hacen los servidores del Poder Judicial y los aportes que hacen los jubilados tampoco son iguales. De esta manera, se reitera, no puede tratarse a todos de la misma forma. El caso concreto del Fondo de Pensiones de Poder Judicial tiene sus particularidades que merecen un trato distinto a los demás regímenes. 3) Contribución confiscatoria y doble carga impositiva Según el proyecto, la contribución debe ingresar a la caja única del Estado, y su objetivo es fortalecer los distintos regímenes, la formulación no es nada clara, pues no se especifica como se llevará a cabo ese fortalecimiento en lo que se refiere al Fondo del Poder Judicial ni a los otros sistemas. En lo que se refiere al Poder Judicial se contrarían las normas que regulan la administración del Fondo del Poder Judicial, porque de acuerdo con estas últimas esa administración le corresponde al Consejo Superior del Poder Judicial. De esta manera, la contribución no es ni menos que un impuesto más a las pensiones, de manera que, si estas ya deben cancelar de un 10% a un 15% de Impuesto sobre la Renta, la contribución se convierte en una doble carga tributaria y en un acto confiscatorio fuera de toda razón. 4) Irretroactividad. El artículo 34 de la Constitución Política dispone: “A ninguna ley se le dará efecto retroactivo en perjuicio de persona, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas”. Este proyecto propone que la contribución se aplique también a las personas que actualmente gozan del derecho jubilatorio, lo que constituye una lesión a este principio, toda vez que de manera intempestiva los beneficiarios verían reducido el monto de la pensión en grandes proporciones, la cual incluso alcanza aproximadamente el 50% de lo devengado. Por ello, el proyecto tampoco resulta socialmente viable porque incide directamente en un derecho fundamental y los intereses de una población vulnerable como lo es la persona adulta mayor. Quienes en la actualidad gozan de este derecho es porque cumplieron los requisitos establecidos, sirvieron por un plazo determinado y realizaron las cotizaciones requeridas. Además, tienen un presupuesto familiar que no puede alterarse de un día para otro. Debe tomarse en consideración que, al avanzar la edad, se incrementan algunas necesidades básicas, como lo son la atención médica y el cuido, por lo que no puede afectarse en tan alta proporción a los adultos mayores, dejándolos únicamente con e/ 60%, 65% 0 70% del monto al que estaban acostumbrados a recibir. c). Ante ese panorama, además es importante señalar que en la sesión de la Corte Plena número 47-2019 del 11 de noviembre de 2019, artículo XVI, se tuvo por rendido un informe vertido por el señor Magistrado Orlando Aguirre Gómez, el cual consideró en lo que a la creación de la contribución especial se refiere, lo siguiente: “La Corte Plena ya tuvo la oportunidad de remitir a la Asamblea Legislativa el fundamento jurídico que se sostuvo en aquel momento, sobre un proyecto similar consultado. El informe rendido y aprobado mediante el artículo X del acta n.° 028-2015 del 20 de julio de 2015, relativo a la discusión de la “Ley Marco de Contribución Especial de los Regímenes de Pensiones, Expediente Legislativo n.° 19.254.”-Consideramos que el fundamento de ese entonces, resulta muy similar al Proyecto en Consulta, por lo que se citará parte del informe en lo conducente. “… C.- SOBRE EL DERECHO A LA JUBILACIÓN, se dijo: “El instituto de la jubilación corresponde a un derecho fundamental de toda persona trabajadora, regulado en los artículos 33 y 73 de la Constitución Política y en la normativa internacional: norma mínima Nº102 de la OIT sobre la Seguridad Social, Convenio Internacional de la OIT Nº 118 sobre igualdad de trato en Materia de Seguridad Social, Artículo 22 de la Declaración de los Derechos Humanos, Artículo 31 de la Carta Internacional Americana de Garantías Sociales, Artículo XI de la Declaración Americana de los Derechos y Deberes del Hombre, Artículo 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales. La Constitución Política establece en el ordinal 50 que el Estado procurará el mayor bienestar a todos los habitantes del país y el numeral 51 dice que el anciano tiene derecho a la protección especial del Estado. La Ley Nº. 7935 del 25 de octubre de 1999: ‘Ley Integral para la Persona Adulta Mayor’, cuyo objetivo es garantizar a las personas adultas mayores igualdad de oportunidades y vida digna en todos los ámbitos, en su artículo 3, inciso g), indica que toda persona tiene derecho a una pensión concedida oportunamente, que le ayude a satisfacer sus necesidades fundamentales, haya contribuido o no a un régimen de pensiones. Desde el punto de vista doctrinario se ha señalado que ‘la jubilación por vejez tiene un objetivo determinado, que es el asegurar a aquellos trabajadores que se retiran total o parcialmente de la actividad una compensación que les permita mantener su estándar de vida como si aún estuviera en actividad. Es una ayuda basada en la solidaridad a la cual tienen derecho por haber contribuido a ella durante su vida útil con parte de los ingresos producto de su trabajo’. D.- CRITERIO. ANÁLISIS DEL PROYECTO DE LEY. El proyecto propone crear y regular una ‘contribución especial’ sobre los montos de pensiones que excedan diez veces el salario base más bajo pagado por la Administración Pública. Dicha contribución es progresiva del 25% al 75%, tomando como base rangos salariales que se van incrementando según la escala que corresponda. Por tratarse de una limitación de derechos fundamentales asociados a toda persona trabajadora, se debe realizar un análisis para verificar el cumplimiento de los principios constitucionales de razonabilidad, sea necesidad, idoneidad y proporcionalidad, así como en relación con los derechos también fundamentales de igualdad e irretroactividad, y desde luego el impacto que pueda producir la modificación en el Poder Judicial, de llegarse a aprobar. 1) Análisis de razonabilidad. La Sala Constitucional en sentencia 2010-1625 señaló: ‘Cuando de restricción a determinados derechos se trata, esta regla impone el deber de que dicha limitación se encuentre justificada, por una razón de peso suficiente para legitimar su contradicción con el principio general de igualdad. Lo anterior, por cuanto un acto limitativo de derechos es razonable cuando cumple con una triple condición: debe ser necesario, idóneo y proporcional’. Un acto limitativo de derechos es razonable cuanto cumple con una triple condición: necesario, idóneo y proporcional. La necesidad de una medida hace directa referencia a la existencia de una base fáctica que haga preciso proteger algún bien o conjunto de bienes de la colectividad o de un determinado grupo. En el proyecto se apunta que la medida es necesaria para solucionar el problema del financiamiento de los fondos públicos de pensiones que sostienen actualmente las pensiones altas; es decir, tiene un objetivo claro. Sin embargo, a efecto de determinar si la medida propuesta es razonable, también debe estar claro que el menoscabo que va a generar en los derechos fundamentales de los jubilados, quienes recibirán un monto menor de pensión, es la más idónea; o sea, que no hay otra que pueda alcanzar los mismos objetivos sin perjudicar a los administrados. Para ello resulta imperioso contar con un estudio que permita determinar no solo el alcance del proyecto, sino, además, los parámetros utilizados por el legislador para concluir que la opción propuesta es la más idónea. La proporcionalidad hace referencia a un juicio de comparación entre la finalidad perseguida con el acto y el tipo de restricción que se impone o pretende imponer, de manera que la limitación no sea marcadamente superior al beneficio que con ella se pretende obtener en beneficio de la colectividad. Al ser esta una valoración cuantitativa, su resolución es sencilla. El objetivo del proyecto es solucionar el problema de financiamiento de los fondos que sostienen las pensiones; sin embargo, la medida que se propone para ello es quitar de un 25% a un 75% del monto de las pensiones que sobrepasen 10 veces el salario más bajo de la Administración Pública. Ello implica que en algunos casos la persona va a recibir, solo por concepto de la contribución hasta un 50% menos del monto que venía devengando, además de los otros rebajos que deben hacerse conforme a la ley. Con esta medida, lejos de resolverse el problema se generaría uno aún más grave, cuál sería el empobrecimiento desmedido de solo algunos de los jubilados, en los términos que se explicarán. Desde esa perspectiva, los montos de contribución propuestos son desproporcionados y la medida que se pretende imponer no es razonable. 2) Principio de igualdad. Este principio puede definirse como igualdad entre iguales y desigualdad entre desiguales, lo que implica que no puede tratarse de igual manera situaciones que son diversas. El proyecto objeto de análisis impone una contribución a varias pensiones de distintos regímenes sin tomar en consideración las diferencias existentes entre ellos. Especial mención cabe hacer en este punto al régimen de pensiones del Poder Judicial. El Fondo de Jubilaciones y Pensiones del Poder Judicial, es un régimen de pensiones en el cual, las personas jubiladas siguen contribuyendo con un 11% de lo devengado por concepto de jubilación (y puede aumentarse hasta un 15%). Por ello, de aprobarse el proyecto, se estaría aplicando en este régimen, una contribución excesiva, colocando a los pensionados del Poder Judicial en una situación de verdadero sacrificio y discriminación en relación con pensionados de los otros regímenes, afectando sensiblemente su situación, pues no debe olvidarse las deducciones legales: 5% de Seguro de Maternidad y Enfermedad: entre el 10% y el 15% de Impuesto sobre la Renta y un 9% de aporte al Fondo de Pensiones del Poder Judicial. Por esta razón, si a esos rebajos se les suma de un 25% a un 75% de la contribución que se pretende, se estaría ante un rebajo a todas luces irrazonable y desproporcionado…Los otros regímenes tienen otras particularidades: las cotizaciones de los trabajares son inferiores a las que hacen los servidores del Poder Judicial y los aportes que hacen los jubilados tampoco son iguales. De esta manera, se reitera, no puede tratarse a todos de la misma forma. El caso concreto del Fondo de Pensiones del Poder Judicial tiene sus particularidades que merecen un trato distinto a los demás regímenes. 3) Contribución confiscatoria y doble carga impositiva (…) la contribución no es ni menos que un impuesto más a las pensiones, de manera que, si estas ya deben cancelar de un 10% a un 15% de Impuesto sobre la Renta, la contribución se convierte en una doble carga tributaria y en un acto confiscatorio fuera de toda razón. 4) Irretroactividad. El artículo 34 de la Constitución Política dispone: ‘A ninguna ley se le dará efecto retroactivo en perjuicio de persona, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas’. Este proyecto propone que la contribución se aplique también a las personas que actualmente gozan del derecho jubilatorio, lo que constituye una lesión a este principio, toda vez que de manera intempestiva los beneficiarios verían reducido el monto de la pensión en grandes proporciones, la cual incluso alcanza aproximadamente el 50% de lo devengado. Por ello, el proyecto tampoco resulta socialmente viable porque incide directamente en un derecho fundamental y los intereses de una población vulnerable como lo es la persona adulta mayor. Quienes en la actualidad gozan de este derecho es porque cumplieron los requisitos establecidos, sirvieron por un plazo determinado y realizaron las cotizaciones requeridas. Además, tienen un presupuesto familiar que no puede alterarse de un día para otro. Debe tomarse en consideración que, al avanzar la edad, se incrementan algunas necesidades básicas, como lo son la atención médica y el cuido, por lo que no puede afectarse en tan alta proporción a los adultos mayores, dejándolos únicamente con el 60%, 65% o 70% del monto al que estaban acostumbrados a recibir….” (Lo resaltado no es prístino). Puede verificarse que si en aquel momento la metodología del cálculo de la contribución especial solidaria era desproporcionada e irracional, puesto que tiende al empobrecimiento de las personas jubiladas o pensionadas; ahora con la reforma operada en la ley 9796, existe una agravación más fuerte, por el detrimento mayor que sufrirá el monto final de jubilación o pensión que percibe una persona jubilada o pensionada o la que esté por adquirir esos derechos, puesto que el rango de exención se acortó con la ley impugnada. Debe tenerse presente que a las jubilaciones y pensiones actuales y las que a futuro se otorguen, están topadas según el artículo 225 de la Ley Orgánica del Poder Judicial, se les aplica el rebajo de un 13% de cotización mensual, un 5.50% de seguro de Maternidad y Enfermedad y entre el 10 % y 25% del impuesto sobre la Renta porcentajes que son tomados del total del ochenta y dos por ciento (82%) correspondiente a la jubilación ordinaria, lo que devendría en un rebajo de cerca de la mitad del haber jubilatorio, y ello es contrario a las disposiciones convencionales que permiten una reducción de dicha prestación. Véase que tanto los citados Convenios referidos en la transcripción anterior, como la Recomendación No. 43 de la Organización Internacional de Trabajo son contestes al establecer que la jubilación o pensión debe satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el periodo de actividad profesional”. Es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa. Ese cuadro normativo no se tomó en cuenta al promulgarse la ley recurrida. Lo anterior fue considerado en el informe rendido por la señora Magistrada Roxana Chacón Artavia, en la sesión de Corte Plena número 47-19, celebrada el 11 de noviembre de 2019, artículo XVI, donde claramente se indicó lo siguiente: “III.- LAS PERSONAS PENSIONADAS DEL PODER JUDICIAL TAMBIÉN CONTRIBUYEN CON UN PORCENTAJE DEL 13% DE SU PENSION, AL SOSTENIMIENDO DEL FONDO DE JUBILACIONES Y PENSIONES. Desde el año 1996, se introdujo una reforma a la Ley Orgánica del Poder Judicial, Ley No. 7605 del 2 de mayo de 1996, en su artículo 236 para que los servidores activos y las personas pensionadas por éste Régimen, en forma obligatoria cotizaran para el Fondo de Pensiones y Jubilaciones del Poder Judicial. Así, en el artículo 236 inciso 1) se indicó: “1.- El nueve por ciento (9%) de todos los sueldos activos, así como de las jubilaciones y pensiones a cargo del Fondo. Este porcentaje se retiene mensualmente, y por razones de necesidad del Fondo y con base en estudios actuariales, la Corte podrá aumentar este porcentaje hasta un 15% por ciento.” Con la reforma que se hizo a la Ley Orgánica del Poder Judicial (Ley No.9544 del 24 de abril de 2018) también se reformó el artículo 236 que establece los aportes que recibe el Fondo de Pensiones y Jubilaciones del Poder Judicial. Se definió entonces un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente. Nos parece de especial interés hacer ver a la Asamblea Legislativa, que en esta oportunidad al final del artículo 236 se indicó lo siguiente: “En ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.” (La negrita no corresponde al original del texto de la ley citado.” Así las cosas, el legislador al reformar la Ley Orgánica del Poder Judicial, tenía claro que las pensiones de los servidores judiciales no serían gravadas por encima de un 55% del monto bruto de la pensión. Incluyendo aquí la cotización obligatoria y la cotización especial, solidaria y redistributiva ya acordada por Ley. Sin embargo, las dos últimas iniciativas de Ley presentadas en el trámite del Proyecto de Ley No. 21.035, remiten a obtener una escala de porcentajes a aplicar a las pensiones del Poder Judicial, sin considerar que ya existe una doble cotización de parte de los obligados para con el Fondo de Pensiones y Jubilaciones del Poder Judicial, por un lado la contribución obligatoria de un 13% quedando disponible únicamente de la pensión un 42% como máximo para fijar la contribución solidaria especial y redistributiva a repartir de este porcentaje en la escala sugerida. Ello para no violentar la disposición ya citada, que no se podrá superar el 55% del monto bruto de la pensión. Que precisamente, hecha (sic) de menos esta Magistrada, que el Proyecto de Ley no contenga estudios técnicos que tomen en consideración la cotización establecida en la Ley Orgánica del Poder Judicial, y la que se propone en el Proyecto consultado, llamada contribución solidaria, especial y redistributiva. No se han analizado estos dos rubros para determinar si las iniciativas de Ley recientes, no estarían sobrepasando el límite fijado por el Legislador cuando reformo el Capítulo relativo al Fondo de Jubilaciones y Pensiones del Poder Judicial y determinó que no podrían sobrepasar el 55% del monto de la pensión. IV.- LAS PERSONAS PENSIONADAS DEL PODER JUDICIAL TAMBIÉN CONTRIBUYEN DE SUS PENSIONES CON EL IMPUESTO SOBRE LA RENTA De acuerdo a la Ley 7092, Ley de Impuesto sobre la Renta, se establece otra obligación para los pensionados del Poder Judicial de contribuir de sus pensiones con la Renta. Y recientemente, en el mes de diciembre del 2018 se promulgo la Ley de Fortalecimiento de la Finanzas Públicas, Ley No. 9635, que vino a reformar varios de los artículos de la Ley 7092. Todas estas cargas impuestas a las pensiones hacen que los montos en estos últimos años hayan aumentado en forma considerable, atendiendo a la situación económica que vive nuestro país. Sin embargo, es importante revisar las obligaciones que ya ha impuesto el Legislador sobre este Sector de la Población, los pensionados, para no sobrecargarlos e imponer dobles cotizaciones, que los coloquen en serio riesgo de no poder atender sus obligaciones económicas y de subsistencia.” Se debe tener especial cuidado con las reducciones que se impongan para que no resulten confiscatorias, pues como se indicó, además de esta contribución especial solidaria sobre la base de los seis salarios base citados, no debe perderse de vista que como se explicó, una jubilación ordinaria fijada en un ochenta y dos por ciento (82%), que soporta las cargas de ley que podrían ser de hasta el quince por ciento (15%) y que actualmente es del trece por ciento (13%) de contribución al Fondo, un cinco punto cinco por ciento (5.50%) al Régimen de la CCSS y un diez por ciento (10%) a un veinticinco porciento (25%) por concepto de renta, ya sufre prácticamente una disminución de entre un cuarenta y cinco por ciento (45%) y un sesenta por ciento (60%) del salario que percibía la persona jubilada cuando se encontraba activa laboralmente (esto sin tomar en cuenta que el cálculo no se está haciendo con base en el salario actual, sino con una prorrata de los últimos veinte años de labor). Situación que tampoco es ajena a aquellas jubilaciones o pensiones que ya se otorgan y se disfrutan, pues actualmente perciben gravámenes desde un treinta y uno (31%) a un treinta y cinco por ciento (35%) del total del derecho, lo que sumado al porcentaje más bajo de cuota solidaria -veinticinco por ciento (25%)-, arroja un total de sesenta por ciento (60%), lo que se torna confiscatorio y desproporcional, además que violenta el principio de irretroactividad de la ley, contemplado en el artículo 34 de la Constitución Política. Se reitera que, dicha condición va en contra de lo dispuesto en el Convenio n° 102 de OIT, el que en su artículo 67 establece que: “Con respecto a cualquier pago periódico al que se aplique el presente artículo: (a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66”. Y la Recomendación n° 43 de ese organismo es conteste al establecer que la pensión debe satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el periodo de actividad profesional”. Es decir, que se debe respetar el nivel de vida que la persona servidora judicial tenía durante su vida profesional activa. Expresamente indica: “(b) En los regímenes con cotizaciones proporcionales a los salarios, los asegurados que tuvieren abonadas en su cuenta las cotizaciones correspondientes a la duración media de la vida profesional activa deberían obtener una pensión que corresponda a su situación social durante el período de actividad profesional. A este efecto, la pensión garantizada a los asegurados que tengan acreditados treinta años efectivos de cotización no debería ser inferior a la mitad del salario asegurado desde el ingreso en el seguro o durante un período determinado que preceda inmediatamente a la liquidación de la pensión”. Por otra parte, cada persona servidora judicial, cotiza durante toda su vida laboral un determinado porcentaje que afecta la totalidad de sus ingresos, por lo que no existe explicación alguna que justifique que se excepcionen menos salarios base que en otros regímenes. La justificación es aún más necesaria e indispensable, cuando existen personas servidoras judiciales que, habiendo cotizado el doble, triple, cuádruple o aún más veces que otras, se les termina imponiendo una cantidad menor de salarios base como excepción de la contribución especial, en relación con otros regímenes. En tal sentido, se advierte que cuando el legislador fijó el rango de exención, no indicó los motivos para escogerlo, explicación que debió de haber fundamentado en criterios técnicos y especialmente, actuariales que justificaran la decisión adoptada y no solamente en la necesidad de eliminar “las desigualdades en los beneficios sociales de las pensiones y jubilaciones, así como en las cargas tributarias”. A mayor abundamiento, tómese en cuenta que las personas servidoras judiciales en el momento de acogerse a su jubilación continúan contribuyendo al Fondo de Jubilaciones y Pensiones del Poder Judicial con un aporte obrero de un trece por ciento (13%) según el artículo 236 LOPJ, a diferencia de otros regímenes de jubilaciones y pensiones, por ello el monto de su jubilación se ve disminuido y además se deben agregar otras deducciones como es el rebajo por concepto de gastos administrativos de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, creado según el artículo 239 de la citada normativa, que establece una comisión por gastos administrativos de un cinco por mil de los sueldos que devengan las personas servidoras judiciales, así como de las jubilaciones y pensiones a cargo del fondo, lo que podría verse como confiscatorio (artículo 40 Constitucional), violatorio al principio de irretroactividad de la ley (artículo 34 de nuestra Carta Magna) al existir derechos patrimoniales adquiridos y consolidados por una ley anterior y conculca el principio de igualdad establecido en el numeral 33 ibídem. En apoyo de lo estimado, es importante reiterar el informe aprobado por la Corte Plena en sesión número 26-17, del 7 de agosto de 2017, artículo XXX, donde se señaló en lo que interesa lo siguiente: “Se reitera, esta Corte ha sido respetuosa y lo será de los estudios técnicos que se emitan para procurar la sostenibilidad del Fondo, no obstante, no puede obviarse que se está en presencia de derechos fundamentales y es por ello que también la reforma merece un estudio apegado a la técnica actuarial pero también con perspectiva de derechos humanos. En ese sentido cabe destacar que la Recomendación n° 43 de la OIT “Recomendación sobre el seguro de invalidez, vejez y muerte”, en el punto 13), incisos a) y b) señala que: “(a) Para garantizar a los trabajadores una vejez sin privaciones, la pensión debería cubrir las necesidades esenciales. Conviene, por consiguiente, que la pensión garantizada a todo pensionado que haya cumplido un período de prueba determinado se fije teniendo debidamente en cuenta el coste de vida. (b) En los regímenes con cotizaciones proporcionales a los salarios, los asegurados que tuvieren abonadas en su cuenta las cotizaciones correspondientes a la duración media de la vida profesional activa deberían obtener una pensión que corresponda a su situación social durante el período de actividad profesional. A este efecto, la pensión garantizada a los asegurados que tengan acreditados treinta años efectivos de cotización no debería ser inferior a la mitad del salario asegurado desde el ingreso en el seguro o durante un período determinado que preceda inmediatamente a la liquidación de la pensión. Es claro entonces que tanto el Convenio n° 102 como la Recomendación n° 43 de la Organización Internacional de Trabajo son contestes al establecer que la jubilación y pensión deben satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el periodo de actividad profesional”. Es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa. No se desconoce la necesidad de hacer reformas al Fondo de Jubilaciones y Pensiones, con el fin de procurar la sostenibilidad, pero estas deben responder revestirse de idoneidad y razonabilidad, tal y como lo indicó la Sala Constitucional en el voto n° 2010-1625 de las 9:30 horas del 27 de enero de 2010 al declarar inconstitucional el tope a las pensiones establecido en el artículo 234 de la Ley Orgánica del Poder Judicial. Lo anterior es conteste con lo dicho por la Comisión Interamericana de Derechos Humanos cuando al analizar la admisibilidad del caso “Admisibilidad y Fondo Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras contra Perú”[1], esbozó que el artículo 26 mencionado, no es excluyente de la posibilidad de que un Estado imponga ciertas restricciones al ejercicio de los derechos incorporados en esa norma, siempre y cuando se haya hecho un análisis conjunto de la afectación individual del derecho (en este caso a la jubilación y la pensión) con relación a las implicaciones colectivas de la medida.”. (El destacado es suplido). d).- Se debe indicar que el artículo 236 de la Ley Orgánica del Poder Judicial, que define los ingresos del Fondo de Jubilaciones y Pensiones del Poder Judicial, mantiene el 13% del aporte que deben hacer las personas servidoras judiciales activas a las pensionadas y jubiladas a diferencia de otros regímenes de jubilaciones donde una vez jubilada o pensionada la persona no debe seguir cotizando. Esa condición debe ser valorada de manera integral con el resto del articulado que se mencionó en los puntos anteriores y donde también se establecen montos que disminuyen el porcentaje aprobado para la jubilación con motivo de los rebajos por cotización, contribución especial, solidaria y redistributiva, que fueron establecidos en la norma impugnada, además del impuesto de la renta. Por otra parte, se señala que el Fondo de Jubilaciones y Pensiones del Poder Judicial tiene las mismas características que un fondo de la seguridad social (artículos 73 y 177 constitucionales) y su naturaleza ha sido analizada por parte de esa Sala en el voto número 2014-20474, de las quince horas y cuarenta y cinco minutos del dieciocho de diciembre de dos mil catorce, de la siguiente forma: III. Sobre la naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial.- Para este Tribunal el sistema de jubilación y pensión del Poder Judicial consiste en un “régimen de reparto”, en el que concurren contribuciones tanto de los trabajadores y ex-servidores, como fondos públicos, dados los aportes del Poder Judicial como patrono, y el del Estado en sí. Ergo, la naturaleza de este régimen de previsión corresponde al campo, por un lado, del derecho de la seguridad social, y, por el otro, al derecho público en virtud de la naturaleza estatutaria de la relación de los servidores para con el Estado. Así las cosas, resulta evidente que el sistema en cuestión tiene exactamente las mismas características que un fondo de la seguridad social, como se colige de la lectura del numeral 73 de la Constitución Política: “Artículo 73. Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine”. En definitiva, el Fondo de Jubilaciones y Pensiones del Poder Judicial está constituido en beneficio de los trabajadores judiciales, que se sostiene financieramente merced a un sistema de contribución forzosa tripartito del Estado, Poder Judicial como patrono, junto con servidores y jubilados judiciales, y que tiene como fin proteger a estos últimos de contingencias como vejez, invalidez o muerte. Se presentan los elementos necesarios para considerar al Fondo de Jubilaciones y Pensiones del Poder Judicial como un sistema de seguridad social de reparto, lo que irremediablemente implica que debe regirse de acuerdo con lo estatuido en la Constitución Política y los principios que informan los regímenes de seguridad social. (Sentencia número 2011-10513, de las quince horas un minutos del diez de agosto de dos mil once. En el mismo sentido sentencia número 2012-004108, de las catorce horas treinta minutos del veintisiete de marzo de dos mil doce).” e).- Se reitera, las personas jubiladas y pensionadas del Poder Judicial continúan cotizando al régimen el mismo porcentaje de las personas trabajadoras, actualmente de un 13%, por lo que cualquier aporte solidario adicional, debe partir de este porcentaje ya aportado. También se debe considerar que los jubilados y pensionados del régimen del Poder Judicial, además de este aporte obligatorio al Fondo de Jubilaciones y Pensiones del 13%, deben aportar al Seguro de Enfermedad y Maternidad de la CCSS, un 5.50 0/0 e igualmente pagar el impuesto sobre la renta, cuyos rangos alcanzan entre 10% y 25%, según los topes definidos por el Ministerio de Hacienda. Se destaca que quienes pertenecen al Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social no siguen aportando al régimen ni pagan lo correspondiente al Seguro de Enfermedad y Enfermedad, y ello representa un trato desigual para las personas exservidoras judiciales. Es por esto, que este aporte solidario no puede sobrepasar un 20%, considerando el 13% ya aportado, ya que, de lo contrario, la totalidad de las deducciones serían confiscatorias y atentarían contra la normativa internacional y constitucional establecida en esta materia. Asimismo, con relación al impuesto solidario se estima que al ser una carga impositiva se deben respetar los principios constitucionales que rigen la materia tributaria, como el principio de reserva de ley, proporcionalidad, capacidad económica, no confiscatoriedad, entre otros. Y que entre todos esos principios es de especial interés resaltar el principio de no confiscatoriedad en relación con el derecho a la propiedad y lo expuesto por la Sala Constitucional en la sentencia 2657-2001 de las quince horas quince minutos del cuatro de abril de dos mil uno, que indicó lo siguiente: "IV. Sobre el argumento de que el tributo es confiscatorio: El Estado puede tomar parte proporcional de la renta que genera el particular, para sufragar sus gastos, pero siempre que no llegue a anular la propiedad como tal, como sería el caso de que el tributo absorba totalmente la renta. Si la Constitución protege el derecho de propiedad al patrimonio integral, no se puede reconocer y admitir que otras disposiciones lo destruyan. Así, para ser constitucionales, los tributos no deben desnaturalizar otros derechos fundamentales, la Constitución asegura la inviolabilidad de la propiedad privada, así como su libre uso y disposición y prohíbe la confiscación, por lo que no se puede permitir una medida de Tributación que vaya más allá de lo razonable y proporcionado. […]. Si la Constitución en su artículo 45 establece que la propiedad es inviolable, y en su artículo 40 que nadie será sometido a pena de confiscación, es indudable que el tributo no puede ser tal que haga ilusorias tales garantías. Pero sí se puede establecer como principio, que se considera confiscatorio el gravamen que exceda la capacidad económica o financiera del contribuyente, o bien, si el impuesto absorbe una parte sustancial de la operación gravada, […]. (Resaltado nuestro).”. Por lo anterior, se considera que las reducciones que se imponen resultan confiscatorias, pues como se indicó, además de esta contribución solidaria, no debía perderse de vista que una jubilación ordinaria fijada en un ochenta y dos por ciento (82%) que soporta las cargas de ley del trece por ciento (13%) de contribución al Fondo, un cinco punto cinco por ciento (5.50 0/0) al Régimen de la CCSS y un diez por ciento (10%) al veinticinco por ciento (25%) por concepto de renta; ya sufre una disminución de un cuarenta y seis por ciento (46%) al sesenta y uno por ciento (61%) -según esos cálculos-, que percibía la persona jubilada cuando se encontraba activa laboralmente, sin tomar en cuenta además que el cálculo no se hizo en ese momento con base en el salario actual, sino con una prorrata de los últimos veinte años de labor), lo que a todas luces podría resultar confiscatorio y desproporcional, en consecuencia contrario a lo estipulado en materia convencional e inconstitucional. Por todo lo expuesto, puede concluirse que: 1-La modificación de la contribución especial solidaria establecida en la norma impugnada afecta el proyecto de vida de todas las personas servidoras judiciales, porque significa una disminución arbitraria y desigual de la jubilación y dado el porcentaje de reducción del monto que se paga como reconocimiento jubilatorio, se determina que es confiscatoria. Lo anterior por cuanto, agrava ingresos de menor rango y a la vez agrava de nuevo ingresos por pensión o jubilación de mayor rango, tomándose como partida los montos de ingresos brutos sin considerar que sobre tales ingresos ya se deducen porcentualmente impuestos sobre la renta, aporte al régimen de seguridad social y la referida contribución solidaria, lo que implica que, la nueva figura que se impone es ciertamente una doble imposición de impuestos. Además de ello el remedio que se busca provoca un beneficio ínfimo frente al enorme perjuicio que se le ocasionaría solo a algunas familias costarricenses. También, disminuye incluso el monto sobre el que inicia la contribución solidaria, pasando de diez salarios base a seis salarios base en el caso del Poder Judicial, lo que no aplica a los demás regímenes básicos involucrados en dicha norma. Ello claramente advierte una afectación a pensiones que lógicamente tienen menor poder adquisitivo, siendo que a la vez se perjudica aún más a las personas que cuentan con un rango de ingreso por pensión superior que ya están afectadas con la figura de la contribución solidaria. Bajar del monto de 10 salarios mínimos a 6 salarios mínimos, manteniendo la misma escala de deducción por porcentajes que inician siempre en un 35%, evidentemente vulnera el Principio de Razonabilidad, amén de que los otros regímenes, en algunos casos como lo es el del Magisterio solo sufre la recaudación de la Contribución Solidaria y no la cotización porcentual que igualmente afecta al Régimen del Poder Judicial cuando las personas servidoras judiciales bajo su régimen se pensionan o jubilan. 2- No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral. Con ello, se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario —de cuatro veces más que en otros regímenes-, recibirían un beneficio menor. 3- Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse. 4- La población judicial está ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral. 5- La regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida. 6- La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado. Lo anterior además implica una aplicación retroactiva de la ley, aspecto prohibido por el artículo 34 de la Constitución Política. El impuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida. 7- Se causa un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad (…)”.

10.- Por escritos aportados a la Sala el 1° de junio de 2020, Luis Antonio Chang Pizarro y Silenne Castro Vindas, en su condición de jubilados del Poder Judicial, solicitan que se les tenga como coadyuvantes activos de este proceso.

11.- Por escrito aportado a la Sala el 2 de junio de 2020, María del Pilar Vargas Acosta, en su condición de jubilada del Poder Judicial, solicita que se le tenga como coadyuvante activa.

12.- Por escrito aportado a la Sala el 2 de junio de 2020, Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas y Alfredo Jones León, en su condición de jubilados del Poder Judicial, solicitan que se les tenga como coadyuvantes activos de este proceso de constitucionalidad.

13.- Por escrito aportado a la Sala el 3 de junio de 2020, María del Pilar Garrido Gonzalo, en su condición de Ministra de Planificación Nacional y Política Económica, contesta la audiencia conferida y señala expresamente lo siguiente: “(…) 1.- ASPECTOS DE FORMA: Como aspecto preliminar es menester aclarar que el Ministerio de Planificación Nacional y Política Económica (MIDEPLAN) no participó en el proceso de redacción del Proyecto de Ley. Asimismo, anotar que la materia de pensiones por su naturaleza se encuentra a cargo de otros órganos e instituciones públicas especializadas, en consecuencia, no corresponde per se a las competencias otorgadas a este Ministerio por la Ley de Planificación Nacional, N°5525 de 2 de mayo de 1974, como rector del Sistema Nacional de Planificación ni a las otorgadas al titular de esta cartera por el artículo 46 de la Ley de Salarios de la Administración Pública, N°2166 de 9 de octubre de 1957, reformada y adicionada por el artículo 3 de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 de 3 de diciembre de 2018, como rector de empleo público. En razón de lo anterior, este Despacho Ministerial puede únicamente rendir el Informe solicitado a partir del texto vigente de la Ley citada -la cual entrará en vigencia hasta el próximo 21 de junio de 2020, es decir, aún no ha surtido efectos jurídicos, por lo que a la fecha ninguna de las personas jubiladas del Régimen de Jubilaciones y Pensiones del Poder Judicial, ni de ningún otro de los regímenes de pensiones dentro del ámbito de aplicación de dicha Ley, se han visto afectadas-, así como a partir de la información pública disponible en las distintas instituciones. De igual forma, de la forma más respetuosa, se insta a esta Honorable Sala a integrar como informante al Ministerio de Trabajo y Seguridad Social, rector en materia de pensiones, a fin de que los señores y señoras Magistrados y Magistradas cuenten con mayores insumos para resolver sobre la constitucionalidad de la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, N°9796 de 5 de diciembre de 2019. 2.- SOBRE EL FONDO: Como primer elemento para el análisis de constitucionalidad conviene considerar los fines perseguidos por la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, los cuales según su artículo 3, no solo están dirigidos a contribuir con las finanzas públicas, cuya difícil situación actual es de conocimiento público y con el rediseño y redistribución de la contribución especial solidaria establecida para los regímenes de pensiones especiales contenidos en los artículos 3 de la Ley Marco de Contribución Especial de los Regímenes de Pensiones, Nº9383 de 29 de julio de 2016; 236 bis de la Ley Orgánica del Poder Judicial, Nº 8 de 29 de noviembre de 1937 y en el artículo 71 de la Ley de Pensiones y Jubilaciones del Magisterio Nacional, Nº 2248 de 5 de setiembre de 1958 (reformada integralmente por Ley N°7531 de 10 de julio de 1995), se procura el sostenimiento de los sistemas y de las pensiones, así como aminorar las desigualdades en los beneficios sociales de las pensiones, jubilaciones y en las cargas tributarias. En este sentido, se debe tomar en consideración el criterio emitido por la División de Fiscalización Operativa y Evaluativa del Área de Fiscalización del Sistema de Administración Financiera de la República de la Contraloría General de la República (CGR) en Oficio N°DFOE-SAF-0336 (9232) de 1 de julio de 2019, cuando la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria fue dada a conocer como Proyecto de Ley, en el cual indicó lo siguiente: “La sostenibilidad y el impacto fiscal de los regímenes de pensión y jubilación, ha sido una preocupación constante por muchos años, y se ha comunicado en múltiples documentos de la Contraloría General y de otras fuentes. En particular, regímenes que funcionan con fondos, como el del Poder Judicial y el de Invalidez, Vejez y Muerte, han sido abordados mediante diferentes estudios, con vista a su sostenibilidad de largo plazo, dado que pueden llegar a representar una obligación contingente para el Estado. En el caso de los regímenes financiados con cargo al Presupuesto Nacional, que son cerrados a nuevos ingresantes, estos ya le generan déficit al Gobierno en forma directa. Esta realidad ha originado, como apunta el proyecto de ley, algunas reformas para el establecimiento de medidas que contribuyan a la sostenibilidad, o que reduzcan el efecto de dichos regímenes en las finanzas públicas. También hay iniciativas de ley, en adición a la de este proyecto, con propuestas en esa dirección, que se sugiere consolidar o concordar con las de la presente iniciativa.” Posteriormente, respecto a la contribución solidaria y la búsqueda de promover la uniformidad y reducir las desigualdades entre las personas jubiladas y pensionadas, añadió: “La contribución solidaria por parte de aquellos beneficios más elevados, es una de las medidas que se han puesto en ejecución, y este proyecto de ley busca cierta uniformidad en cuanto a este punto, de tal forma que se avance en la reducción de desigualdades presentes en las contribuciones (…)” Este Despacho Ministerial coincide con el criterio vertido por el Órgano Contralor, y considera que la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria no resulta violatoria de derecho fundamental alguno, pues la variación en el monto de la pensión exenta de la contribución especial solidaria y redistributiva en las jubilaciones y pensiones del Régimen del Poder Judicial, más bien obedece a los principios constitucionales de razonabilidad, proporcionalidad, equidad y equilibrio financiero, en el marco de un Estado Social de Derecho como el nuestro, donde se tiene la tarea de adoptar las medidas necesarias para construir un orden político, económico y social justo, para lo cual al Estado le corresponde garantizar la existencia y sostenibilidad del régimen de seguridad social y a su vez de los regímenes de pensiones y jubilaciones, no sólo del que nos ocupa en este caso, para lo cual es imposible extraer el plano jurídico del fáctico, en el cual han de surtir efectos las medidas, las normas y las resoluciones que adopten. Los recurrentes reseñan a grandes rasgos la evolución del régimen de jubilaciones y pensiones del Poder Judicial, así como externan su preocupación pues estiman que la modificación del monto de la pensión máxima y de la exenta de la contribución especial solidaria afectará la calidad de vida de las personas jubiladas y pensionadas del régimen del Poder Judicial, que se retiran de la vida laboral activa y se sustentan de las rentas vitalicias que reciben por concepto de pensión o jubilación. Ahora bien, y a pesar de que los recurrentes en razón de su cargo deben velar por los intereses de las personas afiliadas a la Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L., no puede perderse de vista que el Estado Costarricense no sólo debe atender las necesidades de las personas jubiladas y pensionadas judiciales, si no que por mandato del artículo 50 de la Constitución Pública2 debe procurar el mayor bienestar de todos los habitantes del país, para lo cual debe además de organizar y estimular la producción, velar por el más adecuado reparto de la riqueza y garantizar, preservar y defender ese derecho y más concretamente, el artículo 73 constitucional3 le asigna la tarea de que el seguro social beneficie a las personas trabajadoras y proteja a las personas con discapacidad o incapacidad permanente y a los adultos mayores. Ahora bien, esto no quiere decir que se deba desatender las necesidades de algunas personas en beneficio de otras, sino que el Estado debe propugnar por la sostenibilidad de todos los regímenes de pensiones, incluso del propio Fondo de Jubilaciones y Pensiones del Poder Judicial (a pesar de la afirmación de los recurrentes de su auto sostenibilidad4 ), así como buscar constantemente disminuir la desigualdad, generar mayor equidad, unificar las reglas y suprimir beneficios desproporcionados que a largo plazo comprometen severamente la disponibilidad de los limitados recursos para atender las jubilaciones y pensiones asignadas así como las futuras. En lo atinente a las vulneraciones a normas y principios constitucionales alegados, conviene señalar lo siguiente: Respecto al artículo 7 constitucional 5 y la preeminencia de los tratados y convenios internacionales frente a la Ley y frente a la propia Constitución Política en materia de Derechos Humanos, y en particular en lo que respecta al derecho a la jubilación, debe aclararse que partir de una premisa errónea conllevará a una conclusión errónea, así pues con la implementación de un monto menor que se encuentre exento del pago de la contribución especial solidaria y redistributiva, se respeta lo estipulado en los Convenios 102 y 118 de la OIT, así como en otros convenios internacionales sobre derechos humanos, respecto a prestaciones sociales y en beneficio de población vulnerable o adulta mayor, ya que se están protegiendo principios como los de justicia social y equidad, toda vez que la finalidad de esta reforma legal es precisamente la búsqueda de un equilibrio entre los ingresos que se reciben por concepto de cotizaciones y los egresos que implican el pago de los beneficios jubilatorios, así como la disminución de las desigualdades y la creación de equidad. De igual forma, si bien es cierto que existe un derecho fundamental a la jubilación o pensión ampliamente consolidado en la jurisprudencia de esta Honorable Sala, también se ha precisado que no existe un derecho a que la prestación derivada de ese derecho lo sea por un monto específico, pues: “(…) la pensión o jubilación puede variarse según las circunstancias, ya sea para recalificar el beneficio aumentándolo o disminuyéndolo, cuando el aporte de los beneficios no sea suficiente para cubrir su cuota en el costo del régimen (...)" (Votos N°1925-91 de las 12:00 horas del 27 de setiembre de 1991, 2379-96 de las 11:06 horas del 17 de mayo de 1996 y 3250-96 de las 15:27 horas del 2 de julio de 1996, 1625-2010 de las 09:30 del 27 de enero de 2010, 19485-2018 del 21 de noviembre del 2018 y 236-2019 de las 12:02 del 9 de enero de 2019). Particularmente en lo que se refiere a la invocada infracción del Convenio 102 de la OIT, debe rechazarse enfáticamente, toda vez que sus artículos 65 numeral 3 y 67 inciso a) establecen expresamente que podrá prescribirse, es decir, determinarse por la legislación nacional o en virtud de la misma, de conformidad con el artículo 1.1., un monto máximo, siempre que ese máximo respete el mínimo establecido por el propio Convenio, que en el caso de prestaciones por vejez es de un 40% del total del salario del trabajador ordinario no calificado (al tenor de los artículos 65, 66, 67), lo cual, se constituye como parámetro de constitucionalidad de la cuantía de la jubilación o pensión. De igual forma, respecto a la alegada falta de fundamentación técnica actuarial de la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, o al menos de una mala interpretación por parte de los y las señoras diputadas, es menester indicar que conformidad con lo que establece el Convenio 102 de la OIT, dentro de los límites a la potestad legislativa para la configuración de los distintos regímenes especiales sustitutivos de jubilaciones y pensiones, se encuentra el respeto por los principios constitucionales de razonabilidad y proporcionalidad, así como la necesaria adecuación al principio de no confiscatoriedad, siendo que la mejor forma de evitar infracciones a esos principios constitucionales es fundamentando la reforma que se pretende realizar en estudios técnico-actuariales que evidencien la necesidad, la razonabilidad y la proporcionalidad de la iniciativa. En este caso, los estudios requeridos fueron solicitados con vista a la sostenibilidad de largo plazo, y al contarse con ellos, no cabe una inconstitucionalidad por tal motivo. Incluso, sobre este punto, la CGR señaló en informe rendido al respecto, que debe privar la equidad, la búsqueda de la reducción de las desigualdades en las condiciones de los distintos regímenes, además del establecimiento de medidas que contribuyan a su sostenibilidad o que reduzcan el efecto de dichos regímenes en las finanzas públicas. En este sentido, la Sala Constitucional en Voto N°2379-96 de las 11:06 horas del 17 de mayo de 1996, sostuvo que: “(…) el hecho de que al accionante se le reconozca como derecho adquirido desde su ingreso al régimen el derecho a la jubilación, no puede implicar una desaparición de los atributos y condicionamientos que forman parte intrínseca de él -incluyendo por supuesto las que puedan resultar restrictivas para el beneficiario- de modo que todas esas características perviven como un conjunto indeterminado de cláusulas presuntas o implícitas, que están insertas dentro de cualquier régimen o sistema de concreción del derecho a la jubilación y que, por ello mismo, son potencialmente aplicables al accionante en cualquier momento y mientras pertenezca al régimen. Y no podría ampararse en el artículo 34 de la Constitución Política para oponerse a su aplicación, dado que no se trata de una nueva normativa sino del ejercicio efectivo de una implícita facultad de variación existente desde el momento de ingreso al régimen. Desde luego que esa posibilidad de modificación que tiene acordada a su favor el Estado, encuentra límites no sólo provenientes de la Constitución Política, sino del Derecho Internacional, entre los que se destacan los fijados en el Convenio número 102 de la Organización Internacional del Trabajo relativo a la norma mínima de seguridad social, que señala, en lo que aquí interesa, que las prestaciones concedidas en aplicación del citado Convenio y los gastos de administración se encuentren respaldados en estudios técnicos y no que sean implantados o modificados por una decisión política, arbitraria o antojadiza de la Administración, prestaciones entre las cuales se encuentra el monto de cotización para el régimen de pensiones por parte del empleado y el Estado como tal y como patrono y que obliga a fundamentar esas variaciones en estudios actuariales relacionados con la solvencia del régimen por afectar.” (El destacado es suplido) De lo anterior se colige, que el legislador ordinario puede válidamente regular las condiciones bajo las cuales deben operar los regímenes especiales de jubilaciones y pensiones, cumpliendo con las condiciones mínimas que establecen tanto la normativa supranacional como la nacional, en este caso, la que mana de la OIT y los límites constitucionales que la sujetan a la existencia de respaldo en datos objetivos emanados de estudios técnicos. En lo referente a la alegada violación al principio de igualdad, contenido en el artículo 33 de nuestra Constitución Política 7 y retomando lo señalado por el tratadista costarricense Rubén Hernández Valle, que lo cataloga como: “Derivado directamente de los principios de la Revolución Francesa, el de igualdad ante la ley establece la prohibición de que, dentro del ordenamiento jurídico, se establezcan discriminaciones por razones de sexo, raza religión y cualesquiera otras fundadas en motivos no razonables. Su sustrato ideológico es la dignidad humana y el principio cristiano de la igualdad de todos los hombres”. Y al cual, más adelante en su obra “El Derecho de la Constitución” encuadra dentro del Estado Social de Derecho, al sostener: “El Estado Social de Derecho significa, un aumento del poder en beneficio de la igualdad, más que de la propiedad y de la libertad, su finalidad es repartir y utilizar al máximo los recursos de la comunidad en provecho de los más necesitados. Por ello, se trata de una intervención en la vida económica para favorecer a determinadas personas, clases o grupos con el fin de elevar el nivel de vida de los más necesitados en el goce la propiedad, es decir, de lograr una igualdad real de todos los ciudadanos.”9 Es así que y reiterando lo señalado líneas atrás respecto a las tareas del Estado Costarricense como un Estado Social de Derecho, que como una manifestación del principio de igualdad, los regímenes de jubilaciones y pensiones están creados dentro de un marco que debe propugnar por su sostenibilidad en el tiempo y que debe observar los principios de solidaridad y suficiencia establecidos en la doctrina de la seguridad social. De igual manera, dicha sostenibilidad está aparejada con el equilibrio económico y financiero en resguardo de las finanzas públicas, siendo que éstas deben de mantener un equilibrio procurando la satisfacción y la remuneración efectiva a las personas jubiladas y pensionadas. Por tal motivo, se considera oportuno retomar la necesaria ponderación entre el principio de equilibrio presupuestario y las prestaciones a cargo de un Estado Social de Derecho, a la que se refirió la Sala Constitucional en el considerando IV del Voto N°19511-2018 de las 21:45 horas de 23 de noviembre de 2018 y con que se resolvieron las consultas facultativas de constitucionalidad del proyecto de ley N.° 20.580 (hoy Ley de Fortalecimiento de las Finanzas Públicas, Ley N.° 9635 de 3 de diciembre de 2018), que por su relevancia de seguido se transcriben: “…Sobre el particular, frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable. (…) En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otro (sic) forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serie riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. (…) Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho (…)” No cabe duda que el endeble estado de las finanzas públicas ha obligado a que en el país se hayan tenido que tomar y aplicar medidas insoslayables, que contribuyan a lograr el balance al que se refiere la Sala Constitucional, en aras de que exista solvencia económica para poder atender las prestaciones a cargo del Estado y a dar sostenibilidad a los regímenes de jubilaciones y pensiones. Los preceptos constitucionales que sustentan esas finanzas saludables compelen a que el Estado tenga siempre como propósito satisfacer las necesidades de los habitantes del país, sin conllevar un aumento irresponsable en el gasto, ni desatender unas en beneficio de otras. Por lo tanto, de la aplicación conjunta y coordinada de los artículos 33 y 50 de la Constitución Política puede concluirse que el principio de igualdad no pretende ser de carácter absoluto, pues no concede propiamente un derecho a ser equiparado a cualquier persona sin distinción de sus circunstancias o condiciones particulares, si no que por el contrario, implica que no se hagan diferencias entre dos o más personas o grupos de ellas, que estén en condiciones ya sea idénticas o en una misma situación jurídica, por lo que no puede pretenderse un trato igual, cuando las condiciones o circunstancias son desiguales. Sobre este tema, en resolución número 1372-1992 de fecha 26 de mayo de 1992, la Sala Constitucional, sustentó lo siguiente: “III.- La jurisprudencia constitucional a través de varios pronunciamientos ha logrado decantar el contenido del principio de igualdad establecido en el artículo 33 de la Constitución, señalando que por medio de él, se prohíbe hacer diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, sin que pueda pretenderse un trato igual cuando las condiciones o circunstancias son desiguales, se acuerda, en principio, un trato igual a situaciones iguales y se posibilita un trato diferente a situaciones y categorías personales diferentes. Esa fórmula tan sencilla fue reconocida desde hace muchos años por la Corte Constitucional, a la fecha la Corte Suprema de Justicia, que tenía a su cargo el conocimiento de los recursos de inconstitucionalidad antes de la creación de esta Sala especializada. Pero la exigencia de igualdad no legitima cualquier desigualdad para autorizar un trato diferenciado, para determinar si realmente se justifica una discriminación, hay que analizar si el motivo que la produce es razonable, es decir, si atendiendo a las circunstancias particulares del caso se justifica un tratamiento diverso”. (En sentido análogo, véanse Votos N°580-1995, 633-1994, 5749-1993 y 2197-1992) Y más recientemente, en Voto N°236-2019 de las 12:02 del 9 de enero de 2019, el cual a su vez cita los Votos N°2018-19030 y 2018-19485 que comparten las consideraciones, la parte dispositiva y en lo aplicable, los votos salvados, indicó: “IV. El derecho a la jubilación y el Estado Social de Derecho. Los artículos 50, 56 y 74 de la Constitución Política configuran “el modelo de Estado social y democrático de Derecho” (Res. 9255 de las 16:03 horas del 25 de agosto del 2004). Como parte de este mismo modelo el principio de solidaridad social actúa como un eje orientador de política interna del Estado, porque el Estado Social de Derecho “entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables” (Res. 13205 de las 15:13 horas del 27 de septiembre del 2005). En forma consecuente y con sustento en el Estado Social de Derecho, “nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de… los trabajadores” (ibid), como es el caso del derecho de jubilación. (…)”. VII.- El derecho a la jubilación no es un derecho absoluto. Al igual que cualquier otro derecho fundamental, el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no impidan su ejercicio –no se afecte el contenido esencial-. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación, cuando se logre comprobar que existen ciertas situaciones, como desigualdades o privilegios, que ponen en riesgo la sostenibilidad de un régimen, y, por ende, atenten contra la naturaleza del sistema como tal. Sobre el particular, en el voto número 2379-96 de las 11:06 del 17 de mayo de 1996, se estableció lo siguiente: II.- SOBRE EL DERECHO A LA JUBILACIÓN.- En reiterados fallos se ha reconocido en la pensión o jubilación un derecho fundamental a favor del trabajador. Véase por todas el pronunciamiento de esta Sala número 1147-90 de las dieciséis horas del veintiuno de setiembre de mil novecientos noventa, en el que se estableció: "En primer lugar, esta Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano en condiciones de igualdad y sin discriminación alguna de conformidad con los artículos 33 y 73 de la Constitución Política..." Sin embargo, en el mismo pronunciamiento citado quedó establecido que dicho derecho no es absoluto y puede ser objeto de condiciones y limitaciones: "En realidad no se ignora que el de jubilación, como cualquier otro derecho está sujeto a condiciones y limitaciones pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten además razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin. Esto no es otra cosa que expresión de un conocido principio del Derecho de los Derechos Humanos, que puede denominarse de proporcionalidad y que se recoge en general como condición sine qua non de las limitaciones y restricciones a tales derechos autorizados excepcionalmente por los propios textos que los consagran.". De lo transcrito queda claro que dentro de todo el universo de limitaciones, condicionamientos y restricciones que puede sufrir el derecho fundamental a la jubilación, habrá un grupo de ellas de las que podrá predicarse que son constitucionalmente válidas siempre que cumplan con dos condiciones, a saber: a) que provengan de los textos que reconocen dichos derechos y garantías, y b) que sean necesarias para el ejercicio mismo del derecho de acuerdo con su naturaleza y fin. Es correcto concluir además que -por imperativo de la lógica estructural de nuestro ordenamiento jurídico- la primera de las condiciones recién señaladas puede ampliarse para incluir limitaciones y condicionamientos que provengan de textos de superior jerarquía o bien del mismo rango, tal y como sucede en este caso con las limitaciones que puedan surgir de la propia Constitución Política, entendida ésta no sólo como una agrupación de normas, sino como un conjunto de regulaciones y principios integrados con aspiración de armonía (…)”. (El destacado es suplido) Dicho principio, será violentado cuando la desigualdad esté privada de una justificación objetiva y razonable; por lo cual, necesariamente debe existir una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. El principio de igualdad, en conjunto con el derecho a la seguridad social y demás derechos fundamentales, pretende satisfacerse únicamente con la participación de todos, para así satisfacer el bien jurídico tutelado mediante una responsabilidad compartida entre el individuo y la sociedad, que es exactamente el cuadro fáctico de la Ley para Rediseñar y Redistribuir los Recursos de la Contribución Especial Solidaria. En este caso, la Ley para Rediseñar y Redistribuir los Recursos de la Contribución Especial Solidaria, pretende a través de su artículo 4, bajar la base exenta de pago para que a partir de éste, se proceda al cobro de la contribución solidaria de conformidad con el régimen salarial al que pertenezca la persona jubilada o pensionada, en el caso del Régimen de Jubilaciones y Pensiones del Poder Judicial, pasando a 6 salarios base del puesto más bajo. De esta forma, se está intentando el equilibrio económico y la sostenibilidad de los regímenes de pensiones, a fin de mantener los mismos beneficios actuales y a futuro para todas las personas que opten por la jubilación. Con la contribución especial solidaria, obligatoria y escalonada que contempla la Ley impugnada, la pensión exenta de la contribución especial solidaria rondaría el monto aproximado de los ¢2.550.000 colones para el Régimen de Jubilaciones y Pensiones del Poder Judicial, monto que permite un nivel de vida adecuado y que a su vez es muy superior a las pensiones actuales del Régimen de Invalidez, Vejez y Muerte que administra la CCSS y que es el más grande del país. Unido a lo anterior, en lo tocante al artículo 34 de la Constitución Política10 , debe señalarse que es improcedente basarse en el principio de irretroactividad para sostener la existencia de un derecho adquirido o de una situación jurídica consolidada a favor de una persona (o grupo de ellas) a disfrutar indefinidamente de un sistema determinado, pues ello equivaldría a admitir la inmutabilidad del ordenamiento jurídico, o lo que es lo mismo, a congelar las normas que se emitieron en un momento histórico y en ciertas condiciones demográficas, sociales y económicas, entre otras, que inevitablemente van cambiando con el paso del tiempo y a las que el Estado y el ordenamiento jurídico deben adaptarse y regular. En este sentido, respecto al principio de irretroactividad, los derechos adquiridos y las situaciones jurídicas consolidadas, esta Honorable Sala, en Voto N°2765-97 de las 15:03 horas de 20 de mayo de 1997, señaló: "Los conceptos de "derecho adquirido" y "situación jurídica consolidada" aparecen estrechamente relacionados en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en la que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente– ha ingresado en (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la "situación jurídica consolidada" representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante en cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o de una sentencia que así lo haya declarado– haya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo «si..., entonces...»; vale decir: si se ha dado el hecho condicionante, entonces la "situación jurídica consolidada" implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derecho adquirido o situación jurídica consolidada), el ordenamiento protege –tornándola intangible– la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y de certeza jurídica. En este caso, la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona, o de provocar que si se había dado el presupuesto fáctico con anterioridad a la reforma legal, ya no surja la consecuencia (provechosa, se entiende) que el interesado esperaba de la situación jurídica consolidada. Ahora bien, específicamente en punto a ésta última, se ha entendido también que nadie tiene un "derecho a la inmutabilidad del ordenamiento", es decir, a que las reglas nunca cambien. Por eso, el precepto constitucional no consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior; lo que significa es que –como se explicó– si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. Esto es así porque, se dijo, lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla.” (El destacado es suplido) De tal manera, la retroactividad se manifiesta cuando una norma jurídica invade el dominio de aplicación de la anterior, aplicándose a hechos que se han producido antes de su entrada en vigor. Por tanto, para establecer la retroactividad de una norma, debe definirse si su aplicación es a futuro, o si por el contrario, intenta regular hechos o situaciones ya acontecidos o en curso de ejecución. Así a la luz del artículo 34 citado así como a la jurisprudencia constitucional, es incontrovertible el derecho a la jubilación o pensión de quienes ya se han cumplido con la edad, los aportes y los años de servicio exigidos por la ley, sin embargo, esta condición les da derecho a la consecuencia, es decir, a recibir de forma vitalicia una prestación económica, pero no a la regla y menos aún a aquellas que establecían un monto específico o que dejaban indefinido el tope máximo de la remuneración. De igual forma, si los efectos ya se realizaron, la nueva norma no puede incidir sobre ellos, pero sí puede incidir sobre efectos futuros. En este caso, la reforma en ningún momento, determina la devolución de los montos de jubilación o pensión que se hubiesen pagado, sino que sus efectos se producirán a futuro y en cuanto a modificar los montos exentos de la contribución especial solidaria y a definir un tope razonable a los montos futuros que se girarán por concepto de pensión. Lo anterior, siempre y cuando se cumpla el presupuesto que establece la norma cuestionada, es decir, que el monto que se recibe por concepto de jubilación o pensión exceda más de seis veces salarios base del puesto más bajo pagado en el Poder Judicial. Tampoco puede perderse de vista que de mantener en el tiempo el estado de cosas pretendido por los recurrentes, se pondría en severo riesgo la continuidad de los regímenes de seguridad social y no solo los de jubilaciones y pensiones, con el consecuente perjuicio para las personas que ya han alcanzado la condición de jubilados o pensionados, y para quienes tienen la expectativa justificada en sus aportes, de obtener en el futuro el derecho a la jubilación o pensión. Íntimamente relacionado con el caso que nos ocupa, en Voto N°3250-96 de las 15:27 horas de 2 de julio de 1996, la Sala Constitucional indicó que las contribuciones especiales no son inconstitucionales por encontrar fundamento en la naturaleza social del derecho a la jubilación, naturaleza que se inscribe dentro de los principios que conforman el Estado Social de Derecho, recogidos por el artículo 50 de la Constitución Política; así como ratificó la validez de una contribución muy similar a la que se cuestiona en esta acción. En esa oportunidad indicó lo siguiente: “(…) la contribución que se fija a cargo de los pensionados del Régimen de Pensiones del Magisterio Nacional en el artículo 12, y la exclusión que de dicha contribución se hace como derecho adquirido en el transitorio I ambos de la Ley número 7268, no lesionan el artículo 34 de la Constitución Política, por formar parte del elenco de limitaciones que válidamente han formado parte el derecho fundamental a la jubilación que ostenta el accionante desde su ingreso y de las cuales no puede sustraerse porque las adquirió junto con él. (…)” Añadiendo más adelante: “La forma en que el artículo 12 de la Ley 7268 regula la contribución a cargo de los pensionados del Régimen del Magisterio Nacional, no contraviene el artículo 45 de la Constitución Política, primero, porque respeta el principio de progresividad (única falta que se hizo notar al evacuar en su oportunidad la Consulta Legislativa y que el Parlamento se encargó de enmendar) con lo que deja prácticamente intacto un monto suficiente a juicio de la Sala para garantizar el efectivo disfrute del derecho a la jubilación, y segundo, porque los montos que se cobran por los distintos excesos que ocurran en casos concretos tienen un claro fin protectivo y uniformador en beneficio del grupo de personas para quienes fue establecido el régimen; es decir, están dirigidas al bienestar social de todos o bien de la gran mayoría de los miembros para los cuales se concibió el régimen. Ello puede conllevar que en algunos sistemas jubilatorios existan normas redistributivas para aquellos casos que pueden llamarse si se quiere, extraños a la razón de ser del régimen y que deben por lo tanto, sufrir un proceso de uniformación para asimilar los beneficios percibidos (en la medida de lo necesario y posible) a los que reciben la mayoría de los beneficiados del régimen, teniendo que hacer, en consecuencia, -si es su deseo seguir disfrutando de los beneficios del sistema- un mayor aporte por recibir una mayor contraprestación en relación con las personas que fueron tomadas en consideración al diseñarse el sistema -en este caso, los maestros-, quienes perciben un salario sustancialmente menor y ,en consecuencia, lo es también su jubilación o pensión. Justo es pues -por el carácter solidario del régimen- fijar un monto máximo suficientemente alto que permita incluir los salarios superiores de los beneficiarios propios del fondo y someter a mayor exigencia participativa a los que estén por encima de él, por provenir siempre de obligaciones no contempladas dentro de las tomadas en consideración al fijar las bases del sistema.” (El destacado es suplido) En razón de lo anterior, este Despacho Ministerial estima que las normas cuestionadas no infringen derechos adquiridos, situaciones jurídicas consolidadas, la prohibición de retroactividad, ni jurisprudencia constitucional. Con respecto al tema de la seguridad jurídica, debe considerarse que el Estado debe proveer un marco normativo que defina con certeza lo prohibido, lo mandado y lo permitido así como las consecuencias jurídicas frente a ciertos hechos o actos, para que tanto las instituciones como los administrados, sepan a qué atenerse. Esto supone, por un lado, un conocimiento cierto de las normas válidas, eficaces y vigentes y, por otro, una cierta estabilidad de las normas y de las situaciones que en ella se definen. Al respecto, la Procuraduría General de la República, en Dictamen N°C-058-2004 de 18 de febrero de 2004, señaló: “Del principio de seguridad se derivan distintos corolarios. Entre ellos, la claridad y no confusión normativa, la publicidad de las normas y sobre todo la irretroactividad de estas. El Derecho debe promover la certeza y ésta se afecta cuando la norma es confusa, impide al administrado conocer a qué debe atenerse o bien, si se le aplica retroactivamente incidiendo sobre situaciones consolidadas. La Sala Constitucional ha indicado al respecto: “La seguridad jurídica...es la situación del sujeto del individuo como sujeto activo y pasivo de relaciones sociales, que sabiendo o pudiendo saber cuáles son las normas jurídicas vigentes, tiene fundamentales expectativas de que ellas se cumplan. Ese valor jurídico pretende dar certeza contra las modificaciones del Derecho, procura evitar la incertidumbre del Derecho vigente, es decir, las modificaciones jurídicas arbitrarias, realizadas sin previo estudio y consulta...” (Sala Constitucional, resolución N° 8390-97 de 16:21 hrs. del 9 de diciembre de 1997). Ahora bien, según se ha sostenido anteriormente, en el caso que nos ocupa, se ha respetado el principio de irretroactividad de las normas, garantizado constitucionalmente (artículo 34), así como el cumplimiento de la regla general, las normas de la Ley impugnada surten efectos a futuro, seis meses después de su publicación, sea el 21 de junio de 2020, para aplicarse a las rentas por concepto de jubilación o pensión futuras y que superen el monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial. Por tal motivo, la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria refleja el respeto al principio de seguridad jurídica por parte del legislador, al establecer criterios objetivos y reglas claras para el rediseño y redistribución de los recursos de la contribución especial solidaria de una forma más equitativa. En lo tocante a los principios de razonabilidad, proporcionalidad y no confiscatoriedad, en primer término debe señalarse que los accionantes no aportan prueba o, al menos, elementos de juicio suficientes en los que sustenten su dicho, siendo que el incumplimiento de esos requisitos, hace inaceptables los alegatos de inconstitucionalidad. Lo anterior, debido a que no es posible hacer el análisis correspondiente, sin la existencia de una línea argumentativa coherente, que se separe de la exposición de conceptos subjetivos y sumamente abstractos. Y que en tratándose del análisis de razonabilidad, esta Honorable Sala Constitucional, en Voto N°5236-99 de las 14:00 horas de 7 de julio de 1999, indicó: “Para emprender un examen de razonabilidad de una norma, el Tribunal Constitucional requiere que la parte aporte prueba o al menos elementos de juicio en los que sustente su argumentación e igual carga procesal le corresponde a quien rebata los argumentos de la acción y la falta en el cumplimiento de estos requisitos, hace inaceptables los alegatos de inconstitucionalidad. Lo anterior, debido a que no es posible hacer un análisis de razonabilidad sin la existencia de una línea argumentativa coherente que se encuentre probatoriamente respaldada." (Reiterado en Votos N°10153-2001 de las 14:44 horas de 10 de octubre de 2001 y N°14392-2016 de las 9:05 horas del 5 de octubre de 2016). No obstante, la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria no puede ser encuadrada como irracional, desproporcional o confiscatoria, pues a partir de las razones que se han esgrimido a lo largo de este Informe, se colige que la norma fue emitida por la autoridad competente, cumpliendo todos los trámites sustantivos y requisitos indispensables, además de que tanto el fin, el contenido como el motivo son lícitos, posibles, claros y precisos y se ajustan a la visión de un Estado Social de Derecho, que procura corregir las distorsiones económicas de los Regímenes de Jubilaciones y Pensiones, con el objeto de asegurar contar con recursos suficientes para cubrir las remuneraciones por concepto de jubilaciones y de pensiones y garantizar su estabilidad financiera y sostenibilidad. Además, debe indicarse que la contribución que fija la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, no es desproporcionada ni irrazonable, tampoco abusiva ni arbitraria ni puede considerarse que agrave las condiciones socioeconómicas de los jubilados y pensionados judiciales, sobre todo si se toma en cuenta que el artículo 712 define que en el caso de los jubilados y pensionados del Poder Judicial, la contribución especial aplica solo después de que se exceda el monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial, que según se indicó anteriormente a la fecha se trataría de remuneraciones superiores a los ¢2.550.000 colones aproximadamente, que superan no sólo el ingreso de muchas personas jubiladas y pensionadas de otros regímenes de jubilaciones y pensiones (y por mucho al de la CCSS) sino también el de muchas personas asalariadas o trabajadores independientes, que a la fecha forman parte de población económicamente activa. Además debe considerarse, que la contribución es gradual y progresiva. De la misma forma, se rechaza que la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, sea confiscatoria y en consecuencia inconstitucional, toda vez que de conformidad con su artículo 513, la suma de la contribución solidaria más la totalidad de las deducciones, no puede superar el tope de un 55% del monto bruto de la pensión. En este sentido, conviene subrayar, según se indicó líneas atrás, que este tope incluso es superior al mínimo que establece el Convenio102 de la OIT. IV.- PETITORIA 1.- Se rechace la acción de inconstitucionalidad interpuesta en contra de la Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria, N°9796 de 5 de diciembre de 2019. 2.- Se condene a los recurrentes al pago de costas (…)”.

14.- Mediante memorial aportado a la Sala el 3 de junio de 2020, Alejandra Hernández Sánchez, en su condición de Viceministra de Egresos del Ministerio de Hacienda, contesta la audiencia conferida y señala expresamente lo siguiente: “(…) Sobre el fondo i. Sobre la Ley Número 9796 “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria” El objeto de esta ley es contribuir con las finanzas públicas del país aplicando un rediseño de los topes de pensión máxima y de la pensión exenta de la contribución especial solidaria establecida sobre los regímenes de pensiones especiales. Asimismo, la ley busca otorgarle continuidad y aplicabilidad a la contribución solidaria como un aporte para lograr el sostenimiento de las pensiones, contribuir con la eliminación de las desigualdades en los beneficios sociales de las pensiones y jubilaciones, así como en las cargas tributarias y dar sostenibilidad a los sistemas de pensiones mediante las nuevas aportaciones. Respecto a la ley de cita, cuando fue conocida como Proyecto de Ley, por la Contraloría General de la República, ésta indicó lo siguiente: “La sostenibilidad y el impacto fiscal de los regímenes de pensión y jubilación, ha sido una preocupación constante por muchos años, y se ha comunicado en múltiples documentos de la Contraloría General y de otras fuentes. En particular, regímenes que funcionan con fondos, como el del Poder Judicial y el de Invalidez, Vejez y Muerte, han sido abordados mediante diferentes estudios, con vista a su sostenibilidad de largo plazo, dado que pueden llegar a representar una obligación contingente para el Estado. En el caso de los regímenes financiados con cargo al Presupuesto Nacional, que son cerrados a nuevos ingresantes, estos ya le generan déficit al Gobierno en forma directa. Esta realidad ha originado, como apunta el proyecto de ley, algunas reformas para el establecimiento de medidas que contribuyan a la sostenibilidad, o que reduzcan el efecto de dichos regímenes en las finanzas públicas”. En consonancia con lo apuntado, estima este Despacho que la variación en el monto de la pensión exenta de la Contribución especial solidaria y redistributiva en las pensiones del Régimen de Pensiones señalados en su numeral 2, entre éstos el establecido en la Ley N° 8 denominada “Ley Orgánica del Poder Judicial”, concretamente, la reforma del inciso a) del artículo 236 bis de dicho cuerpo normativo, no es violatorio de derecho fundamental alguno, siendo más bien que obedece a los principios constitucionales de razonabilidad, proporcionalidad, equidad y equilibrio financiero. Los accionantes alegan que la Ley número 9796 citada, violenta los principios constitucionales, de igualdad, razonabilidad jurídica, irretroactividad de la ley, situaciones jurídicas consolidadas, seguridad jurídica e intangibilidad de los actos propios y no confiscatoriedad, los cuales se analizarán por separado. ii. Sobre la violación al principio de igualdad y supuesta categorización discriminatoria de pensiones: Indica el accionante que el personal del Poder Judicial cotiza un 13,5% de su salario para su pensión, mientras que el resto de la población cotiza con un 3,8%. Además, las personas jubiladas judiciales continúan con una contribución similar e igual de dispar con relación al resto de los regímenes de pensiones. Afirma que el régimen de pensiones del Poder Judicial es autosuficiente y no necesita de ayuda para su sostenibilidad. Acusa que la reforma afecta en forma específica a un grupo sobre cualquier otro régimen de pensiones, sea a las personas jubiladas judiciales, a quienes, por el monto de los rebajos, contribuciones especiales, CCSS e impuestos; hace que su patrimonio tienda ineludiblemente a disminuir de forma progresiva y acelerada. Asimismo, alega que esta contribución no es racional y crea desigualdades a quienes se pensionan, generando deterioro en su condición económica, al fijarse niveles de deducción confiscatorios, los cuales no están sustentados en estudios técnicos y/o especializados que involucren todos los factores socioeconómicos, actuariales y de calidad de vida de quienes cotizan al régimen, generando un deterioro económico de grandes proporciones. Agrega que la Ley N° 9796 lesiona el principio de razonabilidad, plantea como problema esencial el discernimiento de una decisión normativa y como ésta permitiría que un tratamiento desigual sea razonable. Indica que esa es la interrogante irresuelta por la ley que cuestiona, en virtud de que su fundamento es inconsistente o, incluso, gravoso en forma desproporcionada para el sector de personas jubiladas judiciales, sin que exista gradualidad alguna que permita aplicar la normativa de manera respetuosa a los estadios de permanencia al régimen. Derechos éstos que deben y tienen que estar por encima del principio “pro régimen” del que tanto se habla en estos días y que deshumaniza la realidad y finalidad propia de la pensión. Sobre el particular es de importancia indicar, que los regímenes de pensiones están creados dentro de un marco de sostenibilidad en el trascurso del tiempo, en observancia de los principios de solidaridad y suficiencia establecidos en la doctrina de la seguridad social. De igual manera, dicha sostenibilidad está aparejada con el equilibrio económico y financiero en resguardo de las finanzas públicas, siendo que éstas deben de mantener un equilibrio procurando la satisfacción y el pago de los respectivos montos a las personas pensionadas. Por tal motivo, se considera oportuno reiterar la necesaria ponderación entre el principio de equilibrio presupuestario y las prestaciones a cargo de un Estado Social de Derecho, a la que se refirió la Sala Constitucional en el considerando IV de la resolución N°19511-2018 de las 21:45 horas del 23 de noviembre del 2018, con que se resolvieron las consultas facultativas de constitucionalidad del proyecto de ley N.° 20.580 (hoy Ley de Fortalecimiento de las Finanzas Públicas, Ley N.° 9635 de 3 de diciembre de 2018), que por su relevancia de seguido se transcriben: “…Sobre el particular, frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable. (…) En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otro (sic) forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serie riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. (…) Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho. (…)” No cabe duda que el endeble estado de las finanzas públicas ha obligado a que en el país se hayan tenido que tomar y aplicar medidas insoslayables, que contribuyan a lograr el balance al que se refiere la Sala Constitucional, en aras de que exista solvencia económica para poder atender las prestaciones a cargo del Estado y dar sostenibilidad a los regímenes de pensiones. Los preceptos constitucionales que sustentan esas finanzas saludables compelen a que el Estado tenga siempre como propósito satisfacer las necesidades de los habitantes del país, sin conllevar un aumento irresponsable en el gasto, ni desatender unas en beneficio de otras. Al respecto, el artículo 33 constitucional desarrolla el tema de la igualdad ante la ley de la siguiente manera: “Artículo 33.- Toda persona es igual ante la ley y no podrá practicarse discriminación alguna contraria a la dignidad humana”. Por otro lado, tenemos que el artículo 50 Constitucional, desarrolla el tema de que el Estado debe velar porque exista una adecuada distribución y manejo de los recursos públicos, de la siguiente manera: “El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza...”. El principio de igualdad no pretende ser de carácter absoluto, pues no concede propiamente un derecho a ser equiparado a cualquier individuo sin distinción de circunstancias o condiciones, por el contrario, éste exige que no se hagan diferencias entre dos o más individuos o grupos de éstos, que estén en condiciones ya sea idénticas o en una misma situación jurídica, por lo que no puede pretenderse un trato igual, cuando las condiciones o circunstancias son desiguales. Sobre este tema, en resolución número 1372-1992 de fecha 26 de mayo de 1992, la Sala Constitucional sostuvo lo siguiente: “El principio de igualdad constitucional genera el principio administrativo de igualdad ante las cargas públicas, sea dar el mismo tratamiento a quienes se encuentran en situaciones análogas, excluyendo todo distingo arbitrario o injusto contra determinadas personas o categorías de personas, en consecuencia, no deben resultar afectadas personas o bienes que fueren determinados singularmente, pues si eso fuera posible, los tributos tendrían carácter persecutorio o discriminatorio. La generalidad es una condición esencial del tributo; no es admisible que se grave a una parte de los sujetos y se exima a otra."(Resolución N° 4829-1998 y en similar sentido, 580-1995, 633-1994, 5749- 1993 y 2197-1992) “III.- La jurisprudencia constitucional a través de varios pronunciamientos ha logrado decantar el contenido del principio de igualdad establecido en el artículo 33 de la Constitución, señalando que por medio de él, se prohíbe hacer diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, sin que pueda pretenderse un trato igual cuando las condiciones o circunstancias son desiguales, se acuerda, en principio, un trato igual a situaciones iguales y se posibilita un trato diferente a situaciones y categorías personales diferentes. Esa fórmula tan sencilla fue reconocida desde hace muchos años por la Corte Constitucional, a la fecha la Corte Suprema de Justicia, que tenía a su cargo el conocimiento de los recursos de inconstitucionalidad antes de la creación de esta Sala especializada. Pero la exigencia de igualdad no legitima cualquier desigualdad para autorizar un trato diferenciado, para determinar si realmente se justifica una discriminación, hay que analizar si el motivo que la produce es razonable, es decir, si atendiendo a las circunstancias particulares del caso se justifica un tratamiento diverso”. Dicha igualdad, será violada cuando la desigualdad esté privada de una justificación objetiva y razonable; por lo cual, necesariamente debe existir una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. El principio de igualdad, en conjunto con el derecho a la seguridad social y demás derechos fundamentales, pretende satisfacerse únicamente con la participación de todos. Lo que se trata es que el bien jurídico tutelado se satisfaga mediante una responsabilidad compartida entre el individuo y la sociedad. Con lo cual, la Ley para Rediseñar y Redistribuir los Recursos de la Contribución Especial Solidaria, busca el resguardo de ello. En el presente caso, la Ley N° 9796 citada, pretende a través de su artículo 4, bajar la base exenta de pago para que a partir de ésta, se proceda al cobro de la contribución solidaria de conformidad con el régimen salarial al que pertenezca el funcionario, entre ellos el Régimen de Pensiones establecido en la Ley Orgánica del Poder Judicial disponiendo lo siguiente b) Hasta los seis (6) salarios base del puesto más bajo pagado en el Poder Judicial para el caso de las pensiones y jubilaciones contempladas en la Ley N. º 8, Ley Orgánica del Poder Judicial, de 29 de noviembre de 1937. De esta forma se está intentando el equilibrio económico y la sostenibilidad de los regímenes de pensiones, a fin de mantener los mismos beneficios actuales y a futuro para todas las personas que opten por la jubilación. Debemos recordar, que precisamente conforme al principio de igualdad, se deben establecer diferenciaciones para circunstancias desiguales, cumpliendo de esta forma con el principio de igualdad, de manera que se trate en forma desigual a los desiguales. Bajo estas premisas sería inconstitucional que las pensiones a cargo del Presupuesto Nacional, no estén reguladas de manera gradual de conformidad con el monto a recibir, según las cotizaciones realizadas y el tiempo laborado y estableciendo un tope máximo y justo según esas circunstancias. Actualmente, de los ingresos del Estado, un porcentaje es destinado al pago de este rubro, mientras que el porcentaje restante, sale de los impuestos pagados por todas las personas costarricenses, situación que atenta contra la justa distribución como bien jurídico constitucional y premia a algunos jubilados con un nivel de vida muy alto para su vida como pensionado, tal y como si estuviera todavía, en su vida productiva. Con la contribución especial solidaria, obligatoria y escalonada que contempla la Ley 9796 en cuestión, la base mínima de contribución quedaría disminuida al monto base de 2 millones 600 mil colones, en el caso del régimen del Poder Judicial, monto que permite un nivel de vida adecuado y muy superior a las Pensiones actuales de los jubilados del Régimen de Invalidez, Vejez y Muerte que administra la Caja Costarricense de Seguro Social. Por otra parte, en lo que atañe a la supuesta categorización discriminatoria de las pensiones, cabe señalar, que los regímenes de pensiones están creados dentro de un marco de sostenibilidad en el transcurso del tiempo, en observancia de los principios de solidaridad y suficiencia establecidos en la doctrina de la seguridad social. iii. Sobre el Principio de Retroactividad de la Ley: En cuanto a la alegada violación a los principios de irretroactividad e intangibilidad patrimonial, en el presente caso, no existe en realidad controversia sobre el derecho a la pensión (se tiene derecho al pago de una prestación económica, pero no a un monto específico), siendo que se trata más bien, de la aplicación “futura” de una contribución especial solidaria, obligatoria y escalonada, cuya base mínima de contribución, es disminuida en virtud de la reforma referida en la Ley 9796 citada. Sobre este aspecto, aduce el accionante que la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona. Señala, que lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque estos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, considera que la persona tiene derecho es a la consecuencia, no a la regla. Por tanto, indica que se debe entender por derechos adquiridos, los derechos que ingresan definitivamente en el patrimonio de su titular (no entran en el concepto de meras expectativas) y las situaciones jurídicas consolidadas son aquellas que ya no pueden ser modificadas jamás. Reclama que con la reforma que se establece en la Ley N° 9796 se afectan derechos adquiridos de todas las personas que ya han cotizado y se les ha otorgado pensiones con los lineamientos dictados para el fondo de pensiones en la Ley Orgánica del Poder Judicial, por lo que esos derechos deben continuar tal como se otorgaron antes de la promulgación de la Ley impugnada, de lo contrario se violentarían derechos legalmente otorgados, afectando la situación económica, familiar, de seguridad y calidad de vida, de la mayoría de personas adultas mayores, que dependen de este derecho para su manutención. Indica que, los diputados y las diputadas en sus discusiones hicieron referencia a un estudio actuarial el cual señala que las pensiones no deberían otorgarse en montos superiores a 2.600.000 colones, pero esa recomendación es a futuro, en ningún momento señala el estudio que la fijación es retroactiva. Agrega que, desde el momento en que se ingresa al régimen jubilatorio la persona trabajadora queda protegida, no solo por las reglas y criterios legales y reglamentarios del propio régimen en sí, sino también por las normas y principios constitucionales que consagran su derecho a la jubilación o lo rodean de las especiales garantías de la Ley Fundamental, entre estas la que prohíbe dar a los primeros efecto retroactivo en perjuicio de persona alguna, o de sus derechos adquiridos o de situaciones jurídicas consolidadas, así como el de los “actos propios”, según el cual las autoridades públicas no pueden ir contra sus propios actos declarativos de derechos, salvo excepciones rigurosamente reguladas. Igualmente, estima que la Ley aquí impugnada es contraria a lo establecido en el artículo 73 de la Constitución Política, que reviste a las pensiones y jubilaciones con el carácter de derecho constitucional. En primera instancia debemos indicar, que en nuestro medio se han creado por vía legislativa, diversos regímenes especiales de pensiones sustitutivos del régimen general de invalidez, vejez y muerte que administra la Caja Costarricense de Seguro Social. La existencia de esos regímenes especiales ha sido avalada reiteradamente por la Sala Constitucional, por ejemplo, en su sentencia número 846-92 de las 13:30 horas del 27 de marzo de 1992, en la cual dispuso que no es contrario a la Constitución la existencia de regímenes especiales de jubilación o pensión, siempre que la contribución del Estado como tal sea igual para todos los regímenes. Partiendo de lo anterior, es importante señalar, que la Asamblea Legislativa tiene no solo la posibilidad, sino el deber, de adoptar las medidas necesarias para garantizar la sostenibilidad de los diversos regímenes especiales de pensiones, mediante la aprobación de las leyes necesarias para el logro de ese objetivo. Por otra parte, debe recordarse que dicho principio tiene valor constitucional, según se establece en el artículo 34 de nuestra Constitución Política, veamos: “Artículo 34: A ninguna ley se le dará efecto retroactivo en perjuicio de persona, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas”. Asimismo, el Principio de Irretroactividad en doctrina se define de la siguiente manera: “Se entiende por retroactividad la proyección del ámbito temporal de las normas a hechos o conductas previas a su promulgación”… Esas situaciones pretéritas, a las que se conectan consecuencias jurídicas presentes, puede haberse realizado por entero en el pasado (retroactividad auténtica), o haberse iniciado en el pasado para prolongarse hasta el presente (retroactividad impropia)”. A., PEREZ LUÑO: La Seguridad Jurídica, Editorial Ariel S.A., Barcelona, 1991, p. 91. Es decir, si los efectos ya se realizaron, la nueva norma no puede incidir sobre ellos, pero sí puede sobre efectos en curso de ejecución en los que no han generado efectos. Caso contrario, la irretroactividad impropia debe saldarse tomando en cuenta el acaecimiento del hecho al que la norma conecta un efecto jurídico. Sobre el particular, el autor Juan Alfonso Santamaría Pastor define la irretroactividad en los siguientes términos: “Es decir, que en la medida en que la extensión de los efectos de las normas a hechos y conductas acaecidas con anterioridad a su vigencia tiene como límite los derechos patrimoniales adquiridos y las situaciones jurídicas consolidadas al amparo de otras normas, estas otras normas, que ya no están formalmente vigentes, siguen regulando esos derechos y esas situaciones jurídicas (vid., SANTAMARÍA PASTOR, Juan Alfonso, Fundamentos de Derecho Administrativo, 1991, pág. 384.)”. Así también, la Sala Constitucional se ha pronunciado sobre el Principio de Irretroactividad en los siguientes términos: “Los conceptos de “derecho adquirido” y “situación jurídica consolidada” aparecen estrechamente relacionados en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en la que una cosa -material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado en (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la “situación jurídica consolidada” representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando estos no se hayan extinguido aún. Lo relevante en cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que -por virtud de mandato legal o de una sentencia que así lo haya declaradohaya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo “si..., entonces”; vale decir: si se ha dado el hecho condicionante, entonces la “situación jurídica consolidada” implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derecho adquirido o situación jurídica consolidada), el ordenamiento protege - tornándola intangible- la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y de certeza jurídica. En este caso, la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona, o de provocar que si se había dado el presupuesto fáctico con anterioridad a la reforma legal, ya no surja la consecuencia (provechosa, se entiende) que el interesado esperaba de la situación jurídica consolidada. Ahora bien, específicamente en punto a esta última, se ha entendido también que nadie tiene un “derecho a la inmutabilidad del ordenamiento”, es decir, a que las reglas nunca cambien. Por eso, el precepto constitucional no consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior; lo que significa es que -como se explicó- si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. Esto es así porque, se dijo, lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque estos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla...”. Resolución N. 2765-97 de las 15:03 horas del 20 de mayo de 1997. De lo anterior, se entiende que un elemento para estipular si una norma jurídica incide en retroactividad y, para establecer la aplicación de las leyes en el tiempo, es la existencia de situaciones jurídicas. Ahora bien, la situación jurídica consolidada es una situación subjetiva, porque es la consecuencia de una individualización de la regla establecida normativamente, y que otorga o reconoce un derecho o le suprime una cualidad o estado jurídico. Así también, en la sentencia número 2765-97, de las quince horas con tres minutos del veinte de mayo de mil novecientos noventa y siete, el Tribunal Constitucional señaló respecto a los alcances del Principio de Irretroactividad lo que a continuación se detalla: "En este caso, la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona, o de provocar que si se había dado el presupuesto fáctico con anterioridad a la reforma legal, ya no surja la consecuencia (provechosa, se entiende) que el interesado esperaba de la situación jurídica consolidada. Ahora bien, específicamente en punto a ésta última, se ha entendido también que nadie tiene un ‘derecho a la inmutabilidad del ordenamiento’, es decir, a que las reglas nunca cambien. Por eso, el precepto constitucional o consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no puede ser modificada o incluso suprimida por la norma posterior; lo que significa es que – como se explicó- si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. Esto es así porque, se dijo, lo relevante es que el estado de cosas de que goza la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla". En el caso de análisis, el precepto nuevo no está suprimiendo el beneficio otorgado. Lo único que hace es regular una situación futura, en el sentido de que amplía las causales de la restitución en virtud de eventuales actos futuros, en los que podría incurrir el beneficiario. Desde esta óptica, la norma no tiene ningún efecto de naturaleza retroactiva, el cual afecta un derecho adquirido o sus consecuencias o efectos, ya que se ubica en el futuro. Más aún, basta con que el administrado determine el no incurrir en una de las nuevas causales, para evitar la aplicación futura de la nueva ley”. De tal manera, que la retroactividad se manifiesta cuando una norma jurídica nueva pretende invadir el dominio de aplicación de la anterior, aplicándose a hechos que se han producido antes de su entrada en vigor. Si se quiere establecer si una norma es retroactiva debe definirse si su aplicación es a futuro, o, por el contrario, si intenta quebrantar en hechos o situaciones ya acontecidos o en curso de ejecución. A la luz de lo dispuesto en el artículo 34 citado, se debe entender que la referida contribución se debe aplicar a las pensiones, que se encuentran en curso y las que se otorguen a futuro, es decir, no existe violación al principio de irretroactividad por cuanto no cumple con la premisa contenida en dicho artículo. Lo anterior, siempre y cuando se cumpla el presupuesto que establece la norma cuestionada, es decir, que el monto que se recibe por concepto de pensión exceda más de seis veces el salario base más bajo pagado por en el Poder Judicial para el caso de las pensiones y jubilaciones en la Ley N° 8, Ley Orgánica del Poder Judicial, de fecha 29 de noviembre de 1937. Además, como ya indicamos con la pretensión de aplicar dicha contribución a las pensiones, no se pretende que las personas pensionadas devuelvan los montos que les fueron pagados hasta el 21 junio de 2020 (derecho adquirido) por concepto de pensión, ya que la aplicación del rebajo por concepto de la contribución citada, se está realizando hacia futuro. Dicho aporte por concepto de contribución, obedece a la objetividad que se requiere para mantener tanto el equilibrio económico de los recursos como a la seguridad para las personas pensionadas actuales y a futuro, y de tal manera brindar estabilidad al régimen, lo cual, únicamente se puede lograr, aplicando la Ley número 9796 de reiterada cita, por lo cual, de ninguna manera implica una violación al Principio de Irretroactividad como así lo hace ver el accionante. Se reitera que la estabilidad o sostenimiento de los regímenes de pensiones, no deben sufrir un desequilibrio financiero, por el contrario, lo que se quiere lograr es que con la aplicación de la norma, y por ende las referidas contribuciones, se brinde permanencia al jubilado y su pensión no se vea comprometida, de tal manera que no se tenga que buscar otras soluciones que podrían comprometer la existencia del presupuesto destinado para tal efecto. En el caso en estudio, no se da una lesión al reproche de irretroactividad, ya que la norma cuestionada lo que ha dispuesto es la obligada aplicación ex nunc (desde ahora) y no ex tunc (desde entonces), de una determinada contribución especial solidaria, obligatoria y escalonada; cuya base mínima de contribución es disminuida, en virtud de la reforma referida, para aplicar la carga a un monto base de 2 millones 600 mil colones, tanto a las pensiones futuras como a las pensiones y jubilaciones en curso de pago. A partir de la vigencia de la citada Ley número 9796 y a futuro, las reglas referidas al establecimiento de ese tope mínimo de aplicación de las pensiones son diversas, pretendiendo con ello compensar desequilibrios del pasado y garantizar la supervivencia del sistema; con lo cual tampoco se afectan derechos adquiridos, pues lo que se ha reconocido es un derecho fundamental a la pensión, pero no a un monto específico. Conforme la acepción dinámica de los derechos adquiridos, debe diferenciarse el surgimiento del derecho de sus efectos; el derecho surge del agotamiento de las hipótesis previstas en la normativa; es decir, responden a situaciones agotadas, mientras los efectos se proyectan hacia el futuro y pueden ser variados en virtud de nuevas normas. Así, la distinción entre los derechos y sus efectos permite la aplicación de leyes nuevas a los efectos sucesivos de un derecho, sin que ello traiga aparejado que dichas leyes tengan efectos retroactivos. Se concluye que, estas tesis dinámicas sugieren que los derechos adquiridos pueden tener dos componentes: un núcleo intangible representado en el derecho mismo, y unos elementos dinámicos, que pueden variar con el tiempo y que se relacionan principalmente con las condiciones en las cuales el derecho puede ser ejercido o con las prestaciones periódicas que surgen de él. Es así que, a partir de esa premisa conceptual puede afirmarse, que la Constitución protege los derechos adquiridos ante la retroactividad normativa; es decir, las situaciones ya formadas y no las condiciones de ejercicio del derecho, lo cual significa que quien esté disfrutando de un derecho cuyos efectos se consolidan de manera escalonada o en un tracto sucesivo −como por ejemplo la pensión, tiene su derecho amparado por la Constitución, pero los efectos que aún no se han consolidado son modificables en virtud de finalidades constitucionales y con sujeción a los límites que la propia Carta impone. Asimismo cabe indicar, que si bien existe un derecho fundamental a la pensión ampliamente consolidado en la jurisprudencia de la Sala Constitucional, también ese Tribunal ha precisado que no existe un derecho a que la prestación derivada de ese derecho lo sea por un monto específico, pues “…la pensión o jubilación puede variarse según las circunstancias, ya sea para recalificar el beneficio aumentándolo o disminuyéndolo, cuando el aporte de los beneficios no sea suficiente para cubrir su cuota en el costo del régimen...". (Sentencias 1925-91 de las 12:00 horas del 27 de setiembre de 1991, 2379-96 de las 11:06 horas del 17 de mayo de 1996 y 3250- 96 de las 15:27 horas del 2 de julio de 1996). Así, en la sentencia 1925-91 de las 12:00 horas del 27 de setiembre de 1991, ese Tribunal se pronunció acerca de una consulta de constitucionalidad formulada por varios diputados, sobre la validez de una reforma integral a la Ley de Pensiones y Jubilaciones del Magisterio Nacional. Entre los temas consultados se encontraba el de la validez del entonces artículo 6 del proyecto, pues se estimaba que podría violar el principio de razonabilidad constitucional al disponer que toda persona que disfrute de una pensión quedaría excluida de la posibilidad de desempeñar cargos en la Administración Pública. Esta Sala, en la sentencia mencionada, estimó que la norma no violaba la Constitución, sino que, por el contrario, se encontraba acorde con el principio contenido en los artículos 50, 56 y 74 de la Constitución Política, según los cuales, el Estado debe propiciar el más adecuado reparto de la riqueza, organizando la producción y propiciando que todos tengan una ocupación honesta y útil; ya que al ser los recursos y los medios de subsistencia limitados, no resulta irrazonable restringir la percepción simultánea de pensión y salario del Estado: “La Constitución Política en el Capítulo de los Derechos y Garantías Sociales declara su adhesión al principio cristiano de justicia social, que resulta la piedra angular de todas las soluciones que deba dictar el legislador en torno a la cuestión social. Así, hay valores y principios asumidos constitucionalmente como la solidaridad, la igualdad y la efectiva participación de todos en la vida económica del país, que son expresión de esa causa esencial de lo social. En efecto, el artículo 50 establece que el Estado debe procurar el mayor bienestar de todos los habitantes del país, debiendo organizar y estimular la producción y el más adecuado reparto de la riqueza, el artículo 56 señala que el Estado debe procurar que todos tengan una ocupación honesta y útil, y, el artículo 74 declara que la legislación que se dicte para organizar los factores que concurran al proceso de producción (legislación social y de trabajo), debe esencialmente, fundamentarse en el principio indicado. En consecuencia partiendo de que los medios de producción y subsistencia no son ilimitados, que un sector de la población, como es público y notorio, carece de ocupación justamente remunerada, y que los derechos y garantías sociales se apoyan en estos principios y valores esenciales, no resulta irracional la disposición que se pretende aprobar. Si uno de los fines del Estado es la mejor distribución de la riqueza para lograr entre otras cosas la incorporación de todos a la vida productiva, no puede ser contrario a la razón, que se impida la acumulación de recursos en algunos en menoscabo de las necesidades de otros, lo que llevaría implícita la acumulación de privilegios que no se encuentran fundamentados en una situación de necesidad en perjuicio de quienes aspirado legítimamente, ven cerrado el acceso al derecho al trabajo, a la honesta subsistencia y a su autorrealización, por causas ajenas a su propia voluntad. No comparte la Sala los términos de la Consulta, en el sentido que el proyecto excluye a las personas jubilados o pensionadas, de manera general del desempeño de cargos en la Administración Pública. La norma lo que propone es reiterar un concepto de añeja identidad, como lo es evitar la simultaneidad en el desempeño de una función pública y el disfrute de un beneficio de retiro”. Ahora bien, en el caso específico de las contribuciones especiales, esta Sala, en su sentencia N.° 3250-96 de las 15:27 horas del 2 de julio de 1996, indicó que tales contribuciones no son inconstitucionales por encontrar fundamento en la naturaleza social del derecho a la jubilación, naturaleza que se inscribe dentro de los principios que conforman el Estado Social de Derecho, recogidos por el artículo 50 de la Constitución Política. En la resolución mencionada, la Sala Constitucional ratificó la validez de una contribución muy similar a la que se cuestiona en esta acción. En esa oportunidad indicó lo siguiente: “… la contribución que se fija a cargo de los pensionados del Régimen de Pensiones del Magisterio Nacional en el artículo 12, y la exclusión que de dicha contribución se hace como derecho adquirido en el transitorio I ambos de la Ley número 7268, no lesionan el artículo 34 de la Constitución Política, por formar parte del elenco de limitaciones que válidamente han formado parte el derecho fundamental a la jubilación que ostenta el accionante desde su ingreso y de las cuales no puede sustraerse porque las adquirió junto con él. (…) La forma en que el artículo 12 de la Ley 7268 regula la contribución a cargo de los pensionados del Régimen del Magisterio Nacional, no contraviene el artículo 45 de la Constitución Política, primero, porque respeta el principio de progresividad (única falta que se hizo notar al evacuar en su oportunidad la Consulta Legislativa y que el Parlamento se encargó de enmendar) con lo que deja prácticamente intacto un monto suficiente a juicio de la Sala para garantizar el efectivo disfrute del derecho a la jubilación, y segundo, porque los montos que se cobran por los distintos excesos que ocurran en casos concretos tienen un claro fin protectivo y uniformador en beneficio del grupo de personas para quienes fue establecido el régimen; es decir, están dirigidas al bienestar social de todos o bien de la gran mayoría de los miembros para los cuales se concibió el régimen. Ello puede conllevar que en algunos sistemas jubilatorios existan normas redistributivas para aquellos casos que pueden llamarse si se quiere, extraños a la razón de ser del régimen y que deben por lo tanto, sufrir un proceso de uniformación para asimilar los beneficios percibidos (en la medida de lo necesario y posible) a los que reciben la mayoría de los beneficiados del régimen, teniendo que hacer, en consecuencia, -si es su deseo seguir disfrutando de los beneficios del sistema- un mayor aporte por recibir una mayor contraprestación en relación con las personas que fueron tomadas en consideración al diseñarse el sistema -en este caso, los maestros-, quienes perciben un salario sustancialmente menor y ,en consecuencia, lo es también su jubilación o pensión. Justo es pues -por el carácter solidario del régimen- fijar un monto máximo suficientemente alto que permita incluir los salarios superiores de los beneficiarios propios del fondo y someter a mayor exigencia participativa a los que estén por encima de él, por provenir siempre de obligaciones no contempladas dentro de las tomadas en consideración al fijar las bases del sistema.” (El énfasis no es del original) En este sentido, se debe tener en consideración, que las garantías que la Constitución contempla a favor de las personas pensionadas no pueden interpretarse en el sentido de recortarle al legislador el ejercicio de la función que la propia Constitución le ha confiado, pues ello sería petrificar el ejercicio dinámico de legislar sobre grupos determinados de individuos, en franco detrimento de la generalidad. Es por tal razón que este Despacho estima, que las normas cuestionadas no infringen derechos adquiridos, situaciones jurídicas consolidadas, la prohibición de retroactividad, ni la doctrina de la supervivencia del derecho abolido. iv. Sobre los derechos adquiridos y situaciones jurídicas consolidadas Nuestra Constitución Política establece las reglas que rigen la vigencia y eficacia de las normas jurídicas, es así como esta Carta Fundamental señala que la norma jurídica mantiene su vigencia y la posibilidad de producir efectos jurídicos hasta tanto no sea derogada por otra posterior2 o bien declarada inconstitucional por la Sala Constitucional. Lo que significa que jurídicamente la ley es obligatoria y aplicable mientras no se produzca el acto de la autoridad correspondiente dirigido a poner fin a esa obligatoriedad. Lo anterior, no significa de ningún modo que la Administración pueda o deba desconocer los derechos adquiridos de buena fe o de las situaciones jurídicas consolidadas ante la desaparición de una norma, pues tal acción iría contra lo dispuesto en los artículos 34 Constitucional4 y 193 de a Ley de la Jurisdicción Constitucional. Efectivamente, el artículo 193 de la Ley de la Jurisdicción Constitucional, establece que la disposición contenida en el artículo 91 de ese cuerpo, no se aplicará respecto de aquellas relaciones o situaciones jurídicas que se hubieren consolidado por prescripción o caducidad, en virtud de sentencia pasada en autoridad de cosa juzgada material o por consumación en los hechos, cuando éstos fueren material o técnicamente irreversibles, o cuando su reversión afecte seriamente derechos adquiridos de buena fe; todo lo anterior, sin perjuicio de las potestades de la Sala Constitucional, de conformidad con dicho artículo. Ahora bien, siendo relevante la comprensión adecuada de los alcances legales de los conceptos “derechos adquiridos de buena fe” y “situaciones jurídicas consolidadas”, a continuación, expondremos lo que la doctrina y jurisprudencia administrativa y judicial han dicho al respecto. Para la doctrina costarricense, un derecho se adquiere o una situación jurídica se consolida cuando se realiza la situación de hecho prevista por la norma para que se produzcan los efectos que la misma disposición regula. Por su parte, Diego Baudrit Carrillo, jurista costarricense realiza una acertada distinción entre derechos adquiridos y meras expectativas de un derecho, al señalar que los primeros son aquéllos que han entrado definitivamente en el patrimonio del titular y que por lo tanto un tercero no puede despojarlo de ellos, mientras que la expectativa sí puede desaparecer por una voluntad privada ajena a su titular. En este sentido, German Cascante Carrillo, nos señala que derecho adquirido es aquél que por razón de la misma ley se encuentra irrevocable y definitivamente incorporado al patrimonio de una persona, por lo cual, nos agrega que cuando una nueva legislación choca, suprime o modifica la precedente situación jurídica, en principio y por efecto de la irretroactividad de las leyes, salvo expresa indicación en contrario, los derechos adquiridos son respetados por la nueva ley. Para la delimitación del concepto de derecho adquirido, el jurista García Trevijano expone tres criterios. El primero de ellos, pone énfasis en el modo de adquisición de los derechos, considerando como tales, los reconocidos únicamente en títulos particulares, pero no los que se derivan de una ley. Para el autor esta postura no es convincente, ya que no “hay duda de que una ley singular pueden derivar derechos adquiridos como cualquier otro acto jurídico (…)”. El segundo criterio, plantea la diferenciación del derecho subjetivo y el derecho reflejo y, también, entre el derecho en sí mismo y la expectativa del derecho. De esta forma, sólo los citados en primer lugar en cada una de las dos alternativas podrían considerarse como derechos adquiridos. Esta tesis, de clara inspiración alemana, entiende que el núcleo central de los derechos adquiridos estaría constituido por los derechos patrimoniales y fundamentalmente por la propiedad. La combinación de la anterior tesis con la que se propone a continuación, aporta un método para la definición del concepto que se analiza. Este tercer criterio propone la investigación en cada caso concreto, de si el derecho se ha ejercitado o al menos, si se ha podido ejercitar. Sólo en el supuesto de que pudiera contestar afirmativamente a las interrogantes anteriores, podría hablarse con certeza de la existencia de un derecho adquirido. En razón de lo expuesto, se observa que para que exista un derecho adquirido resulta necesario el cumplimiento, por parte del titular del derecho, de los requisitos establecidos por el ordenamiento. Lo anterior para que se incorpore a su patrimonio de manera irrevocable, convirtiéndose en un derecho cierto e inmodificable del cual el titular ya no puede ser despojado; ni siquiera en virtud de la promulgación de una nueva legislación. Esto por cuanto existe un derecho adquirido cuando se han realizado todos los supuestos normativos previstos en la ley vigente como causa generadora de tal derecho. Ahora bien, la situación jurídica consolidada es la posición en que se encuentra el titular del derecho adquirido, ya sea éste producto de la ley o del contrato. Por ejemplo, el acreedor se encuentra en una situación jurídica consolidada por cuanto es el titular de un derecho adquirido de crédito. Mientras el derecho adquirido es el crédito, su posición de acreedor constituye una situación consolidada. Sobre este particular, la Sala Constitucional se ha pronunciado de forma reiterada en cuanto a los conceptos de “derechos adquiridos de buena fe” y “situaciones jurídicas consolidadas”, señalando que estas figuras son consecuencias lógicas de la garantía constitucional de la irretroactividad de la ley, consagrada en el artículo 34 de nuestra Constitución Política. Además, ese Tribunal constitucional ha señalado que la palabra “ley” debe entenderse en su sentido genérico, como referido a las normas jurídicas en general. Desde sus inicios, la Sala Constitucional ha venido señalando que el principio de irretroactividad, al igual que los demás relativos a los derechos o libertades fundamentales, no es tan solo formal, sino también material. De este modo resulta afectado no sólo cuando una nueva norma o la reforma de una anterior altera ilegítimamente derechos adquiridos o situaciones consolidadas al amparo de la norma anterior; sino también cuando los efectos, la interpretación o la aplicación de esta última produce un perjuicio irrazonable o desproporcionado al titular del derecho o situación que ella misma consagra. Para la Sala Constitucional, una situación jurídica puede consolidarse con una sentencia judicial que declare o reconozca un derecho controvertido, y también al amparo de una norma de ley que establezca o garantice determinadas consecuencias que una ley posterior no puede desconocer sin incurrir en vicio de inconstitucionalidad, por infracción del artículo 34 de la Constitución Política. Los conceptos de "derecho adquirido" y "situación jurídica consolidada" aparecen estrechamente relacionados en la doctrina constitucionalista. El derecho adquirido denota aquella circunstancia consumada en la que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente– ha ingresado en (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. También, la Sala Constitucional16 ha señalado que el derecho adquirido es aquél que se ha obtenido en firme, por la vigencia de la norma, aun cuando aquélla haya fenecido formalmente, de manera que haya dado fundamento al disfrute del derecho, en la medida que no haya necesidad de acudir nuevamente al texto anulado, pues de ser así, evidentemente ya no es posible conceder beneficio alguno, en razón que ésta fue anulada. Por su parte, la situación jurídica consolidada representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante en cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o de una sentencia que así lo haya declarado– haya surgido ya a la vida jurídica una regla clara y definida que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo «si..., entonces...»; vale decir: si se ha dado el hecho condicionante, entonces la "situación jurídica consolidada" implica necesariamente que deberá darse también el efecto condicionado. En ambos casos (derecho adquirido o situación jurídica consolidada), el ordenamiento protege – tornándola intangible– la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y de certeza jurídica. En este caso, la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona, o de provocar que, si se había dado el presupuesto fáctico con anterioridad a la reforma legal, ya no surja la consecuencia (provechosa, se entiende) que las personas interesadas esperaban de la situación jurídica consolidada. Ahora bien, específicamente en relación con esta última, se ha entendido también que nadie tiene un "derecho a la inmutabilidad del ordenamiento", es decir, a que las reglas nunca cambien. Por eso, el precepto constitucional no consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior; lo que significa es que –como se explicó– si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla, no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. Esto es así porque, se dijo, lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla. Ahora bien, en el caso sub examine, es viable ejemplificar los conceptos anteriores a partir de los elementos del caso concreto. De esta forma la contribución se pagará sobre el exceso del monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial entonces podemos decir que: a) La protección de los derechos adquiridos de las personas pensionadas significa, en este caso, que no obstante la entrada en vigencia de la Ley número 9796 mencionada, todos los derechos patrimoniales de dichas personas pensionadas deben estimarse irrepetibles, es decir, la persona pensionada no tiene que pagar dinero alguno a la Administración por el monto que por concepto de contribución aportaron al régimen respectivo, antes de la entrada en vigencia de la ley cuestionada. En la medida en que habían ingresado definitivamente al patrimonio de estas personas con anterioridad a la entrada en vigencia de la nueva ley, pues resultaría absurdo –e inconstitucional– pretender que deban ser devueltos, o cosa semejante. b) La tutela de las situaciones jurídicas consolidadas implica que, si bien las personas interesadas no podían pretender que las normas en cuestión (y, con ellas, la regla que creaban) no pudiesen ser nunca más objeto de reforma, sí tenían derecho a esperar que respecto de ellas mismas y de todas las demás personas que estuviesen sometidas al mismo estado de cosas, se produjese la consecuencia que anticipaban. Ese estado de cosas estaba caracterizado por la regla que conectaba causalmente su situación fáctica con el efecto previsto en la norma. El hecho de que la regla haya sido reformada no puede tener la virtud de producir que para ellos ya no surja la consecuencia a la que ya tenían derecho. Esto sólo podría ocurrir, ex nunc, para quienes, a la fecha de la reforma legal o de la declaratoria de inconstitucionalidad, no hubiesen adquirido ese título. Esto significa que todos los pagos que hubiesen disfrutado las personas pensionadas antes de la reforma legal que modifica el monto que se encuentra exento de la Contribución especial, solidaria y contributiva, pueden ser catalogados como derechos adquiridos en los términos anteriormente expuestos. Con posterioridad a dicha reforma, estarían protegidas únicamente aquellas situaciones jurídicas consolidadas, es decir aquellas situaciones cuyos efectos ya se hayan producido al amparo de la norma que fue reformada. Sobre este último aspecto, es importante insistir a efectos de que quede claro, el hecho que un pensionado hubiere venido disfrutando durante “x” número de años, una pensión sin aplicación de ninguna contribución adicional, por concepto de aporte al régimen, no significa que tiene un derecho adquirido o una situación jurídica consolidada respecto a este beneficio, pues a partir de que la norma fue reformada, ya no existe sustento legal que cubra dicho pago, recordemos que el disfrute de un monto específico por concepto de pensión a futuro no puede calificarse como un derecho adquirido o una situación jurídica consolidada, sino como una expectativa de derecho. Aunado a lo anterior, es menester indicar que el legislador puede modificar las condiciones de los regímenes de pensiones sin que ello implique la vulneración de algún derecho adquirido. Es más, esta Honorable Sala ha manifestado que la implementación de limitaciones a los regímenes de pensiones no representa ningún problema de constitucionalidad, siempre y cuando dichas limitaciones se apeguen a los principios de razonabilidad y proporcionalidad. De allí que, el monto de las próximas pensiones puede variar siempre que no se supriman del todo, puesto que si se suprimen, ello implicaría que el derecho a la pensión ha sido revocado en desconocimiento de la protección de los derechos adquiridos. En definitiva, las garantías que la Constitución contempla a favor de las personas pensionadas, no pueden interpretarse en el sentido de recortarle al legislador el ejercicio de la función que la propia Constitución le ha confiado, pues ello sería petrificar el ejercicio dinámico de legislar sobre grupos determinados de individuos, en franco detrimento de la generalidad. v. Sobre el principio de racionalidad y proporcionalidad constitucionales. Como parte del fundamento expuesto por el actor en sus alegatos, indica, que los porcentajes establecidos en la ley cuestionada, se aplican sobre montos brutos, lo que genera un doble gravamen sobre los dineros percibidos, ya que se aplica esa deducción sobre deducciones obligatorias que debe cancelar cada persona pensionada, como es el impuesto sobre la renta y el porcentaje del 13% de cotización obligatoria al régimen, convirtiéndose en una doble tasa impositiva sobre un mismo beneficio, lo que consideran improcedente y evidencia la voracidad impositiva que se quiere imponer a las pensiones. Por lo anterior, estima que también la normativa impugnada es contraria al artículo 40 de la Constitución Política. Ahora bien, para llevar a cabo un examen de este aspecto, resulta necesario que el accionante aporte prueba o, al menos, elementos de juicio en los que sustente su argumentación, siendo que el incumplimiento de esos requisitos, hace inaceptables los alegatos de inconstitucionalidad. Lo anterior, debido a que no es posible hacer un análisis de “razonabilidad”, sin la existencia de una línea argumentativa coherente que se encuentre probatoriamente respaldada. Del estudio de la acción, se advierte que ésta no solo no indica clara y concisamente los motivos que le llevan a concluir que la norma cuestionada es irrazonable, sino que tampoco aporta prueba alguna que permita llegar a esa conclusión, transformando el debate en la exposición de conceptos subjetivos y sumamente abstractos. Por otra parte, este caso no presenta las características de una situación de "irrazonabilidad" evidente y manifiesta, que además sea fácilmente perceptible, antes bien, se podría justificar que la norma se ajusta al fin de la reforma legislativa, cual es corregir las distorsiones económicas del sistema de pensiones con cargo al Presupuesto Nacional, con el objeto de asegurar el pago de las pensiones y garantizar la estabilidad financiera del sistema. vi. Sobre la violación al principio de protección a las personas adultas mayores. Aunado a lo anterior, con respecto a este alegato, el actor indica que el derecho a una jubilación forma parte del elenco de derechos a proteger por el juzgador constitucional, derechos que, si bien pueden ser limitados, estas limitaciones deben imponerse conforme a los convenios internacionales con peso supra constitucional que aumentan el espectro de protección de los derechos de las personas trabajadoras: por ejemplo, el convenio N° 102 de la OIT. Con base en lo anterior, alega que no puede modificarse por medio de la ley que impugna en esta sede el fondo de pensiones del Poder Judicial, primero, porque atenta contra el mayor valor de las normas internacionales; segundo, y más importante aún, porque debe interpretarse conforme al principio pro homine a favor de las personas jubiladas, es decir, la no afectación de sus derechos humanos fundamentales y de grupos vulnerables: menos para regular aspectos que no son propios del mismo régimen de pensiones, sino para ser desviados a sustentar las finanzas públicas o de otros regímenes de pensiones que han sido descuidados y no eficientes en su manejo. Por lo anterior, estima que la normativa impugnada es contraria al artículo 7 de la Constitución Políticas e irreversibles consecuencias en la población adulta mayor pensionada. Al respecto, debemos indicar que si bien existe un derecho fundamental a la pensión ampliamente consolidado en la jurisprudencia de la Sala Constitucional, también se ha precisado que no existe un derecho a que la prestación derivada de ese derecho lo sea por un monto específico, pues “…la pensión o jubilación puede variarse según las circunstancias, ya sea para recalificar el beneficio aumentándolo o disminuyéndolo, cuando el aporte de los beneficios no sea suficiente para cubrir su cuota en el costo del régimen...". (Sentencias 1925-91 de las 12:00 horas del 27 de setiembre de 1991, 2379-96 de las 11:06 horas del 17 de mayo de 1996 y 3250- 96 de las 15:27 horas del 2 de julio de 1996, 1625-2010 de las 09:30 del 27 de enero de 2010, 19485-2018 del 21 de noviembre del 2018 y 236-2019 de las 12:02 del 9 de enero de 2019). Recapitulando, nada se opone dentro del marco constitucional, a que el legislador introduzca reformas al sistema de la Seguridad Social y regule o modifique, hacia el futuro, los elementos normativos que deben tener en cuenta los operadores jurídicos para reconocer el monto de la pensión en los sistemas especiales contributivos con cargo al Presupuesto Nacional, lo cual hace en ejercicio de las atribuciones que la propia Constitución Política le ha encomendado y que comportan un cierto margen de discrecionalidad, que le permite introducir válidamente las reformas que, de acuerdo a las necesidades económicas y conveniencias sociales, así como a la evolución de los tiempos, juzgue necesarias para la efectividad y garantía del derecho a la pensión, siendo con esto, que en ningún momento se deja desprotegido a la persona adulta mayor, pues siempre se hace bajo los principios de razonabilidad y proporcionalidad. Ahora bien, respecto a la alegada ausencia de estudios justos de conformidad con lo que establece la Norma 102 de la Organización Internacional del Trabajo (OIT), es importante mencionar que, dentro de los límites a la potestad legislativa de configuración de los distintos regímenes especiales sustitutivos de pensiones, se encuentra el respeto que debe privar por los principios constitucionales de razonabilidad y proporcionalidad, así como el necesario ajuste de la ley a la prohibición de confiscatoriedad, siendo que la mejor forma de evitar infracciones a esos principios constitucionales es fundamentando la reforma que se pretende realizar en estudios técnico-actuariales que evidencien la necesidad, la razonabilidad y la proporcionalidad de la iniciativa. Valga mencionar, que los estudios requeridos fueron solicitados con vista a la sostenibilidad de largo plazo, y siendo que se cuenta con los referidos informes, no habría inconstitucionalidad en ese sentido. Sobre este punto, la Contraloría General de la República señaló en el informe número DFOE-SAF-0336 del 01 julio del 2019, que debe privar la equidad y similitud en las condiciones de los distintos regímenes. Sobre el tema, la Sala Constitucional ha indicado que “ …esa posibilidad de modificación que tiene acordada a su favor el Estado, encuentra límites no sólo provenientes de la Constitución Política, sino del Derecho Internacional, entre los que se destacan los fijados en el Convenio número 102 de la Organización Internacional del Trabajo relativo a la norma mínima de seguridad social, que señala, en lo que aquí interesa, que las prestaciones concedidas en aplicación del citado Convenio y los gastos de administración se encuentren respaldados en estudios técnicos y no que sean implantados o modificados por una decisión política, arbitraria o antojadiza de la Administración, prestaciones entre las cuales se encuentra el monto de cotización para el régimen de pensiones por parte del empleado y el Estado como tal y como patrono y que obliga a fundamentar esas variaciones en estudios actuariales relacionados con la solvencia del régimen por afectar”.(Sentencia N.° 2379-96 de las 11:06 horas del 17 de mayo de 1996). Evidentemente, el legislador cuenta con cierto margen de discrecionalidad para regular las condiciones bajo las cuales deben operar los regímenes especiales de pensiones, pero ese margen de discrecionalidad no es absoluto, sino que debe encontrar respaldo en datos objetivos emanados de estudios técnicos. En lo que concierne a la posible infracción del Convenio 102 de la OIT, debemos indicar que los artículos 65.3 y 67.a de ese instrumento establecen expresamente que podrá prescribirse (significa determinarse por la legislación nacional o en virtud de la misma, conforme al art. 1.1 Ibíd.), según la regla fijada por las autoridades competentes, un máximo para su monto, a reserva de que ese máximo respete el mínimo establecido por el propio Convenio, que en el caso de prestaciones por vejez es de un 40% del total del salario del trabajador ordinario no calificado (arts. 65, 66, 67 Ibíd.); lo cual se constituye como parámetro de constitucionalidad (convencionalidad) de la cuantía de la pensión. Al respecto el accionante señala que, al pensionarse la atención de las obligaciones familiares no se acaban. Sin embargo, el fijar un tope al cálculo del derecho de pensión es constitucionalmente válido, por lo que considera esta Cartera, que las normas impugnadas no infringen en ningún momento el derecho a una remuneración digna contenido en el artículo 3 de la Declaración Universal de Derechos Humanos, así como tampoco lesionan lo establecido en la Convención Interamericana de los Derechos Humanos de las personas Mayores (aprobada por Costa Rica mediante la Ley N° 9394 del 8 de setiembre de 2016), ni la Ley Integral para la Persona Adulta Mayor, pues la reforma introducida en Ley N° 9796, obedece a los principios constitucionales de razonabilidad, proporcionalidad, equidad y equilibrio financiero y con ella busca más bien, darle a futuro sostenibilidad y estabilidad a los sistemas de pensiones. Además, conforme a la sentencia de 28 de febrero de 2003, del caso cinco pensionistas –vs− Perú, la Corte Interamericana de Derechos Humanos admitió que mediante ley en sentido estricto y por fines públicos o sociales (criterios financieros razonables –ahorro fiscal−, que con un fin legítimo, tiendan a preservar el bienestar general, justificado en la estabilidad financiera del Estado en general, y en particular, del sistema pensional del sector público), se pueda limitar o reducir “a futuro” el efecto patrimonial de las pensiones de la Seguridad Social y en especial su monto; dándose a entender que las restricciones pueden comprender válidamente a las pensiones existentes (en curso de pago) y no sólo las futuras que se acusen a partir de la vigencia de dicha ley. vii. Sobre la intangibilidad de los actos propios y seguridad jurídica. Sobre el tema de seguridad jurídica, manifiesta el accionante que, la reforma al régimen de pensiones del Poder Judicial contraviene de manera flagrante el principio de seguridad jurídica, entendida como la confianza de la ciudadanía en los ordenamientos válidos y vigentes, de forma tal que no puedan darse quebrantos a este sistema que diluyan sus derechos. Aduce que este parámetro de constitucionalidad en regímenes de pensiones, forma parte de nuestro ordenamiento jurídico y de esta forma significan protección y confianza de quienes mantengan periodos de estancia en regímenes de pensiones. En el caso de la reforma al fondo de pensiones del Poder Judicial, esta variable se agrava pues se trata de un fondo obligatorio al que deben someterse las personas trabajadoras del sector independiente de su voluntad. En este marco de ideas, las variaciones que impone el proyecto quebrantan esa confianza y seguridad del personal judicial en atención a la abrumadora diferencia que se plantea en las reformas, introduciendo una contribución por concepto de solidaridad para la sostenibilidad de los otros regímenes de pensión. Señala que, en el caso de las personas jubiladas la situación es sumamente gravosa, ya que han elaborado un proyecto de vida, adquiriendo compromisos económicos a largo o mediano plazo y de repente, contando con esa seguridad jurídica ven de forma abrupta modificadas sus condiciones con afectaciones severas en su esfera patrimonial, que en el caso de las personas jubiladas se ve aumentada por una angustia, frustración e impotencia de poder hacer algo al respecto, en la época de su vida en que deberían estar tranquilos y seguros con su jubilación, tras toda una vida de entrega y trabajo para la institución. Además, estima que estos rebajos son confiscatorios, pues, según explica en la ley que impugna, se fijan porcentajes de deducción del 35% para aquellas jubilaciones superiores a 6 salarios base del puesto más bajo del Poder Judicial, aproximadamente la base es 2.530.000 colones y sobre el exceso se cobra un 35%, un 45% sobre el exceso de 3.200.000 colones y un 55% sobre el de 4.200.000 colones (datos aproximados), porcentajes fijados sin ningún estudio técnico, por lo que son arbitrarios y confiscatorios, apropiándose de dinero que por derechos adquiridos pertenecen a las personas jubiladas. Por último, el accionante alega que mediante la Ley 9796, se obvia la seguridad jurídica que otorgan los tratados internacionales, la Constitución, las leyes de la República y los Votos de la Sala Constitucional. Lo cual no es cierto, ya que la aplicación de la norma impugnada refleja respeto al principio de seguridad jurídica por parte del legislador, al solamente actuar en función de las disposiciones legales vigentes para la aplicación del tope en las pensiones, rediseñando y redistribuyendo los recursos de la contribución especial solidaria de una forma más equitativa. En la misma línea, resulta conveniente destacar que con la implementación de esta Contribución, se ha procurado el resguardo de una serie de principios, como lo es el Principio Pro Fondo. El Principio Pro Fondo ha sido desarrollado por la Sala Segunda de la Corte Suprema de Justicia, en las sentencias números 1995-0390 de las dieciséis horas del quince de noviembre de 1995, 2006-0213 de las nueve horas diez minutos del siete de abril de 2006, y 2010-0075 de las catorce horas del tres de junio de 2010, los cuales señalan que: “A tenor de la jurisprudencia que, como doctrina, contribuye a interpretar, delimitar e integrar los alcances de la normas jurídicas, la solución dada a la litis por el fallo de que se conoce, tampoco es la correcta; toda vez que, cuando se discuten pensiones y jubilaciones, no es aplicable el "principio protector" en su derivación de la "regla indubio pro operario", ya que cuando se trata de la materia de previsión social, toda duda debe resolverse en favor del deudor, pues el sostenimiento y la vigencia del Fondo de Pensiones, ha de prevalecer en interés de los potenciales beneficiarios; criterio éste, que resulta a tono con el precepto 17 del Código de Trabajo, que manda interpretar el ordenamiento jurídico, no solamente de conformidad con el interés del trabajador, sino también en armonía con la conveniencia social;(…)” “En lo que respecta al primer argumento no lleva razón el recurrente, pues el principio pro fondo no se reduce a una tesis doctrinaria de hace muchos años atrás, sino que es de amplia aplicación a nivel jurisprudencial, en la búsqueda de darle a los distintos fondos de pensiones, ya sean administrados por la Caja Costarricense de Seguro Social o por alguna entidad autorizada, la mayor estabilidad y duración, para lograr que se desarrolle y ejecute el principio de solidaridad que también rige en materia de seguridad social. Sobre la aplicación del principio pro fondo esta Sala ha dicho lo siguiente: “IV.- Tampoco ha incurrido, el Tribunal, en una aplicación indebida del in dubio pro operario, ni de la condición más beneficiosa. Respecto del primero, en forma reiterada, esta Sala, ha señalado que en materia de seguridad social, éste principio sede en favor de una interpretación pro fondo, que nutre las prestaciones de la universalidad de los beneficiarios actuales y de los potenciales”. Por lo expuesto, se debe considerar que si bien es cierto la pensión o jubilación es un derecho concedido a las personas pensionadas o jubiladas, éste no puede ser "considerado como" irrestricto o que no pueda limitarse su disfrute, máxime cuando se habla de fondos públicos. En este sentido, la Sala Constitucional en su sentencia número 20100001625 de fecha veintisiete de enero de 2010, haciendo referencia a otra de sus sentencias, señala lo siguiente: “… dentro de todo el universo de limitaciones, condicionamientos y restricciones que puede sufrir el derecho fundamental a la jubilación, habrá un grupo de ellas de las que podrá predicarse que son constitucionalmente válidas siempre que cumplan con dos condiciones, a saber: a) que provengan de los textos que reconocen dichos derechos y garantías, y b) que sean necesarias para el ejercicio mismo del derecho de acuerdo con su naturaleza y fin. (…) lo que debe tenerse presente es que el estudio y pronunciamiento sobre cada caso particular, habrá de tener en cuenta que toda limitación y restricción debe cumplir con los requisitos establecidos por esta sede, de ser razonable y proporcionada a la naturaleza y fin del derecho de jubilación y además derivarse de las normas que los reconocen y garantizan, según se ha explicado.” De lo anterior se colige que no toda restricción al derecho fundamental a la pensión es inconstitucional por sí misma, sino solamente aquella que no sea razonable y proporcionada (…) ese tope, para que no sea irrazonable, desproporcionado, o arbitrario, debe mantener alguna relación con el ingreso que percibía el servidor activo, precisamente porque es con base en ese ingreso que se calcula la cotización al régimen (…) IV. El derecho a la jubilación y el Estado Social de Derecho. Los artículos 50, 56 y 74 de la Constitución Política configuran “el modelo de Estado social y democrático de Derecho” (Res. 9255 de las 16:03 horas del 25 de agosto del 2004). Como parte de este mismo modelo el principio de solidaridad social actúa como un eje orientador de política interna del Estado, porque el Estado Social de Derecho “entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables” (Res. 13205 de las 15:13 horas del 27 de septiembre del 2005). En forma consecuente y con sustento en el Estado Social de Derecho, “nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de… los trabajadores” (ibid), como es el caso del derecho de jubilación. Precisamente, como consecuencia de lo anterior, ese mismo modelo cumple con las funciones propias de todo principio fundamental, al convertirse en un parámetro de validez normativa, criterio hermenéutico e instrumento funcional integrador: “En su condición de principio general, emana una particular proyección normativa en todos los ámbitos de creación, interpretación y ejecución del Derecho. Propiamente en lo concerniente al control de constitucionalidad, el Principio del Estado Social Derecho resulta útil como parámetro de validez normativa, criterio hermenéutico e instrumento funcional integrador del ordenamiento jurídico” (Res. 13205 de las 15:13 horas del 27 de septiembre del 2005). V.- Sobre el tope al monto de la jubilación. Lo primero que debe advertirse es que la existencia de un tope al monto de la jubilación no es por sí mismo inconstitucional, dado que en materia de seguridad social la solidaridad en el sostenimiento del fondo que respalda las erogaciones de quienes se benefician del mismo, es vital para que todos los que contribuyen al régimen de jubilación puedan seguir beneficiándose de ese derecho, dado que los recursos no son ilimitados. Al fijar el tope el legislador puede escoger uno o varios parámetros con diferentes valores o ponderaciones, que deberán procurar el objetivo por el cual se impone aquél límite al beneficio. Por consiguiente, el parámetro que se utilice puede referirse a elementos endógenos o exógenos al propio régimen. No obstante, sí resulta indispensable que el procedimiento seguido para la escogencia de estos parámetros, responda a los principios constitucionales de razonabilidad y proporcionalidad.(…) Este Tribunal anteriormente ha señalado que el principio de razonabilidad, surge del llamado "debido proceso substantivo", es decir, que los actos públicos deben contener un substrato de justicia intrínseca. Cuando de restricción a determinados derechos se trata, esta regla impone el deber de que dicha limitación se encuentre justificada, por una razón de peso suficiente para legitimar su contradicción con el principio general de igualdad. Lo anterior, por cuanto un acto limitativo de derechos es razonable cuando cumple con una triple condición: debe ser necesario, idóneo y proporcional. La necesidad de una medida hace directa referencia a la existencia de una base fáctica que haga preciso proteger algún bien o conjunto de bienes de la colectividad - o de un determinado grupo - mediante la adopción de una medida de diferenciación. Es decir, que si dicha actuación no es realizada, importantes intereses públicos van a ser lesionados. Si la limitación no es necesaria, tampoco podrá ser considerada como razonable, y por ende constitucionalmente válida. La idoneidad, por su parte, importa un juicio referente a si el tipo de restricción a ser adoptado cumple o no con la finalidad de satisfacer la necesidad detectada. La idoneidad de la medida nos indicaría que pueden existir otros mecanismos que en mejor manera solucionen la necesidad existente, pudiendo algunos de ellos cumplir con la finalidad propuesta sin restringir el disfrute del derecho en cuestión. Por su parte, la proporcionalidad nos remite a un juicio de necesaria comparación entre la finalidad perseguida por el acto y el tipo de restricción que se impone o pretende imponer, de manera que la limitación no sea de entidad marcadamente superior al beneficio que con ella se pretende obtener en beneficio de la colectividad. De los dos últimos elementos, podría decirse que el primero se basa en un juicio cualitativo, en cuanto que el segundo parte de una comparación cuantitativa de los dos objetos analizados. En el presente caso, el legislador optó por establecer un tope como una medida de previsión social, la cual puede considerarse como válida y necesaria, según lo ya expuesto, para garantizar los fondos del sistema de pensiones sustentado en el principio de solidaridad social…”. Siguiendo esta línea de ideas, el derecho a una pensión o jubilación, si bien es cierto resguarda un carácter constitucional, también lo es que éste no puede ser irrestricto, tal y como reiteradamente se ha señalado, pues en determinado momento, puede variar ante las diferentes circunstancias que se presenten en la sociedad, incluso, encontramos en el Derecho Comparado doctrina que es conteste con esta tesitura legal, por lo que consideramos importante citar el fallo del Tribunal Constitucional Español, que en su sentencia número 134/1987 señaló lo siguiente: “…el Tribunal declara la inexistencia de un derecho subjetivo a una pensión de cuantía determinada nacido del hecho de haber efectuado una determinada cotización, niega que la imposición de topes máximos afecte al concepto de suficiencia. Define el concepto de pensión adecuada atendiendo al sistema en su globalidad, sin olvidar que se trata de administrar recursos económicos limitados y entiende que la no admisión de los topes máximos implica la negación del principio de solidaridad. Además considera, de forma implícita, que la irregresividad debe predicarse del sistema en su conjunto (una minoración global del nivel de protección) y no parcialmente. Asimismo adopta una concepción amplia de las leyes presupuestarias como ‘vehículo de dirección y orientación de la política económica, que corresponde al Gobierno”. (GARCÍA VALVERDE, María D., Comentario Sistemático a la Legislación Reguladora de las Pensiones, Granada, España, Editorial COMARES, 2004, p. 808). Asimismo, con esta contribución se están protegiendo, además del Principio Pro Fondo, otros principios de rango constitucional, como lo son la solidaridad, la justicia social y la equidad, pues la finalidad o necesidad de aplicar esta figura legal, es precisamente proteger los regímenes de pensión ante la realidad social y económica existente en el país. Lo anterior, porque en materia de seguridad social el pilar fundamental del sostenimiento del fondo que respalda las erogaciones de los que se benefician del régimen es la solidaridad, esto a fin de que todas las personas que contribuyen al régimen, se puedan beneficiar de ese derecho fundamental. De tal manera, resulta imprescindible establecer un equilibrio financiero que garantice la solidez del fondo y para ello deben imponerse una serie de límites que garanticen su solidez. Asimismo, considérese que el Estado en cumplimiento de sus obligaciones, debe tomar en cuenta las necesidades tanto de las personas ya pensionadas, como de las que lo serán a futuro, procurando también su resguardo. Así las cosas, de conformidad con los fundamentos de hecho y derecho expuestos, queda evidenciado que con lo establecido en la Ley número 9796 citada, este Despacho, dentro de sus competencias, ha actuado de conformidad, ya que no se está infringiendo normativa legal ni constitucional alguna. A la luz de lo expuesto, es importante mencionar que, los numerales 9 y 11 de la Constitución Política, establecen que la Administración Pública deberá ejercer de forma exclusiva y excluyente, únicamente las competencias que le son otorgadas por ley, de manera tal que le resulta imposible desplegar actuación alguna que no se encuentra amparada en la ley. Aunado a ello, con respecto al tema específico de la rendición de cuentas, el artículo 11 de la Constitución Política citado, indica: “La Administración Pública en sentido amplio, estará sometida a un procedimiento de evaluación de resultados y rendición de cuentas, con la consecuente responsabilidad personal para los funcionarios en el cumplimiento de sus deberes. La ley señalará los medios para que este control de resultados y rendición de cuentas opere como un sistema que cubra todas las instituciones públicas.” (El subrayado no es del original) viii. No confiscatoriedad. Por último, se señala en la presente acción que el artículo 3 de la ley impugnada habla de que crea una contribución, esta contribución al ser una carga impositiva sobre el monto de la jubilación tienen naturaleza fiscal y por su estructura tiene contenido de confiscatoriedad en el patrimonio de las personas servidoras judiciales jubiladas y de quienes se jubilarán. Este Despacho desea expresar que con la decisión del Poder Ejecutivo de establecer un monto menor exento del pago de la Contribución especial solidaria y redistributiva para los distintos regímenes de pensiones que atañe la Ley N°9697, en particular para el Régimen de Pensiones del Poder Judicial, en realidad no está cercenando los derechos de las personas pensionadas, ni tampoco se les ha transgredido o limitado el nivel de vida; ya que la formulación y aprobación de la Ley para Rediseñar y Redistribuir los Recursos de la Contribución Solidaria responde a la promoción del bienestar común en el Estado Democrático de Derecho, como parte del mandato constitucional consignado en el artículo 50 del texto fundamental, toda vez que se busca abordar la atención de la pobreza extrema y contribuir con la erradicación de la desigualdad en los beneficios sociales de las pensiones. (Véase la página web: https://www.elpais.cr/2020/04/30/presidente-alvarado-defiende-fijacion-de-tope-a-pensiones-de-lujo/) Además, la implementación de un monto menor que se encuentre exento del pago de la Contribución especial solidaria y redistributiva respeta lo estipulado en los convenios 102 y 128 de la Organización Internacional del Trabajo (OIT), al estarse protegiendo principios como los de justicia social y equidad; dado que la finalidad de emplear esta figura legal es precisamente la búsqueda de un equilibrio entre los ingresos que se reciben por concepto de cotizaciones y los egresos que implican el pago de los beneficios jubilatorios, así como la sostenibilidad del Régimen. En virtud de lo anterior, si bien es cierto la Constitución Política establece la necesaria imposición de un sistema de rendición de cuentas, éste resulta aplicable a la Administración Pública en sentido amplio, además de que dicho sistema debe ser desarrollado por la ley, mientras que, en sentido específico, los funcionarios públicos serán sujetos de responsabilidad con respecto al cumplimiento de sus deberes. Aunado a lo anterior, debe considerarse que la Administración, en estricto apego al principio de legalidad, consagrado en el artículo 11 tanto de la Constitución Política como de la Ley General de la Administración Pública, se encuentra en la obligación de aplicar lo establecido en la Ley 9796, por lo que no es posible dar mérito a los alegatos planteados por el actor, toda vez que la Administración actúa en estricto apego a la normativa constitucional y legal que regula la materia. Petitoria Al amparo de los elementos de derecho expuestos, respetuosamente se solicita: a) Declarar sin lugar la acción de inconstitucionalidad interpuesta por los señores Johnny Mejías Ávila, en su condición de Presidente del Consejo de Administración, y Eric Enrique Loría Campos, en su condición de Gerente General con facultades de apoderado generalísimo sin límite de suma de Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L. contra los artículos 1, 2, inciso d); 3; 4, inciso b); 5 y 7; todos de la Ley número 9796 de fecha 5 de diciembre de 2019, denominada “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, mediante la cual se reforma el inciso a) del artículo 236 bis de la Ley Orgánica del Poder Judicial. b) Eximir a este Despacho del pago cualquier monto por concepto de costas personales y/o procesales, así como daños y perjuicios (…)”.

15.- Por escrito aportado a la Sala el 4 de junio de 2020, Linda Casas Zamora, en su condición de jubilada del Poder Judicial, solicita se le tenga como coadyuvante activa de este proceso.

16.- Por escrito aportado a la Sala el 5 de junio de 2020, Laura María León Orozco y Denis Alberto Villalta Canales, en su condición de jubilados del Poder Judicial, solicitan que se les tenga como coadyuvantes activos.

17.- Por escrito aportado a la Sala el 7 de junio de 2020, Jorge Luis Morales García, en su condición de Secretario General del Sindicato de la Judicatura, solicita que se le tenga como coadyuvante activo del presente proceso.

18.- Por escritos aportados a la Sala los días 7 y 8 de junio de 2020, José Gustavo Zelaya y Marco Antonio Cordero Costo, en su condición de jubilados del Poder Judicial, solicitan que se les tenga como coadyuvantes activos del presente proceso.

19.- Por escrito aportado a la Sala el 8 de junio de 2020, Magda Díaz Bolaños, en su condición de Presidente de la Asociación Costarricense de Juezas, solicita se le tenga como coadyuvante activa de este proceso.

20.- Por escrito agregado a los autos el 8 de junio de 2020, Damaris Molina González, en su condición de Presidenta de la Asociación de Jubilados y Pensionados del Poder Judicial, solicita se le tenga como coadyuvante activa de este proceso de constitucionalidad. Este documento fue firmado por el Lic. Dennis Rubie Castro.

21.- Por resolución de las 16:28 hrs. de 11 de junio de 2020, la Presidencia de la Sala dispuso lo siguiente: “(…) De previo a resolver las solicitudes de coadyuvancia, se previene a la gestionante MAGDA DÍAZ BOLAÑOS, cédula de identidad 1-0716-0898, que deberá aportar la personería jurídica vigente de la ASOCIACIÓN COSTARRICENSE DE JUEZAS. De otra parte, se le previene a la gestionante DAMARIS MOLINA GONZÁLEZ, cédula de identidad 2-0269-0487, en su condición de Presidenta de la ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, que aclare lo siguiente: 1) si el abogado firmante DENNIS RUBIE CASTRO, acude en su condición de autenticante de la gestión de coadyuvancia o, a su vez, como coadyuvante en esta acción, de ser así, deberá indicar cuál es su legitimación para acudir como coadyuvante. 2) si las personas incluidas en la lista del Anexo 1 son miembros de la Asociación de Jubilados y Pensionados del Poder Judicial. Lo anterior, deberán cumplirlo dentro del plazo de TRES DÍAS, contado a partir del siguiente a la notificación de esta resolución y bajo apercibimiento de denegarle el trámite a sus peticiones, en caso de incumplimiento (artículos 80 y 83 de la Ley de la Jurisdicción Constitucional). Notifíquese (...)”.

22.- Por escrito aportado a los autos el 12 de junio de 2020, Magda Díaz Bolaños, en su condición de Presidenta de la Asociación Costarricense de Juezas, aporta la certificación de personería vigente de su representada.

23.- Mediante memorial aportado a la Sala el 16 de junio de 2020, Damaris Molina González, en su condición de Presidenta de la Asociación de Pensionados y Jubilados del Poder Judicial y Dennis Rubie Castro, en su condición de autenticante de Molina González y gestionante de la coadyuvancia, responden la prevención girada mediante resolución de las 16:28 hrs. de 11 de junio de 2020. Aclara Molina González que el señor Rubie Castro acude como autenticante, en lo que se refiere a su intervención como Presidenta de la asociación. También señala, en relación a la consulta si las personas que están en la lista del Anexo 1 son miembros de la Asociación de Jubilados y Pensionados del Poder Judicial, que muchos de ellos lo son “(…) pero hay otros miembros de la Asociación que no están en esta lista, pero que gozan de la representación de nuestra asociación, aún sin aparecer en el escrito de coadyuvancia (…)”. Por su parte, Rubie Castro, confirma que su firma en el escrito de coadyuvancia es en doble carácter, sea, de autenticante de la señora Molina González, Presidenta de la Asociación de Pensionados y Jubilados del Poder Judicial y en calidad, a su vez, de abogado gestionante de la coadyuvancia de todas y de cada una de las personas que se encuentran indicadas en la lista del Anexo 1. Sostiene que todas esas personas son jubiladas del Poder Judicial y, por ende, tienen un interés legítimo en el proceso.

24.- Mediante resolución de las 09:18 hrs. de 23 de junio de 2020, la Presidencia de la Sala dispuso lo siguiente: “(…) Vistos los escritos presentados en la Secretaría de esta Sala a las 14:59 horas del 15 de mayo de 2020, por HÉCTOR LUIS RUÍZ SALAS, cédula de identidad 0502230397; a las 11:20 horas del 1° de junio de 2020, por LUIS ANTONIO CHANG PIZARRO, cédula de identidad 0601540414; a las 11:23 horas del 1° de junio de 2020, por SILENNE CASTRO VINDAS, cédula de identidad 0104770967; a las 12:19 horas del 2 de junio de 2020, por MARIA DEL PILAR VARGAS ACOSTA, cédula de identidad 0203170792; a las 15:43 horas del 2 de junio de 2020, por RODRIGO MONTENEGRO TREJOS, cédula de identidad 4- 0075-0723, ANABELLE LEÓN FEOLI, cédula de identidad 1-0466-0883, ANA VIRGINIA CALZADA MIRANDA, cédula de identidad 1-0434-0791, LUIS FERNANDO SOLANO CARRERA, cédula de identidad 1-0455-0325, EVA MARÍA CAMACHO VARGAS, cédula de identidad 4-0113-0745, ROLANDO VEGA ROBERT, cédula de identidad 1-0503-0990, ADRIÁN VARGAS BENAVIDES, cédula de identidad 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, cédula de identidad 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, cédula de identidad 6-0106-0565, LUPITA CHAVES CERVANTES, cédula de identidad 1-0596-0893, MILENA CONEJO AGUILAR, cédula de identidad 1-0624-0446, FRANCISCO SEGURA MONTERO, cédula de identidad 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, cédula de identidad 1-0288-0592, RAFAEL SANABRIA ROJAS, cédula de identidad 3-0249-0099 y ALFREDO JONES LEÓN, cédula de identidad 1-0467-05; de las 17:49 horas del 7 de junio de 2020, por JORGE LUIS MORALES GARCÍA, cédula de identidad 2-399-222, en su condición de Secretario General del SINDICATO DE LA JUDICATURA, personería jurídica 3-011-729381; a las 15:26 horas del 8 de junio de 2020, por MAGDA DÍAZ BOLAÑOS, cédula de identidad 1-0716-0898, en su condición de presidenta de la ASOCIACIÓN COSTARRICENSE DE JUEZAS; a las 11:50 horas del 4 de junio de 2020, por LINDA MARIA CASAS ZAMORA, cédula de identidad 0900640769; a las 11:37 horas del 5 de junio de 2020, por LAURA MARÍA LEÓN OROZCO, cédula de identidad 106100476, y DENIS ALBERTO VILLALTA CANALES, cédula 601000361; a las 09:49 horas del 7 de junio de 2020, por JOSÉ GUSTAVO ZELAYA MUÑOZ, cédula de identidad 0203140196; y a las 09:36 horas del 8 de junio de 2020, por MARCO ANTONIO CORDERO COTO, cédula de identidad 0302250494. De previo a resolver las solicitudes de coadyuvancia formuladas en esta acción, se previene a las mencionadas personas gestionantes, que deben cancelar y agregar el timbre del Colegio de Abogados por la suma de doscientos setenta y cinco colones -por cada uno de los firmantes-, correspondiente a la autenticación del escrito de interposición de la coadyuvancia. En el caso de los firmantes que no son abogados y cuyo escrito carece de autenticación, deberán, además, aportar la autenticación correspondiente. Lo anterior, dentro del TERCER DÍA contado a partir del siguiente a la notificación de esta resolución y bajo apercibimiento de denegarle el trámite a la acción en caso de incumplimiento, de conformidad con el artículo 4 de la Ley n° 3245 del 3 de diciembre de 1963 y 80 de la Ley de la Jurisdicción Constitucional. Notifíquese (…)”.

25.- Por resolución de las 09:41 hrs. de 23 de junio de 2020, el Presidente de la Sala dispuso lo siguiente: “(…) De previo a resolver lo que proceda en la ACCIÓN DE INCONSTITUCIONALIDAD que se tramita en el expediente número 20- 007715-0007-CO, solicítese al Oficial Mayor Electoral, remitir a esta Sala certificación de defunción de OSCAR LUIS FONSECA MONTOYA, cédula de identidad 4-0080-0442, documento que deberá remitirse a esta Sala dentro del plazo de TRES DIAS contado a partir de la recepción de este proveído, bajo apercibimiento de incurrir en responsabilidad por desobediencia a la autoridad si no lo hiciere. Expídase el oficio que se interesa (…)”.

26.- Por escritos aportados a la Sala el 23 de junio de 2020, Jorge Luis Morales García, en su condición de Secretario General del Sindicato de la Judicatura y Magda Díaz Bolaños, en su condición de Presidente de la Asociación Costarricense de Juezas, indican que aportan el timbre del Colegio de Abogadas y Abogados de Costa Rica, según la prevención girada por resolución de las 09:18 hrs. de 23 de junio de 2020.

27.- Por escritos aportados a la Sala el 24 de junio de 2020, Luis Antonio Chang Pizarro y Silenne Castro Vindas, indican que aportaron el timbre del Colegio de Abogadas y Abogados de Costa Rica desde el 1° de junio de ese mismo año.

28.- Mediante escritos aportados a la Sala el 24 de junio de 2020, Denis Villalta Corrales y María del Pilar Vargas Acosta, indican que aportan el timbre del Colegio de Abogadas y Abogados de Costa Rica señalado en la prevención girada por resolución de las 09:18 hrs. de 23 de junio de 2020.

29.- Mediante escritos aportados a la Sala el 25 de junio de 2020, Linda Casas Zamora, José Gustavo Zelaya Muñoz y Marco Antonio Cordero Coto, indican que aportan el timbre del Colegio de Abogadas y Abogados de Costa Rica señalado en la prevención girada por resolución de las 09:18 hrs. de 23 de junio de 2020.

30.- El 25 de junio de 2020, se aporta a los autos el certificado de defunción del señor Oscar Luis Fonseca Montoya.

31.- Por escrito aportado a la Sala el 26 de junio de 2020, Milena Conejo Aguilar (en su doble condición de coadyuvante y autenticante de las firmas del resto de coadyuvantes presentados el 2 de junio de 2020, a saber: Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda, Luis Fernando Solano Carrera, Eva María Camacho Vargas, Rolando Vega Robert, Adrián Vargas Benavides, Magna Lorena Pereira Villalobos, Alejandro López Ma Adam, Lupita Chaves Cervantes, Francisco Segura Montero, Álvaro Fernández Silva, Oscar Luis Fonseca Montoya, Rafael Sanabria Rojas y Alfredo Jones León -este último no abogado-), señala que ratifica que la razón “son auténticas” y su firma corresponde a la autenticación de las firmas de los coadyuvantes. Aclara que a folio 23 del escrito presentado aparece el pago de tasación que corresponde al timbre del Colegio de Abogados de Costa Rica por la autenticación de las firmas de los coadyuvantes. Menciona que aporta un nuevo pago de tasación por cada uno de los dieciséis coadyuvantes.

32.- Mediante escritos aportados a la Sala el 29 de junio de 2020, Laura María León Orozco y Dennis Villalta Canales, indican que aportan el timbre del Colegio de Abogadas y Abogados de Costa Rica señalado en la prevención girada por resolución de las 09:18 hrs. de 23 de junio de 2020.

33.- El 29 de junio de 2020, la Magistrada Garro Vargas presenta solicitud de inhibitoria para conocer el presente proceso de constitucionalidad. Lo anterior, en virtud que su tía materna es pensionada del régimen de jubilación del Poder Judicial y se ve afectada con la normativa bajo análisis.

34.- Mediante escrito aportado a la Sala el 30 de junio de 2020, Héctor Luis Ruiz Salas indica que aporta el timbre del Colegio de Abogadas y Abogados de Costa Rica señalado en la prevención girada por resolución de las 09:18 hrs. de 23 de junio de 2020.

35.- Mediante resolución de las 14:08 hrs. de 30 de junio de 2020, la Presidencia de la Sala dispuso lo siguiente: “(…) Visto los escritos presentados en la Secretaría de esta Sala a las 14:59 horas del 15 de mayo de 2020, por HÉCTOR LUIS RUÍZ SALAS, cédula de identidad 0502230397; a las 13:30 horas del 18 de mayo de 2020, por JOSÉ MARCELINO SILVA SILVA, cédula de identidad 0502160858; a las 12:07 horas del 25 de mayo de 2020, por GUSTAVO ADOLFO DE LA TRINIDAD RAMÍREZ REDONDO, cédula de identidad 0106700103; a las 11:20 horas del 1° de junio de 2020, por LUIS ANTONIO CHANG PIZARRO, cédula de identidad 0601540414; a las 11:23 horas del 1° de junio de 2020, por SILENNE CASTRO VINDAS, cédula de identidad 0104770967; a las 12:19 horas del 2 de junio de 2020, por MARIA DEL PILAR VARGAS ACOSTA, cédula de identidad 0203170792; a las 15:43 horas del 2 de junio de 2020, por RODRIGO MONTENEGRO TREJOS, cédula de identidad 4-0075-0723, ANABELLE LEÓN FEOLI, cédula de identidad 1-0466- 0883, ANA VIRGINIA CALZADA MIRANDA, cédula de identidad 1-0434- 0791, LUIS FERNANDO SOLANO CARRERA, cédula de identidad 1-0455- 0325, EVA MARÍA CAMACHO VARGAS, cédula de identidad 4-0113-0745, ROLANDO VEGA ROBERT, cédula de identidad 1-0503-0990, ADRIÁN VARGAS BENAVIDES, cédula de identidad 4-0105-0889, MAGDA LORENA PEREIRA VILLALOBOS, cédula de identidad 4-0105-0076, ALEJANDRO LÓPEZ MC ADAM, cédula de identidad 6-0106-0565, LUPITA CHAVES CERVANTES, cédula de identidad 1-0596-0893, MILENA CONEJO AGUILAR cédula de identidad 1-0624-0446, FRANCISCO SEGURA MONTERO, cédula de identidad 1-0546-0928, ÁLVARO FERNÁNDEZ SILVA, cédula de identidad 1- 0288-0592, OSCAR LUIS FONSECA MONTOYA, cédula de identidad 4-0080- 0442, RAFAEL SANABRIA ROJAS, cédula de identidad 3-0249-0099 y ALFREDO JONES LEÓN, cédula de identidad 1-0467-055; de las 17:49 horas del 7 de junio de 2020, por JORGE LUIS MORALES GARCÍA, cédula de identidad 2-399-222, en su condición de Secretario General del SINDICATO DE LA JUDICATURA, personería jurídica 3-011-729381; a las 15:26 horas del 8 de junio de 2020, por MAGDA DÍAZ BOLAÑOS, cédula de identidad 1-0716-0898, en su condición de presidenta de la ASOCIACIÓN COSTARRICENSE DE JUEZAS, personería jurídica n° 3-002-130811; a las 11:50 horas del 4 de junio de 2020, por LINDA MARIA CASAS ZAMORA, cédula de identidad 0900640769; a las 12:10 horas del 4 de junio de 2020, por DAMARIS MOLINA GONZÁLEZ, cédula de identidad 2-0269-0487, en su condición de Presidenta de la ASOCIACIÓN DE JUBILADOS Y PENSIONADOS DEL PODER JUDICIAL, personería jurídica 3- 002-071245; a las 11:37 horas del 5 de junio de 2020, por LAURA MARÍA LEÓN OROZCO, cédula de identidad 106100476, y DENIS ALBERTO VILLALTA CANALES, cédula 601000361; a las 09:49 horas del 7 de junio de 2020, por JOSÉ GUSTAVO ZELAYA MUÑOZ, cédula de identidad 0203140196; y a las 09:36 horas del 8 de junio de 2020, por MARCO ANTONIO CORDERO COTO, cédula de identidad 0302250494; quienes solicitan ser tenidos como coadyuvantes activos en esta acción. Se resuelve: El artículo 83 de la Ley de Jurisdicción Constitucional señala que en los quince días posteriores a la primera publicación del aviso a que alude el párrafo segundo del artículo 81, las partes que figuren en los asuntos pendientes a la fecha de la interposición de la acción, o aquellos con interés legítimo, podrán apersonarse dentro de ésta, a fin de coadyuvar en las alegaciones que pudieren justificar su procedencia o improcedencia, o para ampliar, en su caso, los motivos de inconstitucionalidad en relación con el asunto que les interesa. En el caso concreto, todas las personas gestionantes mencionadas anteriormente se apersonaron entre el 15 de mayo y el 8 de junio de 2020 y solicitaron ser tenidos como coadyuvantes activos por considerar que ostentan interés legítimo en este asunto. En consecuencia y siendo que la primera publicación del aviso en el Boletín Judicial se dio el 18 de mayo del 2020, lo procedente es tenerlos como coadyuvantes activos dentro de este asunto. Esto, a excepción de OSCAR LUIS FONSECA MONTOYA, cédula de identidad 4-0080-0442, dado que, según certificación del Registro Civil aportada a los autos, falleció el 12 de junio de 2020, por lo que en su caso se tiene por fenecida la acción procesal. Se debe aclarar que respecto a la gestión de coadyuvancia de Damaris Molina González, se admite en su condición de presidenta y representante judicial de la Asociación de Pensionados y Jubilados del Poder Judicial y, por ende, en representación de los miembros de dicha asociación, no así la coadyuvancia de Dennis Rubie Castro, abogado autenticante y quien manifestó acudir a ante esta Sala en condición de “abogado gestionante de la coadyuvancia de todas y cada una de las personas que se encuentran indicadas con sus respectivos nombres e identidades en la lista del Anexo I” (escrito recibido a las 14:09 horas del 16 de junio de 2020), toda vez que no aportó un poder judicial que lo legitime para coadyuvar en nombre de las personas enlistadas. Se advierte a los interesados que -en cuanto a los efectos de la coadyuvancia-, al no ser el coadyuvante parte principal del proceso, no resultaran directamente perjudicados o beneficiados por la sentencia, es decir, la eficacia de la sentencia no alcanza al coadyuvante de manera directa e inmediata, ni le afecta cosa juzgada, no le alcanzan, tampoco, los efectos inmediatos de ejecución de la sentencia, pues a través de la coadyuvancia no se podrá obligar a la autoridad jurisdiccional a dictar una resolución a su favor, por no haber sido parte principal en el proceso. Lo que si puede afectarle, pero no por su condición de coadyuvante, sino como a cualquiera, es el efecto erga omnes del pronunciamiento. La sentencia en materia constitucional, no beneficia particularmente a nadie, ni siquiera al actor; es en el juicio previo donde esto puede ser reconocido. Se tienen por contestadas las audiencias conferidas al procurador General de la República, al ministro de Hacienda, a la ministra de Planificación y Política Económica y al Presidente de la Corte Suprema de Justicia, en la resolución de las 11:37 horas del 12 de mayo de 2020. Sobre la solicitud de medida cautelar de suspensión: deberán estarse los coadyuvantes solicitantes a lo resuelto por esta Sala en la resolución de las 11:37 horas del 12 de mayo de 2020, en cuanto a los efectos de esta acción: “(…) en los casos de acción directa (como ocurre en la presente acción), no opera el efecto suspensivo de la interposición (véanse votos No. 537-91, 2019-11633, así como resoluciones dictadas en los expedientes números 2019-11022, 19-006416 y 19-015543 del Tribunal Constitucional)”. Listos los autos, se turna esta acción de inconstitucionalidad al Magistrado Jorge Araya García, a quien por turno corresponde el estudio de fondo de la misma (…)”.

36.- Mediante resolución de las 14:47 hrs. de 23 de septiembre de 2020, el Presidente de la Sala dispuso aceptar la solicitud de inhibitoria formulada por la Magistrada Garro Vargas.

37.- El 25 de septiembre de 2020, el Magistrado Suplente Ronald Salazar Murillo presenta solicitud de inhibitoria para conocer el presente proceso de constitucionalidad. Lo anterior, por ser jubilado del Poder Judicial.

38.- Por resolución de las 08:49 hrs. de 30 de septiembre de 2020, el Presidente de la Sala dispuso aceptar la solicitud de inhibitoria formulada por el Magistrado Salazar Murillo.

39.- El 1° de octubre de 2020 se realiza el sorteo No. 8371 en la Oficina de Presidencia de la Corte y fue seleccionado el Magistrado Suplente Hubert Fernández Arguello, en sustitución de la Magistrada Garro Vargas, para conocer el presente asunto.

40.- Por escrito aportado a la Sala el 18 de octubre de 2020, José H. González Fernández, pensionado del Magisterio Nacional, solicita que se le tenga como coadyuvante activo de este proceso. Solicita que se declaren inconstitucionales los artículos 70 y 71 de la Ley de Pensiones y Jubilaciones del Magisterio Nacional y la Ley No. 9796.

41.- El 20 de octubre de 2020, el Magistrado Fernando Cruz Castro presenta solicitud de inhibitoria para conocer el presente proceso de constitucionalidad. Lo anterior, por haber rendido informe en este asunto, en calidad de Presidente de la Corte Suprema de Justicia.

42.- Por resolución de las 12:33 hrs. de 22 de octubre de 2020, el Presidente de la Sala dispuso aceptar la solicitud de inhibitoria formulada por el Magistrado Cruz Castro y lo tuvo por separado del conocimiento de este asunto.

43.- Por escrito agregado a los autos el 26 de octubre de 2020, se consigna el sorteo No. 8454 realizado en la Oficina de Presidencia de la Corte, mediante el cual fue seleccionada la Magistrada Suplente Marta Esquivel Rodríguez, en sustitución del Magistrado Cruz Castro, para conocer el presente asunto.

44.- Por escrito aportado a la Sala el 30 de octubre de 2020, Danilo Eduardo Ugalde Vargas, quien dice acudir en condición de apoderado especial judicial de Rodrigo Montenegro Trejos, Anabelle León Feoli, Ana Virginia Calzada Miranda y otros (quienes solicitaron en junio de 2020 se les tuviera como coadyuvantes activos de este proceso), adjunta una serie de pruebas para mejor resolver.

45.- Por escrito agregado a los autos el 22 de febrero de 2021, se adjunta una copia (sin firmar) del escrito de interposición de la acción de inconstitucionalidad presentada el 18 de febrero de ese mismo año por Víctor Rodríguez Rescia a favor de varios interesados y en contra de lo dispuesto en la Ley No. 9796 y la Ley No. 9635, la cual, a su vez, se tramita conforme el expediente No. 21-003071-000-CO.

46.- Por escrito aportado a la Sala el 7 de junio de 2021, Jorge Luis Morales García, en su condición de Secretario General del Sindicato de la Judicatura, solicita que se señale a la brevedad posible la comparecencia oral, conforme lo dispuesto en el artículo 10 de la Ley de la Jurisdicción Constitucional. Estima que dicha audiencia es obligatoria y no facultativa.

47.- Por escrito aportado a la Sala el 1° de octubre de 2021, Eloy José Araya Paz, presentó gestión de pronto despacho.

48.- Mediante memorial aportado a la Sala el 7 de marzo de 2022, Antonio Ortega Vindas (quien interpuso un recurso de amparo relacionado con la normativa impugnada en este proceso), presenta gestión de pronto despacho.

49.- Por escritos aportados a la Sala los días 17 y 23 de junio de 2022, Erick Castro Zamora y Jessica Espinoza Cerdas (quienes presentaron recurso de amparo No. 20-010662-0007-CO relacionado con la normativa acá impugnada), formulan gestión de pronto despacho.

50.- Mediante memorial aportado a la Sala el 3 de noviembre de 2022, José H. González Fernández, pensionado del Magisterio Nacional, emite otras apreciaciones respecto al presente proceso.

51.- Por escrito de fecha 20 de febrero de 2023 (agregado a los autos el 22 de febrero de 2023), Jorge Steve Rodríguez Fernández, en su condición de Secretario General del Sindicato de la Judicatura, solicita se señale la comparecencia oral a la que hace referencia el ordinal 10 de la Ley de la Jurisdicción Constitucional. Estima que dicha audiencia es obligatoria y no facultativa.

52.- Por escrito agregado a los autos el 12 de julio de 2023, se consigna el sorteo No. 11431 realizado en la Oficina de Presidencia de la Corte, mediante el cual fue seleccionada la Magistrada Suplente Ana Cristina Fernández Acuña, en sustitución de la anteriormente nombrada Magistrada Esquivel Rodríguez (pues esta última, para entonces, ya no fungía como magistrada por haber concluido su período constitucional).

53.- Por escrito agregado a los autos el 12 de julio de 2023, se consigna el sorteo No. 11436 realizado en la Oficina de Presidencia de la Corte, mediante el cual fue seleccionado el Magistrado Suplente Jorge Isaac Solano Aguilar, en sustitución de la Magistrada Fernández Acuña (ya que esta última, para entonces, permanecía nombrada en la Sala). Respecto a esta designación, debe observarse también lo señalado en el resultando No. 62 de esta sentencia.

54.- Mediante la resolución interlocutoria No. 2023-17098 de las 13:00 hrs. de 12 de julio de 2023, la Sala rechazó la solicitud planteada por los Secretarios Generales del Sindicato de la Judicatura los días 7 de junio de 2021 y 20 de febrero de 2023, para que se señalara una comparecencia oral o audiencia de conclusiones respecto a lo planteado en esta acción de inconstitucionalidad. Asimismo, se dejó constando que los Magistrados Salazar Alvarado, Araya García, Fernández Arguello y Fernández Acuña son afiliados a COOPEJUDICIAL y se aclaró que esta situación no incide de manera alguna en el conocimiento de la acción.

55.- Por escrito de fecha 7 de agosto de 2023 (agregado a los autos el 8 de agosto de 2023), Jorge Steve Fernández Rodríguez, en su condición de Secretario General del Sindicato de la Judicatura, aduce que debe tenérseles como accionantes, solicita a la Sala el señalamiento de una comparecencia oral o audiencia de conclusiones y plantea gestión de pronto despacho.

56.- Mediante la resolución interlocutoria No. 2023-23500 de las 09:15 hrs. de 20 de septiembre de 2023, este Tribunal se pronunció sobre la gestión de 7 de agosto de 2023 formulada por Jorge Steve Fernández Rodríguez, en su condición de Secretario General del Sindicato de la Judicatura, y resolvió lo siguiente: “(…) I.- De previo. En el considerando I de la resolución nro. 2023017098 de las 13:00 horas del 12 de julio de 2023, los magistrados Salazar Alvarado, Araya García, Fernández Argüello y Garita Navarro, y la magistrada Fernández Acuña hacen constar que son afiliados de COOPEJUDICIAL-, al respecto, la Sala consigna que tal condición no incide de manera alguna en el conocimiento de esta acción. Relacionado con lo anterior, el magistrado Rueda Leal hace constar que su esposa es afiliada a esta cooperativa; al respecto, de igual forma se estima que tal condición no incide de manera alguna en el conocimiento de esta acción. II.- Sobre la gestión de coadyuvancia, las actuaciones procesales, y la solicitud del gestionante de ser tenido como accionante (…) De tal forma, resulta impropio aducir que por haber planteado en la coadyuvancia una “Ampliación de Motivos”, deba tenérsele como parte activa, actora o accionante, pues tal como se resolvió oportunamente, la intervención del Sindicato lo fue como coadyuvante activo en esta acción, y, según lo reiteradamente señalado, tal condición de coadyuvante le es insuficiente para el planteamiento de otro tipo de gestiones, como requerir, precisamente, que se tenga al Sindicato como accionante o parte actora en este proceso. III.- Sobre la solicitud de realización de vista o comparecencia oral. Determinándose que, de conformidad con lo estatuido en el artículo 83 de la Ley de la Jurisdicción Constitucional, las actuaciones que puede realizar una persona coadyuvante dentro de un proceso se encuentran limitadas a la presentación de los argumentos a favor o en contra de lo planteado por la persona accionante -así sea ampliaciones de argumentos-, se concluye, igualmente se carece de la posibilidad de hacer una formal o expresa solicitud de celebración de una comparecencia oral, vista o audiencia de conclusiones. En todo caso, debe hacerse notar, que la realización de una comparecencia oral o audiencia de conclusiones, por su propia naturaleza, es un aspecto procesal que corresponde determinar al Pleno de la Sala en el momento procesal en que así llegare a considerarse necesario, procedente u oportuno por parte del Tribunal, en atención a la tramitación y discusión que sobre la cuestión de constitucionalidad planteada corresponda, y de conformidad con lo señalado en el artículo 9 de la Ley de la Jurisdicción Constitucional y su aplicación en procesos de esta naturaleza -ver, entre muchas otras, sentencias números 4528-99 y 2021-11957-.IV.- Sobre la gestión de pronto despacho. Finalmente, en lo que concierne a la solicitud de pronto despacho, es importante hacer notar que la tramitación brindada hasta el momento a esta acción, obedece a razones objetivas, como es la complejidad del proceso -característica propia de una acción de inconstitucionalidad- y dada también la cantidad de gestiones presentadas, así como la trascendencia del eventual pronunciamiento de la Sala, lo que obliga a realizar un análisis profundo por parte de este órgano jurisdiccional de los elementos planteados a los autos. A lo anterior, debe agregarse el hecho de que el circulante de la jurisdicción constitucional para este año supera ya los 21 mil nuevos expedientes, lo que hace pensar que para finales de año se alcanzará la cifra más alta en la historia del Tribunal. Dicha situación genera una mayor carga de trabajo que incide directamente en los plazos de resolución de la Sala, tal y como estima el gestionante que ha sucedido en el caso concreto. V.- En definitiva, de conformidad con lo señalado en los considerandos precedentes, lo que corresponde es declarar que no ha lugar a las gestiones planteadas. Por tanto No ha lugar a las gestiones planteadas (…)”.

57.- Por escrito aportado a la Sala el 26 de febrero de 2024, Miguel Ángel García Martínez (quien presentó otros procesos suspendidos por la presente acción de inconstitucionalidad), formula gestión de pronto despacho.

58.- Por escrito aportado a la Sala el 9 de abril de 2024, Miguel Ángel García Martínez (quien presentó otros procesos suspendidos por la presente acción de inconstitucionalidad), reitera su gestión de pronto despacho.

59.- Mediante memorial aportado a la Sala el 11 de abril de 2024, Silvia Elena Arce Meneses, en su condición de Secretaria General del Sindicato de la Judicatura, presenta gestión de pronto despacho.

60.- Por escrito aportado a la Sala el 11 de abril de 2024, José H. González Fernández, pensionado del Magisterio Nacional, emite otras apreciaciones respecto al presente proceso.

61.- Por escrito aportado a la Sala el 23 de abril de 2024, Miguel Ángel García Martínez (quien presentó otros procesos suspendidos por la presente acción de inconstitucionalidad), reitera su gestión de pronto despacho.

62.- Mediante resolución de la Presidencia de la Sala, de las siete horas cincuenta minutos de 7 de mayo de 2024, se confirma que la magistrada Fernández Acuña es la designada para sustituir en esta acción al magistrado Cruz Castro, en virtud de la inhibitoria planteada por este último, según se indica en los resultandos 41, 42, 43 y 52 de esta sentencia. En esta resolución, de modo expreso, se señaló y explicó lo siguiente, respecto a esta designación: “(…) IV.- Tal y como consta en el expediente judicial, la magistrada Fernández Acuña salió electa para sustituir al magistrado Cruz Castro (supra resultando 4). El hecho de que para resolver una cuestión interlocutoria (supra resultando 7) se haya designado al magistrado Solano Aguilar (supra considerando 6) para sustituir al magistrado Cruz Castro a causa de que la magistrada Fernández Acuña integraba el Tribunal -en sustitución del magistrado Rueda Leal- (supra resultando 5), tal designación no tiene la consecuencia jurídica de desplazar a la magistrada Fernández Acuña, toda vez que la designación del magistrado Solano Aguilar lo fue para un caso ad-hoc. Posteriormente, y tal y como en derecho corresponde, la magistrada Fernández Acuña le correspondió resolver en este expediente otra cuestión interlocutoria (supra resultando 8). Ergo, al no existir ninguna causal que desplace a la magistrada Ana Cristina Fernández Acuña, lo que corresponde este que ella conozca y resuelta lo que en derecho corresponda en esta acción (…)”.

63.- Por memorial agregado al expediente el 20 de mayo de 2024, la Magistrada Hess Herrera presenta formal inhibitoria para conocer esta acción.

64.- Mediante resolución de la Presidencia de esta Sala, de las diez horas cuarenta y seis minutos de 20 de mayo de 2024, se acepta la inhibitoria formulada por la Magistrada Hess Herrera.

65.- Por memorial agregado al expediente el 21 de mayo de 2024, se acredita el sorteo realizado por la Presidencia de la Corte Suprema de Justicia, número 12342, por el cual se nombra al Magistrado Suplente Lara Gamboa, en sustitución de la Magistrada Hess Herrera.

66.- Mediante escritos agregados al expediente los días 31 de mayo y 10 de junio, todos de 2024, el señor Humberto González Fernández solicita la resolución de esta acción.

67.- Por escrito agregado al expediente el 21 de junio de 2024, el señor Humberto González Fernández se refiere al contenido de diversos aspectos relacionados con el conocimiento de esta acción.

68.- Por escritos aportados a la Sala los días 22, 23 y 30 de agosto, así como los días 1°, 4 y 9 de septiembre, todos de 2024, José Humberto González Fernández emite una serie adicional de apreciaciones relacionadas con este proceso.

69.- Por memorial agregado al expediente el 10 de setiembre de 2024, el magistrado suplente Lara Gamboa presenta inhibitoria para conocer esta acción.

70.- Mediante resolución de la Presidencia de esta Sala, de las siete horas treinta y tres minutos de 11 de setiembre de 2024, se acepta la inhibitoria formulada por el magistrado suplente Lara Gamboa.

71.- Por memorial agregado al expediente el 16 de setiembre de 2024, se acredita el sorteo realizado por la Presidencia de la Corte Suprema de Justicia, número 12.771, por el cual se nombra a la magistra suplente Pacheco Salazar, en sustitución del magistrado suplente Lara Gamboa.

72.- En la substanciación del proceso se han observado las prescripciones de ley.

Redacta el Magistrado Araya García; y,

Considerando:

I.- De previo. Los Magistrados Rueda Leal, Salazar Alvarado, Araya García y Fernández Argüello, así como la Magistrada Fernández Acuña, hacen constar que son afiliados a COOPEJUDICIAL R.L. Al respecto, la Sala consigna –tal y como se indicó en las resoluciones interlocutorias No. 2023-17098, de las 13:00 hrs. de 12 de julio de 2023, y No. 2023-23500, de las 09:15 hrs. de 20 de septiembre de 2023–, que dicha condición no incide de manera alguna en el conocimiento de esta acción.

ii- Sobre los presupuestos formales de admisibilidad de la acción de inconstitucionalidad. La acción de inconstitucionalidad es un proceso con requisitos técnicos específicos, que deben ser cumplidos a efecto de que la Sala logre, de forma válida, conocer el fondo de la impugnación. El artículo 75 de la Ley de la Jurisdicción Constitucional, estipula los presupuestos de admisibilidad de la acción de inconstitucionalidad; entre estos se exige la existencia de un asunto base o previo pendiente de resolver, sea en vía judicial, o en el procedimiento para agotar la vía administrativa, en que se haya invocado la inconstitucionalidad como medio razonable para amparar el derecho o interés que se considera infringido. Por su parte, en el párrafo segundo y tercero de la misma norma, se regula de forma excepcional los presupuestos en los cuales no se requiere el asunto previo, es decir, cuando por la naturaleza del asunto no exista una lesión individual y directa, o bien, se trate de la tutela de intereses difusos o colectivos, o cuando la interpone de manera directa el Contralor General de la República, el Procurador General de la República, el Fiscal General de la República y el Defensor de los Habitantes. Sobre la exigencia de un asunto pendiente de resolver, la Sala, mediante sentencia número 1995-4190, señaló que la acción 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”. Por tal razón, la exigencia de un asunto previo pendiente de resolver no configura un mero requisito de forma, pues no basta con la existencia de un asunto base, ni con la invocación de la inconstitucionalidad, pues resulta indispensable que la acción constituya un medio razonable para amparar el derecho o interés que se considera vulnerado, lo que significa, que las normas recurridas deben ser aplicables en el asunto base –ver, en similar sentido, Sentencias Nos. 1990-1668, 1993-408, 1994-798, 1994-3615, 1995-409, 1995-851,1995-4190 y 1996-791-. Por otra parte, es oportuno indicar que existen otros recaudos técnicos que deben cumplirse, como por ejemplo, la determinación explícita de las normas impugnadas debidamente motivadas, con referencia específica de los mandatos y principios constitucionales que se consideren infringidos, la autenticación mediante patrocinio letrado del escrito de interposición de la acción, la acreditación de las condiciones de legitimación -poderes y certificaciones-, así como la certificación literal del libelo de impugnación, los cuales, en caso de no ser aportadas por los accionantes, pueden ser prevenidos por la Presidencia de la Sala para su cumplimiento.

III.- LEGITIMACIÓN Y PROCEDENCIA DE LA PRESENTE ACCIÓN DE INCONSTITUCIONALIDAD. De conformidad con lo señalado en el anterior considerando, una de las excepciones para la interposición de una acción de inconstitucionalidad sin la existencia de un asunto previo donde se haya aducido la inconstitucionalidad que se pretende y que sirva como base para la interposición de la acción, lo es, precisamente la defensa de intereses colectivos, entendidos como los que atañen a una colectividad determinada, y, por tanto, también identificados como intereses corporativos o gremiales.

Sobre los intereses colectivos cuya defensa resulte legitimante para la interposición de una acción de inconstitucionalidad, en la Sentencia No. 2006-13323 de las 17:26 hrs. de 6 de septiembre de 2006, este Tribunal señaló:

“Considera este Tribunal que la acción es admisible en los términos previstos en el párrafo primero (sic) del artículo 75 de la Ley de la Jurisdicción Constitucional, toda vez que los accionantes alegan la defensa de intereses corporativos, relativos a los intereses de los agremiados de las asociaciones de las que representan, estas son la Asociación Cámara Nacional de Transportes, la Asociación Cámara Nacional de Transportistas de Servicios Especiales y Asociación Nacional de Transportistas de Turismo. En efecto, como lo ha reconocido con anterioridad este Tribunal (en sentencias número 6433-98, 7615-98, 0467-99, 1313-99, 1830-99, 2289-99, 2745-99, 6644-99, 7975-99, 0877-2000, 2856-2000, 5565-2000, 6973-2000, 7160-2000, y 2001-9677) los intereses corporativos son aquellos que se caracterizan "[...] por la representación y defensa de un núcleo de intereses pertenecientes a los miembros de la determinada colectividad o actividad común, y, en cuanto los representa y defiende, la Cámara actúa en favor de sus asociados, la colectividad de comerciantes. De manera que estamos frente a un interés de esa Cámara y, al mismo tiempo, de cada uno de sus miembros, de forma no individualizada, pero individualizable, lo que constituye un interés corporativo o que atañe a esa colectividad jurídicamente organizada, razón por la que esta acción es admisible en los términos del párrafo segundo del artículo 75 de la Ley de la Jurisdicción Constitucional.-" (Sentencia número 1631-91, de las quince horas con quince minutos del veintiuno de agosto de mil novecientos noventa y uno).

Es así como en estos casos, no resulta necesaria la existencia de un asunto pendiente (en la vía administrativa o jurisdiccional) como lo exige el párrafo primero del citado artículo 75 para acreditar la legitimación del accionante, pues por la misma esencia del asunto, se trata de la defensa de intereses corporativos. Considera la Sala que no resulta legítimo desconocer este tipo de interés, toda vez que ello implicaría desconocer una importante función de los entes corporativos, que han sido creados según los lineamientos de la ley, y en el caso de las Cámaras, colegios profesionales, asociaciones, o sindicatos implicaría desnaturalizar su función mediadora en lo que respecta a la defensa de los intereses de sus agremiados, función que ha sido reconocida como esencial de estos entes por la propia jurisprudencia de este Tribunal (…)”.

Por su parte, en la Sentencia No. 2020-20839 de las 09:20 hrs. de 28 de octubre de 2020, señaló la Sala:

“En cuanto a los intereses colectivos, que se mencionan brevemente en el escrito, es oportuno señalar que la Sala ha precisado que a través de la expresión "intereses que atañen a la colectividad en su conjunto", el legislador quiso referirse a la legitimación que ostenta una entidad corporativa, cuando actúa por intermedio de sus representantes en defensa de los derechos e intereses de las personas que conforman su base asociativa y siempre y cuando se trate del cuestionamiento de normas o disposiciones que incidan en aquel núcleo de derechos o intereses que constituye la razón de ser y el factor aglutinante de la agrupación. A partir de la sentencia 2006-9170 de las dieciséis horas treinta y seis minutos del veintiocho de junio del dos mil seis, este Tribunal retomó un criterio anterior, según el cual los entes corporativos están autorizados para solicitar en forma directa la declaratoria de inconstitucionalidad de una norma, cuando ésta afecte directamente la esfera de acción del ente y de sus integrantes, sin que tenga relevancia que la norma sea susceptible de afectar en forma directa los derechos de los agremiados (…)”.

De tal forma, al aducir la defensa de intereses colectivos, debe tratarse de manera directa de situaciones que afecten la esfera de derechos de quienes conforman la agrupación, colectivo, gremio o corporación, precisamente por ser partes integrantes de los mismos, o bien, los derechos que tal colectivo o agrupación pueda tener por sí mismo como ente de base corporativa. Es decir, no se trata de la posibilidad de aducir, por esta vía, la inconstitucionalidad de cualquier norma o acto general, sino solamente de aquellos que incidan en dicha esfera de derechos.

En el caso bajo estudio, esta acción es interpuesta por el Presidente del Consejo de Administración y por el Gerente General, ambos de la Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. (COOPEJUDICIAL R.L.), la cual es una organización corporativa, aduciéndose la defensa de los derechos de las personas asociadas (activas y jubiladas), a esa agrupación, en virtud que, en su criterio, la normativa en cuestión (artículos 1°, 2, inciso d; 3; 4, inciso b; 5 y 7; todos de la Ley No. 9796 de 5 de diciembre de 2019, denominada “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, y lo dispuesto en el artículo 236 bis, inciso a, de la Ley Orgánica del Poder Judicial No. 8), les atañe y les afecta directamente. Visto lo anterior, esta Sala considera que los accionantes ostentan legitimación suficiente para la interposición de esta acción (véase, lo dispuesto por la Sala en el voto No. 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021; oportunidad en la cual, al conocerse un asunto similar, se tuvo por admitida una acción de inconstitucionalidad formulada también por COOOPEJUDICIAL R.L.).

IV.- Sobre las coadyuvancias. El artículo 83 de la Ley de la Jurisdicción Constitucional establece que en los quince días posteriores a la primera publicación del aviso a que alude el párrafo segundo del numeral 81, las partes que figuren con asuntos pendientes a la fecha de interposición de la acción, o aquellos que cuenten con un interés legítimo en la definición del objeto en disputa, podrán apersonarse para coadyuvar con cualquiera de las dos posiciones objeto de la discusión; en el caso de las acciones de inconstitucionalidad, básicamente el coadyuvante acude a defender la pretensión anulatoria del actor o a respaldar la validez del acto impugnado. En este caso, mediante resolución de la Presidencia de esta Sala, dictada a las 14:08 hrs. de 30 de junio de 2020, se resolvió lo atinente a las solicitudes de coadyuvancia activas presentadas dentro del plazo señalado en el citado numeral 83 de la Ley de la Jurisdicción Constitucional. En aquella ocasión se tuvo como coadyuvantes activos a Héctor Luis Ruiz Salaz, a José Marcelino Silva Silva, a Gustavo Adolfo de la Trinidad Ramírez Redondo, a Luis Antonio Chang Pizarro, a Silenne Castro Vindas, a María del Pilar Vargas Acosta, a Rodrigo Montenegro Trejos, a Anabelle León Feoli, a Ana Virginia Calzada Miranda, a Luis Fernando Solano Carrera, a Eva María Camacho Vargas, a Rolando Vega Robert, a Adrián Vargas Benavides, a Magda Lorena Pereira Villalobos, a Alejandro López Mc Adam, a Lupita Chaves Cervantes, a Milena Conejo Aguilar, a Francisco Segura Montero, a Álvaro Fernández Silva, a Rafael Sanabria Rojas, a Alfredo Jones León, a Jorge Luis Morales García, en su condición de Secretario General del Sindicato de la Judicatura, a Magda Díaz Bolaños, en su condición de Presidenta de la Asociación Costarricense de Juezas, a Linda María Casas Zamora, a Damaris Molina González, en su condición de Presidenta de la Asociación de Jubilados y Pensionados del Poder Judicial, a Laura María León Orozco, a Denis Alberto Villalta Canales, a José Gustavo Zelaya Muñoz y a Marco Antonio Cordero Coto, por haber demostrado todos un interés legítimo y haberse apersonado en el plazo correspondiente.

Asimismo, en esta resolución se aclaró que la gestión de coadyuvancia planteada por el señor Oscar Luis Fonseca Montoya no resultaba procedente, dado que falleció el 12 de junio de 2020. En cuanto a la gestión planteada por Damaris Molina González, se indicó que era admisible en su condición de Presidenta y representante judicial de la Asociación de Pensionados y Jubilados del Poder Judicial y, por ende, en representación de los miembros de dicha asociación. También, dicha resolución señaló que no era procedente la gestión formulada por Dennis Rubie Castro, “(…) abogado autenticante y quien manifestó acudir a ante esta Sala en condición de “abogado gestionante de la coadyuvancia de todas y cada una de las personas que se encuentran indicadas con sus respectivos nombres e identidades en la lista del Anexo I” (escrito recibido a las 14:09 horas del 16 de junio de 2020), toda vez que no aportó un poder judicial que lo legitime para coadyuvar en nombre de las personas enlistadas (…)”.

Cabe apuntar que, en fecha 18 de octubre de 2020, el señor José H. González Fernández, pensionado del Magisterio Nacional, solicita que se le tenga como coadyuvante activo de este proceso. Sin embargo, como dicha gestión fue presentada de manera extemporánea, superado el plazo establecido claramente en el ordinal 83 de la Ley de la Jurisdicción Constitucional, esta deviene en improcedente y corresponde ser rechazada.

V.- OBJETO DE LA ACCIÓN. Los accionantes aducen la inconstitucionalidad de lo dispuesto en los artículos 1°, 2, inciso d); 3; 4, inciso b); 5 y 7; todos de la Ley No. 9796 de 5 de diciembre de 2019, denominada “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, y lo dispuesto en el artículo 236 bis, inciso a), de la Ley Orgánica del Poder Judicial. Estas normas señalan expresamente lo siguiente:

De la ley No. 9796:

“ARTICULO 1- Objeto de la ley. El objeto de esta ley es contribuir con las finanzas públicas del país aplicando un rediseño de los topes de pensión máxima y de la pensión exenta de la contribución especial solidaria establecida sobre los regímenes de pensiones especiales contenidos en los artículos 3 de la Ley N.º 9383, Ley Marco de Contribución Especial de los Regímenes de Pensiones, de 29 de julio de 2016; 236 bis de la Ley N.º 8, Ley Orgánica del Poder Judicial, de 29 de noviembre de 1937 y en el artículo 71 de la Ley N.º 2248, Ley de Pensiones y Jubilaciones del Magisterio Nacional, de 5 de setiembre de 1958, que contemplan los regímenes del Poder Judicial y el Magisterio Nacional, respectivamente.” “ARTÍCULO 2- Ámbito de aplicación. Esta ley se aplicará a los regímenes de pensiones establecidos en las siguientes leyes: (…)

• d)La Ley N.º 8, Ley Orgánica del Poder Judicial, de 29 de noviembre de 1937. Esta ley no será aplicable a las personas cubiertas por el régimen de Invalidez, Vejez y Muerte que administra la Caja Costarricense de Seguro Social (CCSS).” “ARTÍCULO 3- Fines. Esta ley tendrá los siguientes fines:
• a)Otorgarle continuidad y aplicabilidad a la contribución solidaria como un aporte para lograr el sostenimiento de las pensiones.
• b)Contribuir con la eliminación de las desigualdades en los beneficios sociales de las pensiones y jubilaciones, así como en las cargas tributarias.
• c)Dar sostenibilidad a los sistemas de pensiones mediante las nuevas aportaciones”.

“ARTÍCULO 4- Pensión máxima universal exenta de la contribución especial solidaria. Todas aquellas jubilaciones, pensiones unitarias o las multipensiones derivadas de los regímenes contributivos y no contributivos incluidos en el artículo 2 de esta ley, salvo las complementarias que están reguladas en la Ley N.º 7983, Ley de Protección al Trabajador, de 16 de febrero de 2000 y cualquier otra complementaria que exista en la Administración Pública, conferidas a una misma persona por causas legales distintas, que superen los montos que se dirán, según el régimen salarial público al que pertenezcan, estarán sujetas a la contribución especial solidaria creada mediante las leyes indicadas en los artículos 1 y 2 de la presente ley.

Los montos exentos de la contribución especial solidaria son los siguientes: (…)

• b)Hasta los seis (6) salarios base del puesto más bajo pagado en el Poder Judicial para el caso de las pensiones y jubilaciones contempladas en la Ley N. º 8, Ley Orgánica del Poder Judicial, de 29 de noviembre de 1937.” “ARTÍCULO 5- Principio de contribución progresiva. La deducción de la contribución obligatoria y solidaria se aplicará cumpliendo con la escalerilla de contribución progresiva establecida en cada una de las leyes indicadas en el artículo 2 de la presente ley.

Para el caso de las deducciones que se deban aplicar a las multipensiones solo podrán ser consideradas, para los efectos de la contribución especial solidaria, aquellas que se paguen dentro de un mismo régimen de pensiones no pudiéndose aplicar las sumatorias de montos de pensión entre regímenes distintos. En ningún caso, la suma de la contribución solidaria y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por esta ley, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión o las pensiones, que por derecho le correspondan al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión o las pensiones, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de las pensiones.” “ARTÍCULO 7- Reforma del inciso a) del artículo 236 bis de la Ley N.º 8, Ley Orgánica del Poder Judicial, de 29 de noviembre de 1937 Se reforma el inciso a) del artículo 236 bis de la Ley N.º 8, Ley Orgánica del Poder Judicial, de 29 de noviembre de 1937. El texto es el siguiente:

Artículo 236 bis- Contribución especial, solidaria y redistributiva de los pensionados y jubilados Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso”.

Por su parte, el artículo 236 bis, inciso a), de la Ley Orgánica del Poder Judicial, refiere:

“Artículo 236 bis- Contribución especial, solidaria y redistributiva de los pensionados y jubilados.

Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso”.

En lo medular, estiman los accionantes que el contenido de tales normas hizo que se incrementaran los porcentajes de contribución, de manera que se les obliga a pagar hasta un 55%, dejándoseles así desprovistos arbitrariamente a los jubilados del Poder Judicial de recursos económicos suficientes para solventar sus necesidades, principalmente, en virtud de la condición de adultos mayores que ostentan la mayoría de estos.

Por lo anterior, alegan que tales normas contrarían los derechos a la jubilación y a la seguridad social, el principio de no confiscatoriedad, el principio de no doble imposición en materia tributaria, el principio de no retroactividad en perjuicio, el principio de seguridad jurídica, el principio de igualdad, los principios de razonabilidad y proporcionalidad y el principio de solidaridad. Asimismo, acusan que, para el establecimiento de los porcentajes de contribución al régimen, no se contaron con estudios técnicos.

VI.- METODOLOGÍA DE ANÁLISIS DE LA PRESENTE ACCIÓN DE INCONSTITUCIONALIDAD. Para efectos de facilitar el estudio la presente acción, se procederá en primer término a realizar un análisis general de los motivos que dieron origen a la Ley No. 9796, así como del derecho a la jubilación y de la figura de la contribución especial solidaria para, posteriormente, centrar el estudio en las contribuciones de hasta un 55% a las que se ven obligados los jubilados judiciales aportar actualmente y lo dicho por la Sala respecto a ese tope máximo. Todo esto, como medio para, luego, examinar puntualmente los agravios que, sobre este punto en particular, presentaron los accionantes.

VII.- SOBRE LOS MOTIVOS QUE DIERON ORIGEN A LA LEY No. 9796 Y EL TEXTO DE INTERÉS FINALMENTE APROBADO. Para dar inicio al estudio del presente proceso de constitucionalidad, resulta propicio conocer, primeramente, a grandes rasgos, los orígenes o motivos que llevaron a la creación de la ley impugnada por los accionantes.

De este modo, se debe indicar que el 24 de abril del año 2018 se dictó la Ley No. 9544, denominada Reforma a la Ley Orgánica del Poder Judicial (publicada en La Gaceta No. 89 de 22 de mayo de 2018). Mediante este último cuerpo normativo se reformó lo dispuesto en el título IX de la citada Ley Orgánica del Poder Judicial, a saber, concretamente, lo señalado en los numerales 224 al 233 (capítulo I referido a las prestaciones), el ordinal 234 (capítulo II tocante al traslado de cotizaciones), los artículos 235 al 238 (capítulo III denominado El Fondo) y los numerales 239 al 242 (capítulo IV respecto a la administración); igualmente, se derogaron varias normas e insertaron algunos transitorios. Los antecedentes y motivos que dieron origen a esta particular ley fueron ampliamente explicados por esta Sala Constitucional en el considerando VII de la Sentencia No. 2021-11957 de las 17:00 hrs. de 25 de mayo de 2021, a través de la cual, precisamente, se analizó su constitucionalidad, tal y como se dirá y explicará más adelante.

Ahora bien, de particular interés y, para efectos de este proceso de constitucionalidad, cabe apuntar lo consignado, en aquella oportunidad, en los ordinales 236 y 236 bis de la citada Ley No. 9544 (correspondientes al capítulo III denominado el fondo). El primero de estos artículos dispuso que el Fondo de Jubilaciones y Pensiones del Poder Judicial tendría una serie de ingresos, a saber: 1) Un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente. 2) Un aporte patronal del Poder Judicial de un catorce coma treinta y seis por ciento (14,36%) sobre los sueldos y los salarios de sus servidores. 3) Un aporte del Estado que será un porcentaje sobre los sueldos y los salarios igual al establecido para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social (CCSS) y 4) Los rendimientos y demás beneficios que produzca o pueda llegar a generar, obtener el Fondo. Además, se aclaró que, en ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo, podría representar más del 55% respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. También se dijo que, para los casos en los cuales esta suma superara ese 55% respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustaría de forma tal que la suma fuera igual al 55% respecto de la totalidad del monto bruto de la pensión. Finalmente, en ese ordinal se aclaró que los recursos que se obtuvieran de esa contribución obligatoria establecida ingresarían a ese Fondo de Jubilaciones del Poder Judicial.

Por su parte, a través del artículo 236 bis se estableció lo tocante a la contribución especial, solidaria y redistributiva a la que se encontrarían obligados los pensionados de esta institución. Se dispuso, entonces, que, además de las cotizaciones comunes establecidas en el ordinal anterior, los pensionados cuyas prestaciones superen los siguientes montos, deberían contribuir de forma especial, solidaria y redistributiva: a) Sobre el exceso del tope establecido en el artículo 225 (que, a su vez, disponía que ninguna jubilación podría ser superior a 10 veces el salario base del puesto más bajo pagado ni inferior a la tercera parte del salario base del puesto más bajo pagado en el Poder Judicial) y hasta por el 25% de dicho tope, contribuirían con 35% de tal exceso. b) Sobre el exceso del margen anterior y hasta por un 25% más, contribuirían con el 40% de tal exceso. c) Sobre el exceso del margen anterior y hasta por un 25%, contribuirían con el 45% de tal exceso. d) Sobre el exceso del margen anterior y hasta por un 25% más, contribuirían con el 50% de tal exceso y e) Sobre el exceso del margen anterior contribuirían con un 55%. Igualmente, en este numeral se aclaró que, en ningún caso, la suma de esa contribución especial y la totalidad de las deducciones que se aplicaran por ley a todos los pensionados del Poder Judicial podría representar más del 55% respecto a la totalidad del monto bruto de la pensión. Se dijo también que, para los casos en los cuales esa suma superara ese 55%, respecto a la totalidad del monto bruto de la pensión, la contribución especial se reajustaría de forma tal que la suma fuera igual a 55% respecto de la totalidad del monto bruto de la pensión. Se agregó que los recursos que se obtuvieran con la contribución especial ingresarían al Fondo de Jubilaciones y Pensiones del Poder Judicial.

Poco tiempo después, en el mes de octubre de ese mismo año 2018, once Diputados de la Asamblea Legislativa presentaron un nuevo proyecto de ley relacionado intrínsecamente con la ley anterior, entonces denominado “Ley para fijar topes equitativos a las pensiones de lujo, rediseñar y redistribuir los recursos de la contribución especial solidaria y crear la figura de la jubilación obligatoria excepcional”, el cual, a su vez, se tramitó conforme el expediente legislativo No. 21.035.

Una lectura realizada a la exposición de motivos de dicho proyecto de ley, permite dejar entrever que el objetivo principal de este (al menos en lo que nos interesa para efectos de estudio de este proceso), era realizar un nuevo “recorte” a las pensiones percibidas por los jubilados de distintos regímenes, incluido el del Poder Judicial, mediante un rediseño específicamente en el tema de la contribución especial solidaria. Lo anterior, con el fin, a su vez, de “dar un poco más de uniformidad” a los regímenes, en cuanto a los beneficios y cargas, reduciendo las bases exentas de los montos de pensiones “para que puedan aplicárseles las tablas progresivas de la contribución solidaria” y evitar con ello lo que se consideró una “enorme desigualdad en los beneficios de una pensión o jubilación”.

En su versión original, el proyecto buscaba que, por encima de los 8 salarios más bajos (fuera del Poder Judicial, del Poder Ejecutivo, del Tribunal Supremo de Elecciones, etc.), se estarían aplicando esos porcentajes de deducción por concepto de contribución solidaria.

Según dicha exposición de motivos, con la entonces legislación vigente este era el panorama en cuanto a las bases exentas del pago de la contribución obligatoria solidaria:

Salario más bajo pagado en el Poder Judicial Salario más bajo pagado en la Administración Pública Salario de un catedrático de la UCR + 30 anualidades + dedicación exclusiva Monto aproximado: ₡ 463.000 Monto aproximado : ₡ 274.800 ----------- X 10 X 10 ----------- Total base exenta:

₡ 4.630.000 Total base exenta:

₡ 2.740.800 Total base exenta:

₡ 3.917.961.65 Y, con el proyecto de ley, se pretendía tratar de uniformar la situación de los diversos regímenes, de la siguiente manera:

Poder Judicial Ley 7333 MTSS Leyes 7302 y 9383 Magisterio Nacional Ley 2248 Monto aproximado:

₡ 463.000 X8 Monto aproximado :

₡ 274.800 X 8 Monto aproximado :

₡ 274.800 X 8 Total base exenta:

₡ 3.704.000 Total base exenta:

₡ 2.198.400 Total base exenta:

₡ 2.198.400 Igualmente, en el proyecto se sostuvo que las anteriores medidas buscaban que el Poder Ejecutivo contara con recursos “nuevos y constantes”, ampliando la base de contribuyentes al bajar el tope exento de la pensión y recolectando ingresos durante el plazo de 10 años para avanzar en el pago de la deuda interna y externa y superar, de esta forma, la crisis fiscal y de desempleo que, según se afirmó, amenazaba la estabilidad económica y el desarrollo del país. En consuno con lo anterior, se aclaró que esas medidas, originalmente, poseían carácter temporal en el tratamiento de los destinos de los recursos “por lo que al final del plazo dispuesto en esta iniciativa de ley, estarían retornando al destino establecidos en las normas afectadas, es decir, para el sostenimiento de los fondos de pensión y caja única, según corresponda”.

El citado proyecto fue publicado en el Alcance No. 14 de La Gaceta No. 214 de 18 de diciembre de 2018 y, posteriormente, continuó con el correspondiente trámite legislativo. Finalmente, el día 5 de diciembre del año 2019 se emitió la actualmente impugnada Ley No. 9796, bajo el nombre de “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, la cual, a su vez, fue publicada en el Alcance No. 286 de La Gaceta No. 243 de 20 de diciembre de 2019, con la indicación expresa que entraría en vigencia a partir de 21 de junio del año 2020.

Cabe señalar que, en lo que respecta al régimen de pensiones del Poder Judicial y en lo que interesa para efectos de resolver este asunto, la normativa de interés finalmente estipuló que el monto exento de la contribución especial solidaria sería hasta los 6 salarios base del puesto más bajo en el Poder Judicial (artículo 4, inciso b). Por su parte, el artículo 5 indicó que la deducción de la contribución solidaria se aplicaría cumpliéndose con la escalerilla de contribución progresiva y se aclaró nuevamente que, en ningún caso, la suma de la contribución solidaria y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la ley, podría representar más del 55% respecto a la totalidad del monto bruto de la pensión, por lo que, en caso contrario, se llevaría a cabo el respectivo ajuste, de manera tal que la suma fuera igual a ese 55%. En concordancia con lo anterior, a través del ordinal 7° de la ley bajo estudio se dispuso reformar, a su vez, el ya citado artículo 236 bis de la Ley Orgánica del Poder Judicial, concretamente, su inciso a), de manera tal que este preciso numeral quedó estableciendo lo siguiente:

“Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.” De esta manera, en aquel momento y antes de emitida la Sentencia No. 2021-11957 de las 17:00 hrs. de 25 de mayo de 2021 -que, como se dijo, se pronunció sobre la constitucionalidad de la Ley No. 9544-, el ordinal 236 bis de la Ley Orgánica del Poder Judicial se leía de la siguiente manera; es decir, sin que se hubiera emitido interpretación alguna sobre su contenido:

“Artículo 236 bis- Contribución especial, solidaria y redistributiva de los pensionados y jubilados Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.
• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso.
• e)Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%).

En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%)(*) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presente ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial”.

En adición a lo anterior, cabe resaltar que la ley aprobada No. 9796 desechó el numeral que contemplaba originalmente trasladar los recursos obtenidos al pago de la deuda del Estado. Situación anterior que se logra acreditar al efectuarse una lectura de la parte final de lo dispuesto en el supra citado ordinal 236 bis de la Ley Orgánica del Poder Judicial.

De esta manera, como se puede apreciar con meridiana claridad, el cambio sustancial o de mayor importancia que se realiza con la Ley No. 9796, respecto a la anterior Ley No. 9544, radica medularmente en el acortamiento en el rango de exención de la contribución solidaria, habida cuenta que, de obligar al pago de la contribución solidaria a quienes superen el monto de diez salarios base del puesto más bajo pagado en el Poder Judicial, se pasó a obligar a los que superen el monto de seis de estos salarios. Este último aspecto, cabe destacar y advertir desde ya, resulta de gran importancia para efectos de la resolución de este proceso de constitucionalidad, sobre todo, partiendo de los precedentes que, sobre este mismo tema, ha emitido ya esta Sala Constitucional.

Igualmente, cabe reiterar y dejar claro que la Ley No. 9796 no solamente realizó una modificación al régimen de pensiones del Poder Judicial, sino también a otros regímenes, incluido, por ejemplo, el del Magisterio Nacional, situación última respecto a la cual, ya también emitió pronunciamiento esta Sala, tal y como se indicará en los próximos considerados.

VIII.- SOBRE EL DERECHO A LA JUBILACIÓN Y LA CONSTITUCIONALIDAD DE LAS CONTRIBUCIONES SOLIDARIAS, ESPECIALMENTE, EN LO QUE SE REFIERE AL RÉGIMEN DE JUBILACIONES DEL PODER JUDICIAL. En varias oportunidades, este órgano constitucional se ha referido a las denominadas contribuciones solidarias impuestas a los pensionados. De especial interés, para efectos de resolver esta acción de inconstitucionalidad, se debe hacer mención a la Sentencia No. 2020-19274, de las 16:30 hrs. de 7 de octubre de 2020, a través de la cual esta jurisdicción se pronunció sobre el derecho fundamental a la jubilación, a las limitaciones que le pueden ser aplicadas y, en particular, respecto a este tipo de contribución especial impuesta, para ese caso en particular, a los pensionados de otros regímenes (distintos al régimen del Poder Judicial) mediante las leyes Nos. 9380 y 9383. De manera expresa, en aquella ocasión, se indicó lo siguiente:

“VI.- Sobre el derecho a la seguridad social y al derecho a la jubilación. Esta Sala, no en pocas ocasiones, ha establecido, en su jurisprudencia, la importancia de la seguridad social, derecho que comprende a su vez varios derechos; y, entre ellos, el derecho a la pensión o jubilación. El derecho a la seguridad social es uno de muchos otros Derechos Económicos, Sociales y Culturales, que abarca otros derechos fundamentales establecidos en una serie de normas contenidas en instrumentos y tratados de derechos humanos. En este sentido, son parte del Derecho de la Constitución (valores, principios y derechos), que permiten darle un contenido específico, así como sustentar las actuaciones estatales que buscan materializar los fines políticos y conductas estatales, que les son inherentes, con el objetivo de materializar esos derechos fundamentales. En Costa Rica, son derechos que constan tanto en la Constitución Política (como gran pacto social nacional), pero además, aceptados como deberes jurídicos a través de las obligaciones internacionales que el Estado adquiere, libre y voluntariamente frente a la comunidad internacional.

Así, el derecho a la seguridad social, en la Constitución Política, encuentra su fundamento en los artículos 50, 73 y 74, así como la integración conforme a los artículos 7 y 48, Constitucionales, con los artículos 11 y 16, de la Declaración de los Derechos y Deberes del Hombre; 22 y 25, de la Declaración Universal de los Derechos Humanos; 31, de la Carta Internacional Americana de Garantías Sociales; 25, 28, 29 y 30, del Convenio N° 102, de la Organización Internacional del Trabajo, así como el artículo 9, del Pacto Internacional de Derechos Económicos, Sociales y Culturales. En una de las sentencias más emblemáticas de una novel Sala Constitucional, se estableció, con toda claridad, la interrelación de estas normas para establecer el derecho fundamental a la jubilación. Así, por Sentencia N° 1990-1147 de las 16:00 horas del 21 de septiembre de 1990, se estableció que:

“III.- En primer lugar, la Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución, según los cuales:

"Artículo 33.

Todo hombre es igual ante la ley y no podrá hacerse discriminación alguna contraria a la dignidad humana" "Artículo 73.

Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine...".

Esa conclusión se confirma en una serie de principios y normas internacionales de derechos humanos, que tienen, no sólo el rango superior a la ley ordinaria que les confiere el artículo 7 de la Constitución, sino también un amparo constitucional directo que prácticamente los equipara a los consagrados expresamente por la propia Carta Fundamental, al tenor del artículo 48 de la misma, (reformado por la Ley No. 7128 de 18 de agosto de 1989); entre esos derechos, concretamente, los reconocidos en los artículos 25, 28, 29 y 30- así corregidos los que se invocan en la acción- del Convenio sobre la Seguridad Social, No. 102 de la OIT, en los cuales se establece:

"Artículo 25.

Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte" "Artículo 28.

La prestación consistirá en un pago periódico, calculado en la forma siguiente... " "Artículo 29.

1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

• a)a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia...

"2. Cuando la concesión de la prestación mencionada en el párrafo 1 esté condicionada al cumplimiento de un período mínimo de cotización o de empleo, deberá garantizarse una prestación reducida por lo menos:

"a) A las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas un período de calificación de quince años de cotización o de empleo... " "Artículo 30.

"Las prestaciones mencionadas en los artículos 28 y 29 deberán concederse durante todo el transcurso de la contingencia".

Otros textos internacionales reconocen también, o específicamente el derecho a la jubilación -por edad o vejez- (p. ej. art.16 Declaración Americana de los Derechos y Deberes del Hombre; 22 y 25 Declaración Universal de Derechos Humanos; 31 Carta Internacional Americana de Garantías Sociales; 5o Convención sobre Igualdad de Trato en Materia de Seguridad Social, No. 118 OIT), o, en general, el Derecho a la Seguridad Social, dentro de la cual se tiene universalmente por comprendida la jubilación (p. ej. art.11 Declaración Americana de los Derechos y Deberes del Hombre; y 9° Pacto Internacional de Derechos Económicos, Sociales y Culturales).

IV.- Como se ve, en ambas clases de las normas dichas se reconoce el derecho fundamental de todo trabajador a su jubilación, y se alude claramente a la vejez, en lo que interesa, como la "contingencia" determinante del derecho a la prestación -jubilación-.

[…]

VII.- En todo caso, la Sala considera que el derecho a la jubilación, en general o en los regímenes especiales aludidos, no puede ser normalmente condicionado a la conducta de su titular, ya sea ésta anterior o posterior a su consolidación como derecho adquirido. En realidad, no se ignora que el de jubilación, como cualquier otro derecho, está sujeto a condiciones y limitaciones, pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten, además, razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin. Esto no es otra cosa que expresión de un conocido principio del Derecho de los Derechos Humanos, que puede denominarse de proporcionalidad, y que se recoge, en general, como condición sine qua non de las limitaciones y restricciones a tales derechos autorizadas excepcionalmente por los propios textos que los consagran; principio que se encuentra enumerado, por ejemplo, en los artículos 29.2 y 30 de la Declaración Universal de Derechos Humanos, 29 y 30 de la Convención Americana sobre Derechos Humanos, 5o del Pacto Internacional de Derechos Civiles y Políticos, y 4 y 5 del Pacto Internacional de Derechos Económicos, Sociales y Culturales”(…)”.

El precedente citado evidencia que, desde muy temprano en la jurisprudencia de esta Sala Constitucional, se reconoció el derecho a la jubilación como un derecho constitucional a favor de toda persona trabajadora, en condiciones de igualdad y sin discriminación alguna, y es parte de un derecho general a la seguridad social, como se ha explicado arriba.

En consonancia con la discusión del derecho a la seguridad social, como un Derecho Económico, Social y Cultural, la Corte Interamericana de Derechos Humanos también ha contribuido a su protección estableciendo la justiciabilidad de tales derechos en el sistema interamericano, a la luz del artículo 26, de la Convención Americana de Derechos Humanos, al reconocerle “de manera autónoma, como parte integrante de los derechos económicos, sociales, culturales y ambientales”, y dentro del corpus iuris internacional y nacional como las normas de la Carta de la Organización de los Estados Americanos (OEA), así como normas de interpretación de la Convención Americana en el artículo 29. En este sentido, como bien corresponde reconocer, tanto la Corte Interamericana como la Sala Constitucional utilizan los criterios protectores de interpretación, especialmente cuando las normas nacionales otorgan mayores derechos que las normas internacionales, y viceversa, como lo ha hecho esta Sala al enunciar el Derecho de la Constitución (principios, valores y derechos), otorgando primacía a la norma constitucional frente a los derechos contenidos en el corpus iuris internacional, especialmente cuando garantizan más derechos que la Constitución Política. De la misma forma, es importante mencionar, que la Convención Americana enuncia los principios de garantía mínima y principio protector pro-persona. El primero como el reconocimiento de que todo tratado internacional constituye un piso o base que le impide al propio Estado dejar de reconocer los derechos a que se comprometió a nivel internacional, en favor de la persona humana. Así, siempre deberá respetar el mínimo fijado en un tratado específico u otro acuerdo internacional que le supere, pero sobre todo, sin perjuicio de que mejore esas condiciones mediante la normativa nacional. En cuanto al principio pro-persona, debe señalarse que privilegia, prefiere y favorece la aplicación de las normas que ofrezcan mayor protección a los derechos de la persona humana, sea en una norma nacional o de derecho internacional.

De forma más específica, el derecho a la seguridad social a nivel internacional se debe caracterizar porque se compone de un nivel mínimo de prestaciones que comprendan al menos una atención básica de la salud, prestaciones pecuniarias de enfermedad, de desempleo, prestaciones de vejez, en caso de accidente del trabajo y enfermedades profesionales, prestaciones familiares, prestaciones de maternidad, de invalidez y de supervivencia, todo esto de conformidad con el Convenio N° 102, de la Organización Internacional del Trabajo. El derecho a la seguridad social y a la protección social se refiere al derecho a que no se pueda denegar la cobertura de la seguridad social, de manera arbitraria o no razonable, y el derecho a la igualdad en el disfrute de la adecuada protección en caso de desempleo, enfermedad, vejez o falta de medios de subsistencia, en circunstancias que escapan al control de la persona. Por Sentencia N° 2012-16628 de las 16:30 horas del 28 de noviembre de 2012, esta Sala estableció, en relación con el Convenio N° 102, antes referido, lo siguiente:

“Lo cierto es que la normativa internacional establece lo que la jerga de la seguridad social denomina en algunos de los documentos de la OIT el piso social o piso de protección social como un mínimo de obligaciones fundamentales que sí podrían ser justiciables, sí existen obligaciones jurídicas no cumplidas y exigibles en forma doméstica, o agotada ésta, a nivel internacional. […] Lo importante es que el Convenio 102 de la OIT contiene nueve ramas de la seguridad social, donde establece normas mínimas para cada una de ellas, y enuncia principios para la sostenibilidad y buena gobernanza de dichos sistemas. Este convenio incluye una cláusula de flexibilidad de manera que al ratificar el Tratado, el Estado puede escoger por lo menos tres áreas de protección”.

En tal sentido, está claro que existe una obligación de reconocer el piso o la base normativa contenida en los instrumentos internacionales, de manera que cuando el Estado interfiere con esos mínimos, estos constituyen un verdadero límite, se convierten en un núcleo de resistencia que permite repeler transgresiones o interferencias injustificadas del Estado. De igual modo, se debe proteger de las infracciones por omisión cuando se prescinden de estos derechos. En tal sentido, se puede reclamar tales violaciones judicialmente cuando se estimen lesionados los derechos fundamentales. Lo anterior permite entender que hay un verdadero núcleo duro del derecho a la pensión. Este, debe estar conformado primero por el derecho a las prestaciones mínimas definidas por la seguridad social como un derecho constitucional y precisado por la normativa internacional. De este modo, la base del núcleo duro del derecho a la pensión, comprende el goce de una serie de regulaciones nacionales e internacionales que le permitan a la persona asegurada tener un nivel de vida digno y adecuado, sin perjuicio de afirmar que debe haber una relación razonable y proporcional a la contribución de tal derecho, por ser este un derecho compuesto, como un esfuerzo social y económico de los diferentes factores de producción: Estado, Patrono y Trabajadores. Debe incluir, también, otros parámetros internacionales libremente aceptados por el país, como normativa internacional que recoge las preocupaciones de la comunidad internacional. Como derecho económico, social y cultural, hay que tomar en cuenta algunas de sus características que podrían nutrir al derecho a la seguridad social, como en efecto tratados internacionales específicos en la materia de los adultos mayores. Otros, por ejemplo, derivados de la protección al vínculo matrimonial o de uniones de hecho por viudez, como un derecho a recibir las prestaciones de sobrevivientes y otros beneficiarios.

En segundo lugar, por la mejoría en el esquema prestacional de los derechos alcanzados por la sociedad en un momento histórico con anterioridad, que solo deberían ser desmejorados fundadamente (estudios actuariales, económicos nacionales e internacionales), de modo que hay un derecho al mantenimiento de la protección que el asegurado recibe conforme a la legislación nacional, al pertenecer a un régimen y especialmente declarado al cumplir con las condiciones y requisitos necesarios, para el disfrute de un derecho de goce pacífico. Como resultado se deriva una obligación muy importante, esto es, que debe haber una definición muy precisa de los motivos que obligan al Estado a reducir condiciones establecidas previamente mediante políticas prestacionales, de modo que debe enfrentar criterios más estrictos conforme su nivel de impacto en la población (variando conforme a la temporalidad y permanencia). Estas políticas, claro está, deben ser concretadas en legislación y normativa secundaria aprobada bajo el marco legal respectivo (conforme a la potestad reglamentaria), pero sin ser tan general como una crisis económica o fiscal, pues evidentemente, los recursos del Estado serán escasos y limitados siempre, y cuya función de distribuir la riqueza siempre le va a llevar a ponderar dónde colocar más recursos en ciertas prestaciones económicas y sociales, con base en la necesidad de alcanzar objetivos políticos, económicos o sociales (en un sentido positivo y programático), lo que puede provocar “urgencias” a las otras áreas que pujan por más recursos estatales. En otras palabras, la crisis financiera ni es en sí misma ni puede ser una justificación para la toma de decisiones regresivas, pero sí un detonante que debe materializarse en el interés público del Estado de elevar acciones concretas en su legislación. Esto, sin olvidar que el propio Comité de Derechos Económicos, Sociales y Culturales, establece una primacía del derecho y de la política de estos derechos, donde la falta de recursos no puede servir de pretexto para el incumplimiento de ellos.

El Convenio N° 102, de la Organización Internacional del Trabajo, no es un instrumento rígido, pues ofrece un marco que permite a los Estados adoptar sus realidades nacionales a los esquemas protegidos, pero existen ciertas reglas que deben acompañar los esfuerzos nacionales por obtener la universalización de los seguros, con una cobertura que sea razonable y ponderada para los sectores involucrados. Cabe indicar, nuevamente, que al referirse al núcleo duro de un derecho, se hace referencia a aquella parte de los derechos fundamentales en que el Estado no estaría legitimado para interferir o transgredir, porque, en ese caso, estaría infringiendo los derechos y libertades fundamentales, contenidos en la Constitución Política como en obligaciones internacionales adquiridas en los instrumentos internacionales de Derechos Económicos y Sociales. (…) reviste importancia la cuestión de si es posible establecer impuestos a las prestaciones que se reciben, provenientes del derecho a la pensión. Desde un punto de vista del Derecho de la Constitución, en cuanto integra los principios, valores y derechos contenidos en la Constitución Política, la vinculación estrecha con los derechos humanos vigentes en la República, que la aplicación de las medidas impugnadas son producto de un proceso democrático, basado en el interés público para contener y controlar el gasto público que ha venido a diezmar la posición económica y de reacción del país. En este sentido, trae a colación esta Sala el artículo 5, del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales, conocido como el Protocolo de San Salvador, en el que señala:

“Los Estados partes sólo podrán establecer restricciones y limitaciones al goce y ejercicio de los derechos establecidos en el presente Protocolo mediante leyes promulgadas con el objeto de preservar el bienestar general dentro de una sociedad democrática, en la medida que no contradigan el propósito y razón de los mismos”.

De este modo, debe afirmarse que el derecho a la pensión, no es un derecho absoluto, que si bien deben respetarse las condiciones en las que fue otorgada, ello no implica que el monto que se recibe mes a mes esté exento de restricciones y limitaciones. Lo que la disposición establece es el reconocimiento de que los derechos económicos y sociales conllevan obligaciones prestacionales del Estado, que comprometen sus recursos, de modo que existe el reconocimiento de que puede operar un contrapeso que ayude a delinear estas restricciones y limitaciones, por supuesto, siempre que sean razonables y proporcionales. De este modo, no pueden contradecir el propósito y razón del derecho de que se trata. En esta disposición está implícita la necesidad de que sean las leyes, aprobadas mediante un proceso democrático y por un órgano democrático como la Asamblea Legislativa, logre establecer aquellas restricciones y limitaciones que proporcionen ese balance, debidamente ponderado.

En el caso de los accionantes, es claro que el monto que reciben los pensionados y jubilados se ajusta a los montos que reciben los funcionarios activos, en este caso, Diputados de la República. Por otra parte, la aprobación de tributos, a través de la ley, de conformidad con el artículo 121, inciso 13), de la Constitución Política asegura el cumplimiento de exigencias constitucionales, como también convencionales, del artículo 5, del Pacto de San Salvador. La contribución especial, solidaria y redistributiva cumple entonces con otra arista importante, como es el principio de legalidad tributaria, en el que solo mediante ley formal y material, se puede gravar los ingresos de los ciudadanos de la República, lo que viene heredado de la tradición legal anglosajona de la necesaria representación en la aprobación de los impuestos: “no taxation without representation”. Además, como tributo, la contribución especial, solidaria y redistributiva, se enmarca dentro de la doctrina de la Ley de Normas y Procedimientos Tributarios, en el sentido que define el hecho generador (beneficio-pensión) que se recibe como una actividad estatal y prestacional, y dispone que los recursos recaudados se destinarán a la seguridad social. En este sentido, el artículo 4, de la Ley N° 9383, establece esta contribución especial para cuotas de seguridad social cuando señala que los recursos recaudados regresan a los regímenes especiales de pensiones con cargo al presupuesto nacional, así como el financiamiento directo del Régimen No Contributivo, administrado por la Caja Costarricense de Seguro Social (CCSS). En igual sentido, el artículo único, de la Ley N° 9380, en cuanto establece el destino de las cotizaciones para regímenes especiales de pensión con cargo al presupuesto nacional. Con todo ello, se cumple con lo dispuesto en el artículo 5, del Pacto de San Salvador. Y, a pesar de todo lo anterior, el monto de la prestación económica de la pensión, se sigue manteniendo en un estrato superior del sistema nacional de pensiones, cercano al ingreso de quienes prestan servicios en un ámbito laboral competitivo, razón por la cual, mantienen un nivel económico que permite aún integrarse y participar activamente en las esferas económicas, sociales, culturales y políticas del país. Esto guarda lógica con la exigencia de adecuación y dignidad de los pensionados y jubilados; claro está, siendo necesaria la contribución y cotización conforme se incrementa la capacidad contributiva, especialmente, para aquellos regímenes que no habían sido intervenidos con anterioridad por los excesos que contenían, sin desproteger los montos de los otros pensionados y jubilados (…)” (El destacado no forma parte del original).

Ahora, en lo que respecta propiamente al Poder Judicial, tal y como se señaló en considerando VII de la presente sentencia, hace escasos años, esta jurisdicción constitucional, con motivo de la promulgación de la ya también citada Ley No. 9544 -y principalmente, en virtud de lo dispuesto en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial-, mediante sentencia 2021-11957 de las 17:00 hrs. de 25 de mayo de 2021, se refirió, en primer término y grosso modo, a la figura de la contribución especial solidaria impuesta concretamente a los jubilados de esta institución, e hizo hincapié en su constitucionalidad.

Para arribar a esa conclusión, la Sala, en aquella oportunidad, primeramente, hizo también alusión al derecho a disfrutar de la jubilación, así como a las limitaciones y regulaciones que a este se le puede imponer. Sobre el particular, en esta ocasión, se indicó expresamente lo siguiente:

“XXIII.- Redacta la Magistrada Hernández López. Sobre el derecho a disfrutar de una jubilación. Este Tribunal ha señalado con claridad que el modelo de Estado social de Derecho y el concepto de seguridad social que adopta nuestra Constitución Política, incluye -como uno de sus elementos- el derecho en favor de las personas trabajadoras, de obtener una jubilación luego del cumplimiento de determinadas condiciones normativamente establecidas. Es ésta una de las formas de expresión del derecho fundamental a la seguridad social recogido en nuestra normativa constitucional, al que se suman el seguro de salud, los distintos tipos de jubilaciones contributivas, así como las no contributivas, entre otros. En este sentido la sentencia 2018-19030 del 14 de noviembre de 2018, que sirvió de base para resolver varios reclamos en materia jubilatoria, expuso con claridad las características que esta Sala ha definido en concreto para este derecho:

IV.- Sobre el derecho a la jubilación. La jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo determinado, y cuyo fin es garantizar una vida digna para la persona, luego de que finalice su etapa como trabajador. Este Tribunal ha sostenido, en reiteradas ocasiones, que el derecho a la pensión debe ser catalogado como un derecho fundamental, que se deriva del numeral 73 de la Constitución Política, y que se adquiere a partir del momento en que la persona cumple con todos los requisitos establecidos por la legislación correspondiente. De igual forma, se ha reconocido la existencia de distintos regímenes, como el de Capitalización Colectiva, en el que con las contribuciones periódicas de los miembros se crea un fondo común a partir del cual se hará frente al pago de las pensiones de los participantes, o el de Capitalización Individual, en el cual las contribuciones periódicas no provienen de un grupo de personas, sino de un individuo, que por medio de sus aportes al fondo, pretende garantizar el pago de su pensión cuando cumpla los requisitos para su obtención. Finalmente, se encuentra el régimen de pensiones con cargo al Presupuesto Nacional, en el que el financiamiento de jubilaciones y pensiones están cargo del presupuesto nacional. Ahora bien, en cuanto al tema general del derecho a la pensión, en las sentencias números 1147-90 de las 16 horas del 21 de septiembre de 1990, 487-94 de las 16:06 del 25 de enero de 1994, y 2010-1625 de las 9:30 del 27 de enero de 2010, el Tribunal expresó, en lo que interesa, lo siguiente:

“III.- En primer lugar, la Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución, según los cuales:

“Artículo 33 Todo hombre es igual ante la ley y no podrá hacerse discriminación alguna contraria a la dignidad humana" “ Artículo 73 Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine..." Esa conclusión se confirma en una serie de principios y normas internacionales de derechos humanos, que tienen, no sólo el rango superior a la ley ordinaria que les confiere el artículo 7 de la Constitución, sino también un amparo constitucional directo que prácticamente los equipara a los consagrados expresamente por la propia Carta Fundamental, al tenor del artículo 48 de la misma, (reformado por la Ley No. 7128 de 18 de agosto de 1989); entre esos derechos, concretamente, los reconocidos en los artículos 25, 28, 29 y 30- así corregidos los que se invocan en la acción- del Convenio sobre la Seguridad Social, No. 102 de la OIT, en los cuales se establece:

" Artículo 25 Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte" " Artículo 28 La prestación consistirá en un pago periódico, calculado en la forma siguiente... " " Artículo 29 1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

• a)a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia...

"2. Cuando la concesión de la prestación mencionada en el párrafo 1 esté condicionada al cumplimiento de un período mínimo de cotización o de empleo, deberá garantizarse una prestación reducida por lo menos:

"a) A las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas un período de calificación de quince años de cotización o de empleo... " " Artículo 30 "Las prestaciones mencionadas en los artículos 28 y 29 deberán concederse durante todo el transcurso de la contingencia" Otros textos internacionales reconocen también, o específicamente el derecho a la jubilación -por edad o vejez- (p. ej. art.16 Declaración Americana de los Derechos y Deberes del Hombre; 22 y 25 Declaración Universal de Derechos Humanos; 31 Carta Internacional Americana de Garantías Sociales; 5o Convención sobre Igualdad de Trato en Materia de Seguridad Social, No. 118 OIT), o, en general, el Derecho a la Seguridad Social, dentro de la cual se tiene universalmente por comprendida la jubilación (p. ej. art.11 Declaración Americana de los Derechos y Deberes del Hombre; y 9 Pacto Internacional de Derechos Económicos, Sociales y Culturales).

IV.- Como se ve, en ambas clases de las normas dichas se reconoce el derecho fundamental de todo trabajador a su jubilación, y se alude claramente a la vejez, en lo que interesa, como la "contingencia" determinante del derecho a la prestación -jubilación-. No se entiende por esto la objeción de la Procuraduría General, cuando afirma que las disposiciones del Convenio No. 102 OIT solamente protegen "a los trabajadores que sufriesen una contingencia dentro de su relación laboral, que no es el caso del recurrente... (f. 62 fte.); dando así, al parecer, a la expresión un sentido incomprensible de anormalidad, por cierto que sin ninguna explicación.” (…)

“II. Esta Sala ya ha conocido del asunto planteado en otras oportunidades (derecho constitucional y fundamental a la jubilación y pensión a favor de todo trabajador), existiendo elementos suficientes, y jurisprudencia lo que faculta su conocimiento de conformidad con el párrafo segundo del artículo 9 de la Ley de la Jurisdicción Constitucional.

III.Por resoluciones número 6124-93, de las catorce horas treinta minutos y 6125-93, de las catorce horas treinta y tres minutos, ambas del veintitrés de noviembre del año en curso, se conoció de dos acciones de inconstitucionalidad cuyos alegatos eran los mismos que los accionantes invocan en esta. En resolución número 1147-90, de las dieciséis horas del veintiuno de setiembre de mil novecientos noventa, la Sala consideró que la pensión o jubilación constituye un derecho fundamental con reconocimiento constitucional e internacional que:

"pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución." Así, está reconocido en los artículos 25, 28, 29 y 30 del Convenio sobre la Seguridad Social, número 102 de la O.I.T., 16 de la Convención Americana de los Derechos y Deberes del Hombre, 22 y 25 de la Declaración Universal de Derechos Humanos, 31 de la Carta Internacional Americana de Garantías Sociales, 5 de la Convención sobre Igualdad de Trato en Materia de Seguridad Social, número 118 de la O.I.T., 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, ámbito internacional, que de conformidad con el artículo 7 Constitucional, está integrado a nuestro ordenamiento jurídico.

IV.La pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen, no así el derecho concreto a la jubilación, que se adquiere cuando el interesado cumple con todos los presupuestos establecidos en la ley,(…)”

(…).

“ IV. El derecho a la jubilación y el Estado Social de Derecho. Los artículos 50, 56 y 74 de la Constitución Política configuran “el modelo de Estado social y democrático de Derecho” (Res. 9255 de las 16:03 horas del 25 de agosto del 2004). Como parte de este mismo modelo el principio de solidaridad social actúa como un eje orientador de política interna del Estado, porque el Estado Social de Derecho “entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables” (Res. 13205 de las 15:13 horas del 27 de septiembre del 2005). En forma consecuente y con sustento en el Estado Social de Derecho, “nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de… los trabajadores” (ibid), como es el caso del derecho de jubilación. (…)”. (Sentencia 2018-19030 del 14 de noviembre de 2020) XXIV.- Redacta la Magistrada Hernández López. Las limitaciones y regulación del alcance del derecho a una jubilación reconocido en favor de las personas trabajadoras. Sobre el tema del derecho a la jubilación, también ha enfatizado este Tribunal en la potestad que tiene el Estado de regular, ordenar y limitar los alcances del citado derecho. En la misma sentencia 2018-19030, recién citada se expuso:

“V.- El derecho a la pensión no es un derecho absoluto. Al igual que cualquier otro derecho fundamental, el derecho a la pensión no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no impidan su ejercicio. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la pensión, cuando se logre comprobar que existen ciertas situaciones, como desigualdades o privilegios, que ponen en riesgo la sostenibilidad de un régimen, y, por ende, atenten contra la naturaleza del sistema como tal. Sobre el particular, en el voto número 2379-96 de las 11:06 del 17 de mayo de 1996, se estableció lo siguiente:

II.- SOBRE EL DERECHO A LA JUBILACIÓN.- En reiterados fallos se ha reconocido en la pensión o jubilación un derecho fundamental a favor del trabajador. Véase por todas el pronunciamiento de esta Sala número 1147-90 de las dieciséis horas del veintiuno de setiembre de mil novecientos noventa, en el que se estableció:

"En primer lugar, esta Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano en condiciones de igualdad y sin discriminación alguna de conformidad con los artículos 33 y 73 de la Constitución Política..." Sin embargo, en el mismo pronunciamiento citado quedó establecido que dicho derecho no es absoluto y puede ser objeto de condiciones y limitaciones:

"En realidad no se ignora que el de jubilación, como cualquier otro derecho está sujeto a condiciones y limitaciones pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten además razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin. Esto no es otra cosa que expresión de un conocido principio del Derecho de los Derechos Humanos, que puede denominarse de proporcionalidad y que se recoge en general como condición sine qua non de las limitaciones y restricciones a tales derechos autorizados excepcionalmente por los propios textos que los consagran.".

De lo transcrito queda claro que dentro de todo el universo de limitaciones, condicionamientos y restricciones que puede sufrir el derecho fundamental a la jubilación, habrá un grupo de ellas de las que podrá predicarse que son constitucionalmente válidas siempre que cumplan con dos condiciones, a saber: a) que provengan de los textos que reconocen dichos derechos y garantías, y b) que sean necesarias para el ejercicio mismo del derecho de acuerdo con su naturaleza y fin. Es correcto concluir además que -por imperativo de la lógica estructural de nuestro ordenamiento jurídico- la primera de las condiciones recién señaladas puede ampliarse para incluir limitaciones y condicionamientos que provengan de textos de superior jerarquía o bien del mismo rango, tal y como sucede en este caso con las limitaciones que puedan surgir de la propia Constitución Política, entendida ésta no sólo como una agrupación de normas, sino como un conjunto de regulaciones y principios integrados con aspiración de armonía.

Tales conceptos fueron refrendados por una mayoría de la Sala, al evacuarse la consulta legislativa sobre el proyecto de ley que finalmente se convirtió en la ley 9544 aquí discutida. En ese pronunciamiento (sentencia 2018-005758) se reafirmó:

“(…) Cabe destacar, que el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación, cuando se logre comprobar que existen ciertas situaciones que ponen en riesgo la sostenibilidad de un régimen y, por ende, atenten contra la naturaleza del sistema como tal.” Y más adelante, concluyó que:

“Ahora bien, de lo expuesto se desprende, con claridad, que el derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación.(…)” De lo dicho, se concluye que resulta pacífica en la jurisprudencia de esta Sala, la tesis de que el Estado, a través de sus autoridades competentes, pueda ajustar las condiciones concretas de ejercicio del derecho de jubilación del que gozan los trabajadores, no solo a través del establecimiento de requisitos a cumplir para su efectivo disfrute, sino mediante la modificación precisa de las características de ese disfrute, con el fin de equilibrar la sostenibilidad de dicho régimen y respetando la exigencia de que los cambios “sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial.” (v. sentencia 2018-5758 recién citada) (…)” (El destacado no forma parte del original).

Líneas después, en esta misma sentencia 2021-11957, esta Sala se refirió a la contribución especial solidaria -creada, como se ha dicho, a través de la Ley No. 9544, con la consecuente reforma al artículo 236 bis de la Ley Orgánica del Poder Judicial, explicando y concluyendo igualmente lo siguiente:

“XLV.- Redacta la Magistrada Hernández López. La constitucionalidad de la figura jurídica de contribución especial, solidaria y redistributiva solidaria en general. Este Tribunal ha manifestado en ocasiones anteriores que la llamada contribución especial, solidaria y redistributiva no es asimilable al tributo y que no lo constituye en los términos previstos por la Constitución Política en los artículos 18 y 121 inciso 13), toda vez que está concebida únicamente para favorecer el régimen de los contribuyentes obligados, pero bajo ninguna circunstancia esos dineros podrán entrar a las arcas del Estado, con el carácter de ingreso corriente para satisfacer gastos distintos de las cargas del sistema de jubilaciones y pensiones (ver en ese sentido la sentencia número 5236-99 de las 14 horas del 7 de julio de 1999). Se ha afirmado también que este tipo de contribución es una obligación legal nacida a partir de un sistema que contempla el aporte de los servidores que están adscritos, siendo que ese acto de fijación de la contribución, sí debe ser controlado, de manera tal que es posible analizar, en sede jurisdiccional, el respeto al procedimiento legal establecido y la razonabilidad en la fijación del aporte (ver sentencia número 5236-99 de las 14 horas del 7 de julio de 1999). De tal forma, la contribución especial, solidaria y redistributiva que se establece en ese numeral 236 bis de la Ley Orgánica del Poder Judicial, no es un mecanismo novedoso que usa el legislador para intentar fortalecer un régimen de jubilaciones y pensiones; por el contrario, ya ha sido utilizado en otros sistemas como se hizo en la Ley número 7268 que es Reforma al Régimen de Pensiones del Magisterio Nacional, siendo que este Tribunal, en la acción de inconstitucionalidad número 3683-M-93, había analizado esa contribución y consideró, lo siguiente:

“III.- SOBRE LA CONTRIBUCION CONTEMPLADA EN EL ARTICULO 12.- Las contribuciones, tanto la general como la especial, establecidas a cargo de los pensionados y jubilados en el artículo 12 de la Ley número 7268, tienen legitimación constitucional, al tratarse en primer lugar de medidas fundadas en la naturaleza social del derecho de jubilación, que se inscriben dentro de los principios que conforman el Estado Social de Derecho recogidos por el artículo 50 Constitucional, y en segundo lugar porque, debido a esa indiscutible naturaleza social, el derecho de jubilación requiere una activa y predominante participación del Estado para su efectiva realización, por lo que aunque no podría ser eliminado o desatendido del todo, sí puede ser limitado, condicionado y restringido en la medida en que el Estado -la sociedad- se vea materialmente impedido de aportar a su efectiva concreción más allá de cierto nivel, debiendo aceptarse tales limitaciones por cuanto su fin es justamente asegurar la supervivencia y el efectivo ejercicio del derecho de jubilación a todos los trabajadores y en concreto la materialización del derecho de jubilación a todos los miembros del Régimen de Pensiones del Magisterio Nacional. A mayor abundamiento, puede citarse la resolución de esta Sala número 1925-91 de las doce horas del veintisiete de setiembre de mil novecientos noventa y uno, en la que se señaló:

"1) Naturaleza de la contribución al régimen: El primer aspecto que se consulta, es dilucidar si las contribuciones que se establecen en este artículo del proyecto son o no un tributo. El régimen de pensiones y jubilaciones objeto de este análisis, corresponde a la modalidad llamada contributiva, en el que se constituye un fondo con los aportes de los trabajadores, de los empleadores o patronos, y del Estado para sufragar el costo de los beneficios, una vez que el trabajador se acoge al retiro. Corresponde a la Ley definir, conforme a las especiales características de cada sistema de pensión o jubilación, el monto de las contribuciones que corresponde a cada una de las tres partes. Como lo indica la consulta, la Corte Suprema de Justicia en resolución de las quince horas del 12 de agosto de 1987, declaró sin lugar la acción de inconstitucionalidad interpuesta contra la facultad de la Caja Costarricense de Seguro Social para determinar las cuotas y prestaciones de los seguros sociales. Esta Sala comparte lo ahí expresado y no encuentra razón alguna para variar ese criterio, el que lo hace suyo, declarando que la contribución a que alude el artículo 12 del proyecto, por su naturaleza y efectos no es un tributo, como lo ha señalado la más calificada jurisprudencia y doctrina constitucionales”.

También en la sentencia número 1341-93 de las diez horas treinta minutos del veintinueve de marzo de mil novecientos noventa y tres, se volvió a conocer la cuestión y se reiteró el criterio emitido sobre el particular señalándose lo siguiente:

VII.- CONTRIBUCION AL FONDO DE JUBILACIONES Y PENSIONES Y CONFISCACION.- También se alega, en los distintos regímenes de retiro, que es violatorio a los derechos fundamentales exigirle a los beneficiarios de ellos, contribuir al Fondo, porque implica otorgarle efecto retroactivo a la Ley 7268 o 7302, según sea el caso y en último caso, confiscatoria la medida. Esta Sala mediante Voto No. 1925-91 de las 12:00 horas del 27 de setiembre de 1991 expresó que las contribuciones cobradas conforme al artículo 12 de la Ley 7268 no conforman un tributo, por estar estructurado el régimen según la modalidad llamada contributiva, en el que se constituye un fondo con los aportes de los trabajadores y beneficiarios, de los empleadores o patronos y del Estado, para sufragar el costo de los beneficios; y corresponde a la Ley definir, conforme a las especiales características de cada sistema de pensión o jubilación, el monto de las contribuciones que debe aportar cada quien. Este criterio lo externó la Sala, en la Consulta Legislativa facultativa, en el trámite de aprobación de la Ley 7268 y en la que fue consultado, concretamente, el artículo 12 referido. La Sala señaló que la contribución es el pago de una obligación legal, condición esencial para la existencia del régimen mismo y que tiene como fundamento el fortalecimiento del Fondo, para protección y beneficio de los propios contribuyentes. La fijación de la contribución, dentro de los límites que señala la misma Ley, debe obedecer a criterios técnicos, actuariales, para definir el costo real del sistema, de tal forma que "la única forma como los sujetos titulares de una pensión o jubilación puedan disfrutarla plenamente, es sufragando el costo proporcional que les corresponde del total del sistema" (Cf. fallo indicado) y la razón de ser de la ley, resulta así, adecuada al principio cristiano de justicia social (Art. 74 de la Constitución Política) y proporcionado al deber de contribuir en la medida del beneficio obtenido. Bajo ese mismo punto de vista, se concluyó que la contribución no resulta confiscatoria. La Sala no encuentra razones para modificar el criterio externado y en lo que atañe a este aspecto del amparo, procede declararlo sin lugar, manteniendo su jurisprudencia (Artículo 9 de la Ley de la Jurisdicción Constitucional)”.

A partir de lo dicho supra, la contribución especial, solidaria y redistributiva que se impugna en esta acción de inconstitucionalidad, debe ser entendida como una limitación constitucionalmente válida al derecho a la jubilación, surgida del carácter social de ese derecho y por ello no es inconstitucional en sí misma, ni en relación con los objetivos por los que se persigue con su creación.

XLVI.-. Redacta la Magistrada Hernández López. Sobre la creación de la contribución especial, solidaria y redistributiva como una potestad del Poder Legislativo.- Los accionantes argumentan que de conformidad con lo dispuesto en el artículo 121 inciso 13 de la Constitución Política, la Asamblea Legislativa no tiene competencia para crear contribuciones especiales, solidarias y redistributivas a favor de un fondo concreto, toda vez que en ese inciso se indica “establecer los impuestos y contribuciones nacionales”, recordando que la libertad de configuración del legislador, está limitada por el Derecho de la Constitución. No obstante lo anterior, considera la Sala que no llevan razón en este reclamo porque, como se dijo, la contribución especial, solidaria y redistributiva no está configurada como un impuesto, sino una carga parafiscal, fundada en la naturaleza social del derecho de jubilación, que se inscribe dentro de los principios que conforman el Estado Social de Derecho recogidos por el artículo 50 Constitucional por lo que es constitucionalmente válida, y además porque, como se dijo, se reviste de una indiscutible naturaleza social protegida por el Estado mediante la adopción de medidas necesarias para la efectiva realización del derecho social al que va dirigida, por lo que es válida su imposición justamente para asegurar la supervivencia y el efectivo ejercicio del derecho de jubilación a todos los trabajadores del Poder Judicial.

Igualmente, debe recordarse que, para la Sala, medidas como la contribución especial, solidaria y redistributiva -como aportaciones a la seguridad social-, son contribuciones parafiscales, impuestas en el ejercicio de una potestad de imperio del Estado para el cumplimiento de fines sociales o económicos y que solo se pueden crear a través de ley formal.

Sobre el tema de la contribución parafiscal, la jurisprudencia constitucional siguiendo la doctrina, ha considerado que las contribuciones parafiscales son figuras que pertenecen a la tributación general. A manera de ejemplo, ver las sentencias, 4785-93 y 6478-96. En este último caso se estableció lo siguiente:

“II.- Sobre el fondo: impugna el actor la obligación pecuniaria patronal que establece el artículo 5 de la Ley Orgánica del Banco Popular y de Desarrollo Comunal, que a continuación se transcribe, en lo conducente:

‘Artículo 5º.- El Fondo de Trabajo Capitalizado se formará por:

• a)Un aporte del 1/2% mensual sobre las remuneraciones, sean salarios o sueldos que deben pagar los empresarios particulares, los Poderes del Estado y todas las instituciones públicas; y (...)’, alegando violación del derecho de propiedad privada y la libertad de comercio. Sobre las lesiones acusadas, debe recordarse que el monto que se cobra a los patronos para constituir parte del ahorro obligatorio de sus empleados consiste en una contribución parafiscal, en los términos y con las consecuencias que ha definido este Tribunal:

“Esta especial configuración jurídica implica, necesariamente, que los aportes, tanto los de los productores, como los de terceros, incluyendo al Estado, que conforman el Fondo (inciso a) artículo 2° idem), sean verdaderas contribuciones con claros fines económicos y sociales, conocidas en la doctrina del Derecho Tributario, como ‘contribuciones parafiscales’, que son impuestas por el Estado pero no figuran en el presupuesto general de ingresos y gastos, por lo que recibe la denominación antes referida. La misma doctrina del Derecho Financiero define la figura como "tributos establecidos en favor de entes públicos o semipúblicos, económicos o sociales, para asegurar su financiación autónoma’. Quiere decir, lo anterior, que la contribución parafiscal no constituye una figura distinta de la tributación general.(...)" En todos los casos analizados por la jurisprudencia constitucional de este tipo de contribuciones, encontramos un denominador común, y es que estamos frente a una contribución que impone coactivamente el Estado para alcanzar un fin económico o social específico de un grupo de personas que tienen intereses en común (agricultores, profesionales, cooperativistas, trabajadores, etc.).

(…)

Se invoca como violación el hecho de que la Asamblea Legislativa haya creado un tributo especial, cuando, de conformidad con el numeral 121, inciso 13, de la Carta Fundamental únicamente se le atribuye a este órgano constitucional el establecer los impuestos nacionales y aprobar los municipales. Este agravio debe ser rechazado por varios motivos. Primero, lo que se crea en este caso es una contribución parafiscal, sea un tributo que se destina a una finalidad económica y social, en este caso a sufragar los gastos administrativos de Junta que se crea, lo que constitucional y doctrinariamente está más que justificado. En segundo término, resulta lógico de si un grupo de trabajadores tienen un régimen especial de jubilaciones y pensiones, conformando un fondo separado del régimen general -el de invalidez, vejez y muerte que administra la Caja Costarricense del Seguro Social-, resulta razonable y proporcional que los trabajadores activos, los jubilados y pensionados contribuyan al mantenimiento del órgano que tiene como competencia su administración. Finalmente, si la Asamblea Legislativa tiene la potestad de crear tributos con alcance general, ello no impide que pueda crear contribuciones parafiscales, cuando existen motivos objetivos y razonables para su creación (…)” (El destacado no forma parte del original).

De esta manera, se observa cómo la Sala ha sido del criterio que la imposición, per se, del pago de una contribución especial solidaria no puede ser catalogada como inconstitucional, ni representa una violación a los derechos fundamentales, en especial, al de los pensionados. Lo anterior, sobre todo, si se depara en sus objetivos o fines, los que radican en garantizar el derecho a la jubilación, en este caso, el derecho de los funcionarios del Poder Judicial.

IX.- SOBRE LA OBLIGACIÓN ACTUAL DE CONTRIBUCIÓN POR PARTE DE LOS JUBILADOS DEL PODER JUDICIAL, EL TOPE MÁXIMO DE UN 55% Y LO DISPUESTO, SOBRE EL PARTICULAR, POR ESTA SALA CONSTITUCIONAL. En virtud de lo consignado en los ordinales 4 y 7 de la Ley No. 9796, último que, a su vez, reformó el ordinal 236 bis, inciso a), de la Ley Orgánica del Poder Judicial, se tiene que los jubilados del Poder Judicial que se encuentran actualmente obligados a contribuir de forma especial, solidaria y redistributiva son aquellos que perciban un monto de pensión superior a los 6 salarios base del puesto más bajo pagado en el Poder Judicial. Lo anterior, a su vez, de conformidad con la siguiente tabla de montos y porcentajes consignada en ese mismo ordinal 236 bis de la Ley Orgánica del Poder Judicial, sea, la siguiente:

“a) Sobre el exceso del monto de seis (6) salarios base del puesto más bajo pagado en el Poder Judicial y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.

• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso.
• e)Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%[1]).” Según lo dispuesto supra, se entiende, entonces, que aquellos que reciben mayores montos de pensión, deben contribuir con sumas más elevadas al régimen.

Según el estudio de los autos, para el segundo semestre del año 2019 -año en que se emitió la normativa impugnada-, el salario más bajo del puesto más bajo de esa institución (Auxiliar de Servicios Generales 1), correspondía al monto de 425.800,00 colones. De manera tal que, aquellos que percibían entonces -año 2019- un monto de pensión bruto superior a los ¢2.554.800,00 colones, debían llevar a cabo dicha contribución, tal y como se dijo, de forma escalonada o progresiva.

Para el primer semestre del año 2023, según datos de la Dirección de Gestión Humana del Poder Judicial, el salario más bajo del puesto de menor rango (correspondiente al puesto de Auxiliar de Servicios Generales 1) estaba establecido en la suma de 433.800,00 colones, de forma que, las pensiones mayores a ¢2.602.800,00 colones, eran las que debían contribuir solidariamente.

Dicho lo anterior, conviene apuntar que, aunado a dicha contribución especial, a los montos de pensión de los jubilados del Poder Judicial se les realiza una serie de deducciones adicionales. A tenor de lo establecido en el ordinal 236, inciso 1°), de la Ley Orgánica del Poder Judicial -el cual fue objeto de reforma mediante la citada Ley No. 9544-, los jubilados deben aportar al Fondo de Pensiones del Poder Judicial un 13% de su pensión. Además de ello –tal y como desprende del informe rendido por el entonces Presidente de la Corte Suprema de Justicia–, a los jubilados del Poder Judicial también se les reduce del monto de su pensión lo tocante a gastos administrativos de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial (“cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo”, según el artículo 239 de la Ley Orgánica del Poder Judicial), el impuesto de la renta (que oscila entre un 10% y un 25%), un porcentaje por concepto de seguro de maternidad y enfermedad de la CCSS (de 5.50%), entre otras sumas.

Concomitantemente, cabe reiterar lo que, sobre el particular, consigna el artículo 5 de la Ley No. 9796 bajo estudio, en el entendido que:

“En ningún caso, la suma de la contribución solidaria y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por esta ley, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión o las pensiones, que por derecho le correspondan al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión o las pensiones, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de las pensiones.” Con fundamento en lo anterior, resulta entonces factible señalar que, a tenor de lo establecido en la hoy vigente Ley No. 9796, al monto de la pensión que reciben los jubilados del Poder Judicial se le pueden aplicar una serie de deducciones -incluido lo tocante a la contribución solidaria-, las cuales, todas sumadas, pueden llegar máximo a un porcentaje del 55%. A contrario sensu, esta normativa permite, en estos últimos casos, que los jubilados de esta institución solamente lleguen a percibir un 45% del monto original devengado por concepto de pensión.

Ahora, en este punto de la presente sentencia, resulta de suma relevancia señalar que si bien –tal y como se explicó líneas arriba–, esta Sala Constitucional ha sostenido que la imposición del pago de una contribución solidaria no es por sí misma inconstitucional, también ha dicho y estimado, en otras oportunidades, que la sumatoria de rebajos realizada al monto de la pensión del jubilado (incluido lo tocante al monto por concepto de contribución solidaria), no puede superar el 50%, de manera tal que, todo porcentaje establecido por demás, sí se traduce en una condición de inconstitucionalidad.

Este criterio fue sostenido primeramente por este órgano constitucional en la ya referida Sentencia 2020-19274, de las 16:30 hrs. de 7 de octubre de 2020 -que corresponde a una acción de inconstitucionalidad formulada en contra de lo dispuesto en las Leyes Nos. 9380, 9381, 9383 y 9388 y mediante la cual, precisamente, se estudió los rebajos realizados a los montos de pensiones de otros regímenes distintos al Poder Judicial por concepto de la contribución especial solidaria-. En esta ocasión, sobre este punto en particular, se indicó expresamente lo siguiente:

“[E]l examen que debe hacerse de las normas que se impugnan en esta acción, debe contemplar un análisis que permita resolver, de primera mano, los legítimos reclamos de las personas pensionadas a tener cierta estabilidad en el derecho, en sus finanzas y a hacer una adecuada ponderación de las necesidades del Estado de actuar dentro de un marco de responsabilidad en la gestión de los recursos que sirven para otorgar estas pensiones. (…)

El Convenio N° 102, de la Organización Internacional del Trabajo, no es un instrumento rígido, pues ofrece un marco que permite a los Estados adoptar sus realidades nacionales a los esquemas protegidos, pero existen ciertas reglas que deben acompañar los esfuerzos nacionales por obtener la universalización de los seguros, con una cobertura que sea razonable y ponderada para los sectores involucrados. Cabe indicar, nuevamente, que al referirse al núcleo duro de un derecho, se hace referencia a aquella parte de los derechos fundamentales en que el Estado no estaría legitimado para interferir o transgredir, porque, en ese caso, estaría infringiendo los derechos y libertades fundamentales, contenidos en la Constitución Política como en obligaciones internacionales adquiridas en los instrumentos internacionales de Derechos Económicos y Sociales. En general, esta Sala entonces debe cuestionarse, en esta acción, si la legislación que aprobó el legislador, mediante las Leyes N° 9380, N° 9381, N° 9383 y N° 9388, es respetuosa o no de la normativa internacional que las partes invocan en las acciones, así como el corpus iuris nacional e internacional que forma parte de la doctrina jurisprudencial de este Tribunal. Esto nos lleva a temas como las obligaciones contenidas en el Convenio N° 102, de la Organización Internacional del Trabajo, en cuanto a los derechos de los beneficiarios, los de buena gobernanza para el mantenimiento y preservación de estos mecanismos de solidaridad intergeneracional.

Es importante señalar, que el Convenio constituye un marco obligatorio de referencia para los Estados; es decir, contiene disposiciones que son la base de las regulaciones que posteriormente pueden aprobar según los diferentes tipos de coberturas a las que se obligaron. No está demás, como se ha indicado en otras ocasiones, que los Estados pueden mejorar esos estándares. Apegado a ese marco regulatorio, la Parte XIII del mencionado Convenio, contempla otras “Disposiciones Comunes” a las coberturas ofrecidas a los asegurados, entre ellas las causas de suspensión, la posibilidad de discutir judicialmente lo referido a los derechos involucrados, así como las reglas que gobiernan en general la administración. Lo que quiere decir que son reglas que amalgaman y unen algunos aspectos de las coberturas; y, en consecuencia, deben considerarse en conjunto algunos de los aspectos administrativos.

De este modo, contiene dos principios torales, el principio de la solidaridad financiera (financiación colectiva y solidaridad financiera en documentos de la Organización Internacional de Trabajo) y el principio de la responsabilidad del Estado, donde el primero enuncia la obligación contenida en el inciso 1), del artículo 71, del Convenio N° 102 indicado, que enuncia:

“El costo de las prestaciones concedidas en aplicación del presente Convenio y los gastos de administración de estas prestaciones deberán ser financiados colectivamente por medio de cotizaciones o de impuestos, o por ambos medios a la vez, en forma que evite que las personas de recursos económicos modestos tengan que soportar una carga demasiado onerosa y que tenga en cuenta la situación económica del Miembro y la de las categorías de personas protegidas...”.

Es decir, esta disposición establece una obligación del Estado de no depositar, en cabeza de los beneficiarios, todo el peso del sistema de prestaciones, y con mayor razón sobre los menos afortunados. De ahí que, la posibilidad para que las prestaciones cubiertas por los Estados conforme al Tratado, puedan ser financiadas con cotizaciones e impuestos (sin ser instrumentos financieros excluyentes), de modo que es una responsabilidad colectiva de los beneficiarios y de la sociedad en la que se contextualiza un régimen. Esto evidentemente obliga a los presentes y futuros beneficiarios con las cotizaciones, como a la sociedad en su conjunto, mediante esquemas de impuestos. Y, principalmente, puede afirmarse que incluye una cláusula de protección al beneficiario más débil, como son las personas de menores recursos, al establecer una salvaguarda que impide gravar a estos beneficiarios.

Por otra parte, el principio de responsabilidad del Estado en la provisión de las obligaciones prestacionales, estaría presente en el mismo artículo 71, pero en el inciso 3), del mencionado Convenio N° 102. Dicha disposición dispone:

“El Miembro deberá asumir la responsabilidad general en lo que se refiere al servicio de prestaciones concedidas en aplicación del presente Convenio y adoptar, cuando fuere oportuno, todas las medidas necesarias para alcanzar dicho fin; deberá garantizar, cuando fuere oportuno, que los estudios y cálculos actuariales necesarios relativos al equilibrio se establezcan periódicamente y, en todo caso, previamente a cualquier modificación de las prestaciones, de la tasa de las cotizaciones del seguro o de los impuestos destinados a cubrir las contingencias en cuestión”.

Es claro cómo el Estado es garante de las pensiones del país. Este numeral establece una serie de obligaciones de garantía del Estado, especialmente el referido al liderazgo en lo que se refiere al servicio de prestaciones concedidas, lo que incluye las formalidades que debe observar cuando ejerce la obligación implícita de vigilar y materializar todas las medidas que involucra la preservación de los fondos de pensiones, incluyendo aquellas correctivas. En este sentido, el faltante en los recursos generados por los problemas en la administración, no podrían ser endilgados y soportados por los beneficiarios; por el contrario, el Convenio establece que el Estado debe garantizar las prestaciones concedidas en todo caso. Como se dirá más adelante, abarcaría todas las prestaciones a las que se comprometió, establecidas por el Convenio N° 102, de la Organización Internacional del Trabajo, especialmente porque se constituyen en el único medio de subsistencia que las personas protegidas pueden llegar a tener por el acaecimiento de las coberturas de la seguridad social.

Ahora bien, interesa, en el caso que nos ocupa, elaborar en sus líneas generales, el inciso 2), del artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo, en cuanto establece lo siguiente:

“El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrá ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una rama especial”.

Un primer punto que debe señalarse, es que este apartado 2), del numeral 71, del Convenio de cita, puede interpretarse en el sentido que los costos para los “asalariados” de todas las contribuciones a su cargo, no podrá exceder un 50%, para cubrir a todos los beneficiarios (asalariado, cónyuges e hijos). Claramente, la regla se refiere a una obligación internacional y a una restricción que los Estados libremente han aceptado, que deben aplicar de buena fe a favor de los beneficiarios, de modo que incluye un tope a la potestad tributaria que el Estado puede exigir a los asalariados, sea en contribuciones e impuestos (inciso 1). Observa este Tribunal, que las disposiciones se refieren a un total “de recursos destinados a la protección”, los que precisamente se obtienen de las contribuciones o impuestos, “o por ambos medios a la vez”. Entonces, se trata de una exigencia globalmente considerada sobre el quantum de los mecanismos de financiación que el Estado puede usar a la hora de ejercer el poder tributario sobre los “asalariados”. Esta conclusión, se puede arribar cuando enuncia el siguiente parámetro normativo: “Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro […], podrán ser consideradas en conjunto…”, salvo las prestaciones familiares y riesgos del trabajo, que sí podrían aumentar la cuota.

Para ilustrar de mejor manera la obligación internacional, es necesario hacer referencia al Estudio General relativo a los instrumentos de la seguridad social, realizado a la luz de la Declaración de 2008 sobre la justicia social para una globalización equitativa, Informe de la Comisión de Expertos en Aplicación de Convenios y Recomendaciones (artículos 19, 22 y 35, de la Constitución), Informe III (Parte 1B), sostenida en la Conferencia Internacional del Trabajo, 100a reunión, 2011, que indica lo siguiente:

“455. Independientemente de las fuentes y los mecanismos de financiación, el Estado “deberá asumir la responsabilidad general en lo que se refiere al servicio de prestaciones concedidas en aplicación del presente Convenio y adoptar, cuando fuere oportuno, todas las medidas necesarias para alcanzar dicho fin” (párrafo 3 del artículo 71 del Convenio núm. 102). La responsabilidad financiera global del Estado se ve complementada y reforzada por su “responsabilidad general de la buena administración de las instituciones y servicios que contribuyan a la aplicación del presente Convenio” (párrafo 2 del artículo 72). Desde un punto de vista financiero, la responsabilidad general del Estado genera numerosas obligaciones conexas, incluidas la necesidad de garantizar que: 1) las tasas de las cotizaciones o impuestos que ingresen al sistema, sin dejar de ser suficientes para financiar el costo de las prestaciones, no constituyan una carga demasiado onerosa para las personas de recursos económicos modestos, las clases específicas de personas protegidas y la economía en general (párrafo 1 del artículo 71); 2) los costos de las prestaciones se distribuyan equitativamente entre los asalariados, sus empleadores y el Estado, de modo que el porcentaje total de las cotizaciones de seguro a cargo de los asalariados para la financiación del sistema que les brinda protección a ellos y sus familias no supere el 50 por ciento, al tiempo que el resto de los fondos provengan de las cotizaciones de los empleadores y de los subsidios del Estado (párrafo 2 del artículo 71); 3) se paguen periódicamente prestaciones adecuadas con cargo al sistema, que no sean inferiores al nivel mínimo establecido por el Convenio (artículos 65, 66 y 67); 4) los ingresos y los costos del sistema se mantengan en un equilibrio financiero bastante estable (artículo 3 del artículo 71), y 5) que se prevean medidas tendientes a minimizar la posibilidad de que los fondos de la seguridad social se utilicen indebidamente, se pierdan o sean objeto de desfalco. El sistema de instituciones públicas encargadas de la supervisión de los regímenes de seguridad social varía según el país…”.

A su vez, se trae a la atención el mismo criterio vertido por la Comisión de Expertos, pero esta vez, respecto del principio de la financiación colectiva, al indicar que:

“443. Una evidente condición previa para que un régimen de seguridad social resulte eficaz es que debe disponer de mecanismos efectivos que le permitan obtener recursos. La certeza, seguridad y adecuación de las prestaciones abonadas con cargo a fondos de la seguridad social dependen de la afluencia regular y sistemática de recursos financieros y plantea la cuestión básica de determinar en qué manera deberían recaudarse tales recursos. Existen, a grandes rasgos, dos opciones principales a tal efecto con miras a lograr un equilibrio entre los ingresos del sistema y las erogaciones que originan las prestaciones: aumentar los recursos necesarios en forma colectiva, es decir, con la participación de todos los miembros de la comunidad o permitir que cada miembro dependa exclusivamente de la acumulación individual de capital, cuya inversión proporcionará las futuras prestaciones. Los instrumentos que se examinan, al igual que todos los convenios de seguridad social actualizados de la OIT, se basan en el principio de la financiación colectiva de las prestaciones, según el cual el costo de las prestaciones, así como los gastos que acarrea su administración deberán ser financiados colectivamente por medio de cotizaciones o de impuestos o por ambos medios a la vez, al tiempo que deberán distribuirse de manera equitativa entre los interesados (párrafo 1 del artículo 71 del Convenio núm. 102). Esta cuestión se puso claramente de manifiesto durante los trabajos preparatorios del Convenio núm. 102: “Por lo tanto, el problema principal relativo a los recursos financieros que debe considerarse en una reglamentación internacional parece ser el de la distribución apropiada de las responsabilidades financieras entre los asegurados, los empleadores y el Estado. […] Forma parte esencial del concepto de la seguridad social que el riesgo considerado debe ser atendido mediante la arrogación colectiva de la carga financiera que representa el pago de prestaciones. Existen diversas combinaciones posibles, de cotizaciones o de impuestos, para llevar a cabo esta idea. La redacción del cuestionario no trata de contrariar estos conceptos, excepto que no permite las soluciones que impliquen recargar demasiado a las personas de escasos recursos. El cuestionario también sugiere la conveniencia de fijar un límite máximo a la participación de los asalariados, a fin de que por lo menos la mitad de los recursos de los sistemas de seguridad social se obtengan en forma más equitativa a través de las subvenciones estatales o de cotizaciones de los empleadores” (citando “Organización Internacional de Trabajo, 1950, Informe IV (1), págs. 134 a 136”).

De igualmente manera, la Comisión de Expertos se asegura de describir la amplitud de opciones que los países pueden acordar al cumplir con las obligaciones de financiamiento de los regímenes de seguridad social, y menciona que:

“444. La Comisión observa que las prácticas nacionales relativas a la financiación de los regímenes de seguridad social muestran una importante gama de opciones, que abarcan desde las cotizaciones tripartitas de asegurados, empleadores y el Estado, hasta los regímenes financiados por las cotizaciones de cada uno de estos actores por separado, así como los programas financiados en forma conjunta por cotizaciones de trabajadores y de empleadores, con o sin subvenciones del Estado. En vista de tal diversidad de políticas nacionales en materia de financiación, el Convenio núm. 102 no intentó <<dar su aprobación a algún método determinado de financiamiento, con exclusión de cualquier otro procedimiento alternativo>>, sino que procuró <<determinar ciertos principios básicos muy amplios, a los cuales pudieran atenderse los deferentes países aun cuando aplique políticas financieras enteramente distintas>> (citando “Organización Internacional de Trabajo, 1950, Informe IV (1), pág. 136”).

Si en el Convenio se establece la necesidad, razonable, precisa y con el objetivo de establecer un sistema solidario, entonces, no se puede cuestionar la necesidad del establecimiento de la contribución y las cotizaciones de los asalariados para el establecimiento y sostenimiento de un sistema de seguridad social. Ello sería parte de la responsabilidad intergeneracional de este tipo de sistemas. El inciso 2), del artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo, está cuidadosamente diseñado para topar la potestad del Estado de exigir contribuciones, cotizaciones, tasas, cargas, rentas e impuestos a los beneficiarios del sistema de pensiones; primero que todo tomando en cuenta la capacidad contributiva, lo que es claro, cuando la norma comentada no deposita todo el peso y la carga en el “asalariado” o en el supra citado informe, “asegurado”. Lo segundo, es que no puede entenderse desligado de los sacrificios históricos individuales del beneficiario para alcanzar aquellos requisitos formales y materiales de acceso al derecho a la pensión. Tercero, la disposición es cuidadosa de distribuir la responsabilidad sobre el régimen entre los diferentes actores sociales, incluyendo al Estado, primordialmente, en su doble papel como empleador y en su condición de administrador y generador de políticas de buena administración.

Pero el caso que nos ocupa, obliga a precisar el significado de la palabra “asalariado” contenido en el inciso 2), del artículo 71, del citado Convenio, pues no parece ser que se refiere sólo a los trabajadores activos. Faltaría por determinar si “asalariado” significa únicamente al trabajador antes de adquirir el derecho a la pensión por el advenimiento de las condiciones formales y sustantivas del derecho, o si es posible, entender que asalariado se refiere también a otro tipo de beneficiario del sistema. En criterio de la Sala, debe darse una interpretación más amplia que incluya no sólo al trabajador activo, para admitir que en efecto, el pensionado o jubilado estaría incluido en este concepto. De hecho, aunque adelantándose a lo que se dirá posteriormente, esta posición es compatible, desde un punto de vista jurídico y económico, en que el pensionado o jubilado recibe un salario diferido que construyó con sus cotizaciones a lo largo de su vida laboral. Incluso, no se puede dejar de considerar que en el documento del Comité de Expertos evoluciona el concepto de asalariados cuando se refiere a “asegurados”. Así, debe asimilarse, dicho concepto, a ambos obligados, como asegurados potenciales y actuales: pensionado y asalariado. Véase, que el estudio citado enfatiza que no hay una camisa de fuerza sobre los Estados, por el contrario, el abordaje debe responder a los contextos nacionales, y no se puede descartar la evolución de los sistemas para acordar un sistema solidario de financiamiento y buena gobernanza dentro del marco y evolución de los derechos humanos, como se dirá más abajo. Si la disposición busca lograr un equilibrio, es perfectamente atendible que debería incluirse a todos los que reciben una suma pecuniaria producto de la prestación acordada, pues en ese sentido, reparte aquella carga sobre todos los participantes, que es lo que realmente busca establecer la norma internacional. Esta interpretación replicaría positivamente con el Comité de Expertos, ya citado. En consecuencia, se debe entender que “asalariado” o “asegurado” tiene una acepción amplia, y que no es un término excluyente de las personas pensionadas o jubiladas.

Establecido lo anterior, que cotizan ambos, entonces, viene como consecuencia natural, el principio de financiación colectiva para este tipo de prestaciones, que como se indicó, consistiría, por una parte en las contribuciones y/o cotizaciones de los asalariados, y patronos; y, por otra, incluye también el apoyo de toda la comunidad: es decir, de la sociedad con la potestad tributaria del Estado. De conformidad con este principio contenido en la norma convencional, se establece que el costo de las prestaciones debe estar distribuido entre los beneficiarios, los empleadores y el Estado (en sentido amplio). Esto trae como consecuencia que los beneficiarios no deben afrontar solos la carga de la administración y el sostenimiento de los regímenes de pensiones, pues para ello, por obligación internacional, deberá estar incluido al universo de los otros interesados, como un sistema integrado de relaciones más equitativas en la población, que tiene como fin evitar que la vejez no implique un empobrecimiento de la población, que ya de por sí, por el proceso natural de envejecimiento, tiene como resultado el hacer a la persona más vulnerable social y económicamente conforme avance en edad.

En el citado artículo 71, hay dos regulaciones relevantes para el caso que nos ocupa, que permite afirmar que hay una doble protección, una que busca no perjudicar a las prestaciones más modestas del sistema; y, otra, el de la solidaridad social y comunitaria, que apalanca el sistema, para evitar que la mitad de la carga del precio económico y de administración no se deposite sólo en los beneficiarios, sino que se constituye en una verdadera obligación internacional del Estado, el de procurar, administrar y dirigir correctamente las prestaciones, proveyendo ingresos de contribuciones e impuestos que permitan una distribución más equitativa de la otra mitad de sus costos. En este sentido, el meollo del problema de constitucionalidad que nos ocupa, radica en establecer si ese porcentaje ha sido superado ilegítimamente, y qué se debe tomar en consideración, si todas las cotizaciones y contribuciones tributarias a los que se vería sometido el pensionado o jubilado, o sólo aquellos que tienen como fin el fondo de pensiones.

En este sentido, como primer punto que debe examinarse, es lo dispuesto en las disposiciones que contemplan la cotización para los trabajadores activos y pensionados y jubilados, establecido en la Ley N° 9380, así como de las contribuciones especiales, solidarias y redistributivas, así como otros impuestos que se aplican a los salarios y pensiones que superen una determinada cantidad de salarios base de la administración pública, en cuyo caso aplicable todos a los montos superiores. Está bajo examen la Ley N° 9380, del 29 de julio de 2016, denominada “PORCENTAJE DE COTIZACIÓN DE PENSIONADOS Y SERVIDORES ACTIVOS PARA LOS REGÍMENES ESPECIALES DE PENSIONES”, que indica:

“ARTÍCULO ÚNICO.- Se reforma el artículo 11 de la Ley N.° 7302, Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, de Otros Regímenes Especiales y Reforma de la Ley N.° 7092, del 21 abril de 1988, y sus Reformas, Ley del Impuesto sobre la Renta, de 8 de julio de 1992. El texto es el siguiente:

"Artículo 11.- […]

En ningún caso, la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por el presente artículo, incluida la contribución especial, solidaria y redistributiva correspondiente, podrá representar más del cincuenta y cinco por ciento (55%), respecto de la totalidad del monto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión".

Cabe transcribir también una regla similar en la Ley N° 9383, del 29 de julio de 2016, denominada “LEY MARCO DE CONTRIBUCIÓN ESPECIAL DE LOS REGÍMENES DE PENSIONES”, en cuanto indica que:

“Artículo 3.- Contribución especial, solidaria y redistributiva de los pensionados […]

En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la presente ley podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión”.

En criterio de la Sala, la normativa infringe los términos del párrafo 2°, del artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo, al establecer un tope mayor al 50% que implica una carga sobre determinados “asalariados” que reciben una prestación económica superior, y la falta del Estado, de formular propuestas contributivas o de impuestos que no superen este monto. A pesar de que el legislador, cuidó de establecer una limitación del 55% respecto de la totalidad del monto bruto de la pensión, se excede en al menos un 5%. En concordancia con la doctrina arriba señalada, esto implica violación al núcleo duro del derecho a la jubilación o pensión, en la medida en que los pensionados y jubilados han visto reducidos sus prestaciones por pensión o jubilación en proporciones aún mayores que lo definido en el Derecho Internacional del Trabajo, soportando más allá de los límites establecidos en la norma convencional (…)” (El destacado no forma parte del original).

En consecuencia, la parte dispositiva de la citada sentencia 2020-19274 -corregida posteriormente mediante la resolución interlocutoria No. 2020-19632, de las 13:33 hrs. de 9 de octubre de 2020-, consignó, en cuanto al extremo de interés, lo siguiente “Por tanto: Por mayoría, se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas. En consecuencia, se anula el porcentaje de cotización y la contribución especial establecidos en las Leyes N° 9380 y N° 9383, ambas de fecha 29 de julio de 2016, en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91, de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia o la paz social, la Sala gradúa y dimensiona el efecto de esta resolución, de modo que, a partir del mes siguiente de la notificación de esta sentencia, la Administración Tributaria deberá realizar el ajuste correspondiente conforme a esta sentencia, de tal manera que la carga tributaria que pesa sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado (…)”.

Al año siguiente, concretamente, mediante la ya mencionada sentencia 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021, esta Sala, con fundamento precisamente de lo dispuesto en la referida Sentencia No. 2020-19274, analizó lo consignado en los anteriormente citados artículos 236 y 236 bis de la Ley No. 9544 (Reforma a la Ley Orgánica del Poder Judicial), específicamente, la indicación contenida en estos referente a que la suma de la contribución especial y el resto de deducciones a aplicarse sobre el monto bruto de la pensión no podía sobrepasar el 55% y sostuvo también su inconstitucionalidad. Lo anterior, conforme los siguientes términos:

“XLI. Redacta el Magistrado Araya García. Una respuesta diferente debe darse al caso que algunos de los accionantes plantean alrededor de este mismo tema, pues apuntan a la invalidez constitucional de la norma contenida en la parte final de los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial reformada por la Ley discutida, ya que -esta vez- reclaman que se regula un tope máximo de un 55 por ciento de deducciones respecto del monto bruto de jubilación, lo cual estiman como excesivo y lesivo del derecho fundamental a la jubilación. Sobre el tema concreto, esta Sala tuvo oportunidad de definir su posición en la reciente sentencia número 2020-19274 de las 16:30 horas del 7 de octubre de 2020, en la que se expuso en su parte resolutiva: (…)

“Por mayoría, se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas. En consecuencia, se anula el porcentaje de cotización y la contribución especial establecidos en las Leyes N° 9380 y N° 9383, ambas de fecha 29 de julio de 2016, en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91, de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia o la paz social, la Sala gradúa y dimensiona el efecto de esta resolución, de modo que, a partir del mes siguiente de la notificación de esta sentencia, la Administración Tributaria deberá realizar el ajuste correspondiente conforme a esta sentencia, de tal manera que la carga tributaria que pesa sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. (…)

Del anterior pronunciamiento concluye, la mayoría del Tribunal, que para del Derecho de Constitución costarricense, no resulta aceptable que la reducción de los montos brutos jubilatorios, exceda un máximo del 50 por ciento fijado en dicha sentencia. De lo anterior, resulta evidente que los artículos 236 y 236 bis, de la Ley Orgánica del Poder Judicial, reformados por la Ley 9544 impugnada, son inconstitucionales, pues ambos fijan un 55 por ciento como tope máximo de deducciones legales, lo cual excede en 5 puntos porcentuales, el máximo establecido por este Tribunal en la sentencia citada (…)

En consecuencia, deben anularse parcialmente la parte final de los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial, reformados por la Ley impugnada, pero única y exclusivamente en cuanto a esos 5 puntos porcentuales de exceso sobre 50 por ciento fijado por esta Sala respecto del tope máximo para deducciones legales sobre los montos brutos de jubilación o pensión (…)” (El destacado no forma parte del original).

En su parte dispositiva, esta última sentencia señaló, en lo que interesa, lo siguiente:

“Por Tanto: (…) En cuanto a los agravios de fondo: Se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) se anula el porcentaje de cotizaciones y la contribución especial solidaria y redistributiva en cuanto excedan el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia, o la paz social, la Sala gradúa y dimensiona los efectos de esta resolución, de modo que, a partir del mes siguiente de la notificación de la sentencia, las autoridades competentes deberán realizar el ajuste correspondiente conforme a esta sentencia, de manera tal que las cargas tributarias que pesan sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. El magistrado Castillo Víquez da razones diferentes. La magistrada Garro Vargas, por sus propias razones, declara con lugar este extremo de la acción de inconstitucionalidad, ordenando anular parcialmente lo dispuesto en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial; asimismo, advierte que la inconstitucionalidad que declara afecta los excesos de la contribución especial solidaria respecto de ese 5% y no el resto de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial. El magistrado Hernández Gutiérrez da razones adicionales. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran sin lugar este extremo, tal y como lo hicieron en la sentencia n.? 2020-19274 de las 16:30 horas de 7 de octubre de 2020, por cuanto, según el texto expreso del artículo 67 del de la OIT C102 de 1952 Convenio sobre la Seguridad Social (norma mínima), la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido de las normas impugnadas (…)”.

Finalmente, cabe apuntar que, más recientemente, mediante sentencia número 2024-6250, de las 16:30 hrs. de 6 de marzo de 2024 -cuya parte dispositiva se corrigió posteriormente mediante la resolución interlocutoria No. 2024-7056, de las 13:37 hrs. de 13 de marzo de 2024-, esta Sala llevó a cabo el estudio de constitucionalidad de la presente ley No. 9796, pero referido exclusivamente a la situación de la persona jubilada del Régimen del Magisterio Nacional. En esta nueva ocasión, con fundamento también en lo dispuesto en la anterior sentencia No. 2020-19274, esta jurisdicción dispuso declarar inconstitucional el citado ordinal 5° de ese mismo cuerpo normativo, en lo que correspondía únicamente a los pensionados del régimen del Magisterio Nacional -dado que en este ordinal se consignaban las deducciones a la pensión de hasta un 55%-, según los siguientes términos:

“POR TANTO Se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas. En consecuencia, se anula el porcentaje de cotización y la contribución especial establecido en el art. 5 de la ley 9796 en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada del Régimen del Magisterio Nacional. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia o la paz social, la Sala gradúa y dimensiona el efecto de esta resolución, de modo que, a partir del mes siguiente de la notificación de esta sentencia, la Administración Tributaria deberá realizar el ajuste correspondiente conforme a esta sentencia, de tal manera que la carga tributaria que pesa sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. El Magistrado Castillo Víquez da razones diferentes. El Magistrado Cruz Castro da razones adicionales. La Magistrada Garro Vargas consigna razones diferentes. En todo lo demás, se declaran sin lugar las acciones de inconstitucionalidad acumuladas. La magistrada Garro Vargas consigna nota. El magistrado Rueda Leal salva el voto y declara inadmisibles las acciones, por cuanto los recursos de amparo que sirvieron como asuntos previos fueron interpuestos cuando la ley cuestionada aún no había sido aplicada a las partes tuteladas; es decir, no constituyen medios razonables a los efectos de estos procesos de control de constitucionalidad. Comuníquese este pronunciamiento a los Poderes Legislativo y Ejecutivo, así como a la Junta de Pensiones del Magisterio Nacional. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese”. El magistrado Salazar Alvarado consigna nota (…)”.

En el presente asunto, como ya se ha dicho, los accionantes cuestionan precisamente ese rebajo de hasta un 55% realizado también al monto de las pensiones, pero circunscrito a la situación de los jubilados del Poder Judicial, lo cual, según se observó, se encuentra estatuido o permitido, ahora, a partir de lo dispuesto, también, en el citado ordinal 5 de la Ley No. 9796.

De este modo, en criterio de este Tribunal y, en consonancia con lo señalado en los anteriores antecedentes, resulta factible indicar, preliminarmente, que la obligación pecuniaria a la que se encuentran sometidos los jubilados del Poder Judicial -a tenor de lo dispuesto en el citado artículo 5 de la ley bajo estudio-, efectivamente resulta inconstitucional, en el tanto el monto a deducir supere el citado 50%. Así las cosas, lo que resulta inconstitucional es ese 5% de más estatuido en la norma bajo examen.

Bajo dicha inteligencia, lo propio, en primera instancia, es anular el porcentaje de cotización y la contribución especial establecido en el artículo 5 de la Ley No. 9796 en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada del régimen del Poder Judicial, de conformidad con las argumentaciones que, sobre el particular, ya ha sostenido esta Sala en los precedentes supra trascritos.

X.- SOBRE LOS AGRAVIOS PARTICULARES EXPUESTOS POR LOS ACCIONANTES. Corresponde ahora, a la luz de las consideraciones vertidas líneas atrás y de los precedentes de este Tribunal Constitucional, realizar un análisis puntual de cada uno de los agravios expuestos por los accionantes. Lo anterior, conforme el siguiente orden de consideraciones:

A. Sobre la violación a los derechos a la jubilación y a la seguridad social. Señalan los accionantes que la normativa en cuestión -mediante la cual se impone la deducción al monto de la pensión de una suma por concepto de contribución especial solidaria-, quebranta el derecho a la jubilación, como parte que es, también, del derecho a la seguridad social.

Sostienen los interesados que, si bien tales derechos pueden ser limitados, dichas limitaciones deben imponerse conforme lo dispuesto en las disposiciones internacionales. Mencionan que la Ley No. 9796 vulnera lo que disponen instrumentos internacionales y que protegen el derecho fundamental a la jubilación, como lo es el artículo 25 del Convenio No. 102 de la OIT, el numeral 5° del Convenio No. 118 de la OIT, los artículos 22 y 25 de la Declaración Universal de Derechos Humanos y el ordinal 16 de la Declaración Americana de los Derechos y Deberes del Hombre, los cuales se refieren a la protección de las prestaciones o de los seguros, principalmente, por concepto de vejez. También, señalan que resulta de especial importancia lo dispuesto en el Convenio 102 de la OIT, que procura la protección de los trabajadores como cotizantes de regímenes de seguridad social, como son los fondos de pensiones; en particular, se refieren al artículo 29, punto 1°, inciso a), que indica a quiénes se les debe garantizar la prestación señalada, a su vez, en el ordinal 28 de ese mismo cuerpo normativo. Por consiguiente, estiman que se ha quebrantado lo que estatuye el ordinal 7 constitucional, el cual establece que los tratados públicos, convenios internacionales y los concordatos (debidamente aprobados por la Asamblea Legislativa), tienen autoridad superior a las leyes.

Para efectos de resolver este primer agravio formulado, resulta menester recordar lo ampliamente explicado por esta Sala en el considerando VIII de la presente sentencia. A partir de lo allí consignado, se reitera, se tiene que efectivamente existe el derecho fundamental a la jubilación, como parte del derecho fundamental a la seguridad social; derechos que, a su vez, no solo están consagrados y protegidos a nivel interno, sino en varios instrumentos internacionales. Asimismo, esta Sala ya ha explicado contundentemente que ese derecho a la pensión y, en particular, el monto por ese concepto, no es absoluto y, por el contrario, puede ser objeto de razonables limitaciones o restricciones, a través de la emisión de una ley formal. Así, dentro de ese tipo de limitaciones se halla la figura de la contribución especial, solidaria y redistributiva, la cual, como también se afirmó, puede ser válidamente impuesta al sector de jubilados. Esta jurisdicción, según los precedentes arriba citados, ha sostenido, entonces, que la contribución especial, solidaria y redistributiva se debe entender como una limitación constitucionalmente válida al derecho a la jubilación.

Ahora bien, el argumento principal de los accionantes es que la normativa en cuestión es contraria a lo que disponen los referidos instrumentos internacionales, por lo que, desde su perspectiva, se produce una lesión al derecho fundamental a la jubilación. Sin embargo, cabe apuntar que de una lectura realizada al contenido de la normativa impugnada mediante este proceso de constitucionalidad, no se logra colegir, per se y, de primera entrada, una arbitraria o evidente contraposición con las normas contenidas en los instrumentos internacionales a los que hacen referencia los accionantes. Tampoco, los interesados –cabe destacar–, explican claramente de qué manera, desde su perspectiva, se produce ese presunto choque que conllevaría a la declaratoria de inconstitucionalidad de las normas bajo estudio.

Nótese, que los ordinales 22 y 25 de la Declaración Universal de los Derechos Humanos expresamente indican lo siguiente:

“Artículo 22. Toda persona, como miembro de la sociedad, tiene derecho a la seguridad social, y a obtener, mediante el esfuerzo nacional y la cooperación internacional, habida cuenta de la organización y los recursos de cada Estado, la satisfacción de los derechos económicos, sociales y culturales, indispensables a su dignidad y al libre desarrollo de su personalidad.” “Artículo 25. 1. Toda persona tiene derecho a un nivel de vida adecuado que le asegure, así como a su familia, la salud y el bienestar, y en especial la alimentación, el vestido, la vivienda, la asistencia médica y los servicios sociales necesarios; tiene asimismo derecho a los seguros en caso de desempleo, enfermedad, invalidez, viudez, vejez u otros casos de pérdida de sus medios de subsistencia por circunstancias independientes de su voluntad. 2. La maternidad y la infancia tienen derecho a cuidados y asistencia especiales. Todos los niños, nacidos de matrimonio o fuera de matrimonio, tienen derecho a igual protección social”.

Por su parte, el artículo XVI de la Declaración Americana de los Derechos y Deberes del Hombre, indica que:

“Toda persona tiene derecho a la seguridad social que le proteja contra las consecuencias de la desocupación, de la vejez y de la incapacidad que, proveniente de cualquier otra causa ajena a su voluntad, la imposibilite física y mentalmente para obtener los medios de subsistencia.” Los numerales 25 y 29, punto 1°, inciso a), del Convenio 102 de la Organización Internacional del Trabajo –Convenio sobre la Seguridad Social-norma mínima– (el cual fue ratificado por Costa Rica) disponen:

“Artículo 25. Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte.” “Artículo 29, punto 1, inciso a):

1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

(a) a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia”.

Finalmente, el ordinal 5° del Convenio 118 de la Organización Internacional del Trabajo –Convenio sobre la Igualdad de Trato-seguridad social– (el cual, cabe aclarar, no ha sido ratificado por nuestro país), estatuye lo siguiente:

“1. Además de lo dispuesto en el artículo 4, todo Estado Miembro que haya aceptado las obligaciones del presente Convenio, en lo que respecte a una o a varias de las ramas de la seguridad social referidas en el presente párrafo, deberá garantizar, a sus propios nacionales y a los nacionales de todo otro Estado Miembro que haya aceptado las obligaciones de dicho Convenio respecto a una rama correspondiente, en caso de residencia en el extranjero, el pago de las prestaciones de invalidez, de las prestaciones de vejez, de las prestaciones de sobrevivencia y de los subsidios de muerte, así como el pago de las pensiones por accidentes del trabajo y enfermedades profesionales, a reserva de las medidas que se adopten a estos efectos en caso necesario de conformidad con lo dispuesto en el artículo 8.

2. No obstante, en caso de residencia en el extranjero, el pago de las prestaciones de invalidez, de vejez y de sobrevivencia del tipo previsto en el párrafo 6, a), del artículo 2 podrá subordinarse a la participación de los Estados Miembros interesados en el sistema de conservación de derechos previsto en el artículo 7.

3. Las disposiciones del presente artículo no se aplican a las prestaciones concedidas a título de regímenes transitorios”.

Como se puede colegir con meridiana claridad, las normas supra transcritas consagran el derecho a las prestaciones por concepto de vejez (pensión o jubilación), lo cual, pareciera no contradecir lo dispuesto en cuanto al derecho a la jubilación, partiéndose del hecho que, como ya se ha dicho, este último puede estar sujeto a limitaciones válidas, como lo es la imposición de una contribución especial solidaria. En ese sentido, se podría válidamente argumentar que los jubilados del Poder Judicial no se están quedando sin su prestación por concepto de vejez -que es precisamente el derecho reconocido en tal normativa internacional-, sino que, únicamente, lo que se les impone, a través de la Ley No. 9796, es una reducción a ese monto, en virtud de la contribución especial solidaria -y la consecuente reducción de las bases exentas de los montos de pensión para que puedan aplicarse las tablas progresivas de la contribución solidaria-.

No obstante lo anterior, también es importante recordar que esta Sala, a partir, concretamente de lo dispuesto en la citada sentencia 2020-19274, de las 16:30 hrs. de 7 de octubre de 2020, fue clara al mencionar que, en el tanto –con motivo de la contribución especial solidaria–, se impongan deducciones al monto de pensión de los jubilados superiores al 50%, sí se estaría incurriendo en una violación y flagrante quebranto al núcleo duro del derecho a la jubilación. Conclusión a la que, según se observó, se arribó especialmente a partir de lo dispuesto en el artículo 71, párrafo 2°, del citado Convenio 102 de la OIT.

En el caso bajo estudio, según se explicó en el considerando anterior, se tiene que el ordinal 5° de la Ley No. 9796 estatuye que a los montos de pensión que perciben los jubilados del Poder Judicial se le pueden realizar deducciones de hasta un 55%, contrariando así el derecho a la jubilación, como parte, a su vez, del derecho a la seguridad social, así como lo dispuesto en el referido instrumento internacional. Esta misma postura, sea, respecto a la vulneración al derecho a la jubilación y al derecho a la seguridad social, cabe mencionar, fue sostenida también por esta jurisdicción hace escasos meses, al examinarse la constitucionalidad de la Ley No. 9796 (en lo que respecta a los jubilados del Magisterio Nacional), a través de la Sentencia No. 2024-6250 de las 16:30 hrs. de 6 de marzo de 2024. En esta última ocasión, se sostuvo que, efectivamente, ese 5% restante deducido de la pensión de los jubilados de ese específico régimen era lesivo de los derechos fundamentales a la seguridad social y a la jubilación.

En adición a lo anterior, conviene rescatar que en la referida sentencia 2020-19274, de las 16:30 hrs. de 7 de octubre de 2020, esta Sala se pronunció, también, a la luz de lo dispuesto en la normativa internacional, sobre esas prestaciones por concepto de vejez a las que hacen referencia los accionantes, y concluyó lo siguiente:

“XI.- Sobre la protección internacional del adulto mayor. En otros puntos de los escritos de los accionantes, se alega la vulneración de varios instrumentos de derechos humanos, para sostener que los artículos 1, 2, 3 y 4, de la Ley N° 9383 y el artículo único, de la Ley N° 9380, atentan contra la red de seguridad social a favor del adulto mayor, y produce una desprotección económica por una disminución abrupta en los ingresos. (…)

Pero, en otra faceta de la discusión, es lo cierto que sí existe una infracción a la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, según la línea que ha venido siguiéndose en esta sentencia.

“Artículo 1.

Ámbito de aplicación y objeto.

El objeto de la Convención es promover, proteger y asegurar el reconocimiento y el pleno goce y ejercicio, en condiciones de igualdad, de todos los derechos humanos y libertades fundamentales de la persona mayor, a fin de contribuir a su plena inclusión, integración y participación en la sociedad.

Lo dispuesto en la presente Convención no se interpretará como una limitación a derechos o beneficios más amplios o adicionales que reconozcan el derecho internacional o las legislaciones internas de los Estados Parte, a favor de la persona mayor.

Si el ejercicio de los derechos y libertades mencionados en esta Convención no estuviere ya garantizado por disposiciones legislativa o de otro carácter, los Estados Parte se comprometen a adoptar, con arreglo a sus procedimientos constitucionales y a las disposiciones de esta Convención, las medidas legislativas o de otro carácter que fueren necesarias para hacer efectivos tales derechos y libertades.

Los Estados Parte solo podrán establecer restricciones y limitaciones al goce y ejercicio de los derechos establecidos en la presente Convención mediante leyes promulgadas con el objeto de preservar el bienestar general dentro de una sociedad democrática, en la medida en que no contradigan el propósito y razón de los mismos.

Las disposiciones de la presente Convención se aplicarán a todas las partes de los Estados federales sin limitaciones ni excepciones”.

Por otra parte, el artículo 4, de la Convención que nos ocupa, establece lo siguiente:

“Artículo 4.

Los Estados Parte se comprometen a salvaguardar los derechos humanos y libertades fundamentales de la persona mayor enunciados en la presente Convención, sin discriminación de ningún tipo, y a tal fin:

a) …

[…]

• d)Adoptarán las medidas necesarias y cuando lo consideren en el marco de la cooperación internacional, hasta el máximo de los recursos disponibles y tomando en cuenta su grado de desarrollo, a fin de lograr progresivamente, y de conformidad con la legislación interna, la plena efectividad de los derechos económicos, sociales y culturales; sin perjuicio de las obligaciones que sean aplicables de inmediato en virtud del derecho internacional.

[…]”.

De igual manera, para engarzar lo transcrito con anterioridad, es relevante para el fundamento de esta sentencia que la Convención también establece que:

“Artículo 17.

Derecho a la seguridad social.

Toda persona mayor tiene derecho a la seguridad social que la proteja de llevar una vida digna.

Los Estados Parte promoverán progresivamente, dentro de los recursos disponibles, que la persona reciba un ingreso para una vida digna a través de los sistemas de seguridad social y otros mecanismos flexibles de protección social.

[…]

Todo lo dispuesto en este artículo será de conformidad con la legislación nacional”.

De estas normas, se tiene claro que el irrespeto al Convenio N° 102, de la Organización Internacional del Trabajo, ratificado por Ley N° 4736 del 29 de marzo de 1971, deriva en el quebranto del derecho a la seguridad social contenido en la Convención Interamericana, cuando los accionantes precisamente alegan que el artículo 25, del mencionado Convenio N° 102, establece que “Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte”; en ese tanto, este Tribunal está reconociendo que existe un tope a favor de los “asalariados”, según se explicó supra, y merece la protección que establece la Convención Interamericana de los Derechos Humanos de las Personas Mayores. De este modo, si se garantiza en esta Convención la plena efectividad de los derechos económicos, sociales y culturales, dentro de los cuales está la seguridad social, no se podría sostener que el legislador permita legítimamente la aplicación de gravámenes tributarios hasta en un 5% de demasía del límite aplicable, toda vez que resulta abiertamente regresivo para los derechos humanos de los beneficiarios, en sí mismo inconvencional, por ser contrario a la Convención Interamericana, como también la Convención N° 102 de la Organización Internacional de Trabajo. En este sentido, se debe arribar a la conclusión que las disposiciones que permiten deducir por encima del 50% del monto bruto de la pensión es irrazonal, desproporcionado e inconvencional, y ello también debe ser declarado en esta oportunidad (…)” (El destacado no forma parte del original).

En virtud de las consideraciones esgrimidas, lo que procede es acoger este extremo de la presente acción de inconstitucionalidad.

B. En cuanto a la confiscatoriedad del monto de la pensión. Sostienen los accionantes que el monto total que se les reduce a los jubilados del Poder Judicial de su pensión -cerca de un 70%, reducido a un 55%, con motivo de lo dispuesto en la normativa impugnada-, deviene en confiscatorio y, por ende, en inconstitucional, por violentar lo dispuesto en el ordinal 40 constitucional. Aducen que la contribución impuesta a este sector resulta inconcebible e insostenible. Señalan que el principio de no confiscatoriedad constituye un límite al ejercicio del poder tributario, vinculado con los principios de capacidad contributiva y progresividad; además de representar un mecanismo de protección del derecho a la propiedad privada.

Al respecto, debe señalarse que esta Sala Constitucional ha sostenido que, en la medida que los montos a deducirse de la pensión (incluido lo tocante a la contribución solidaria), superen el ya citado 50%. sí se está frente a una arbitraria confiscatoriedad. Nótese que en la ya mencionada sentencia No. 2020-19274, de las 16:30 hrs. de 7 de octubre de 2020, esta Sala explicó ampliamente lo siguiente:

“X.- Sobre el alegato de la no confiscatoriedad alegada en las acciones. El principio de no confiscatoriedad, no está expresamente establecido en la Constitución Política, pero se debe derivar implícitamente de la relación de los artículos 18, 45 y 50, de la Carta Magna, como un límite a la potestad tributaria del Estado. La Sala, al delimitar el principio de no confiscatoriedad, ha establecido su relación intrínseca con algunos derechos fundamentales, pero con preferencia con el derecho a la propiedad, especialmente cuando se trata de derechos materiales como también inmateriales. Así, por Sentencia N° 1993-05749 de las 14:33 horas del 9 de noviembre de 1993, esta Sala estableció:

“El estado puede tomar parte proporcional de la renta que genera el particular, para sufragar sus gastos, pero siempre que no llegue a anular la propiedad como tal, como sería el caso de que el tributo absorba totalmente la renta. Si la Consitución (sic) protege el derecho de propiedad al patrimonio integral, no se puede reconocer y admitir que otras disposiciones lo destruyan. Así, para ser constitucionales, los tributos no deben desnaturalizar otros derechos fundamentales, la Constitución asegura la inviolabilidad de la propiedad privada, así como su libre uso y disposición y prohíbe la confiscación, por lo que no se puede permitir una medida de Tributación que vaya más allá de lo razonable y proporcionado. El impuesto es un medio de política económica, que debe armonizarse con el gasto público y la coyuntura económica, y su límite es la capacidad tributaria del particular. La ordenación de los impuestos debe basarse en los principios de generalidad y equitativa distribución de las cargas públicas. La aplicación del principio de igualdad, se refiere a la proporcionalidad de los impuestos, debiendo ser las cuotas desiguales para producir sacrificios iguales, de manera que exista una igualdad relativa respecto de la capacidad de pago, es decir, debe considerarse la capacidad económica del sujeto que debe pagar. Si la Constitución en su artículo 45 establece que la propiedad es inviolable, y en su artículo 40 que nadie será sometido a pena de confiscación, es indudable que el tributo no puede ser tal que haga ilusorias tales garantías. Lo que debemos entender por "parte sustancial de la propiedad o de la renta", es algo que no puede establecerse de manera absoluto; el componente de discrecionalidad o de razonabilidad debe valorarse en cada caso concreto, de manera circunstancial, según las necesidades de hecho, las exigencias de tiempo y lugar, y la finalidad económico-social de cada tributo. Pero sí se puede establecer como principio, que se considera confiscatorio el gravamen que exceda la capacidad económica o financiera del contribuyente, o bien, si el impuesto absorve (sic) una parte sustancial de la operación gravada, y corresponderá al Juez, en cada caso, analizar estas circunstancias, que serán, lógicamente, variables, y lo correcto es analizar esas situaciones en forma concreta”.

De igual manera, esa doctrina se repite en otras sentencias de esta Sala, en la que ha definido el principio de confiscatoriedad; por ejemplo, en la N° 1995-554, de las 16:45 horas del 31 de enero de 1995 -reiterada por la citada Sentencia N° 2003-5276, de las 14:54 horas del 18 de junio de 2003-, entre otras. De lo anterior, es clara la premisa de que los tributos no deben desnaturalizar otros derechos fundamentales, especialmente, cuando la Constitución Política establece la inviolabilidad de la propiedad privada, así como su libre uso y disposición, y la prohibición de la confiscación. Esta última interdicción debe ser entendida como la imposibilidad de despojar a una persona, mediante una pena o exacción desproporcionada, de la totalidad o de una parte importante de sus bienes, por violación a un deber legal o por tributos, para pasarlas a la propiedad del Estado sin indemnización alguna. Se debe afirmar, que corresponde a esta Sala determinar, en cuanto a este principio, si la normativa impugnada tiene alcances confiscatorios, entendido lo anterior, en razón de que la potestad tributaria se excede en gravar una porción de la propiedad (o de un derecho) del obligado tributario que estaría protegido como un derecho fundamental.

Cabe indicar, que el tema involucra un ejercicio de ponderación de potestades públicas y de derechos fundamentales, la intensidad del ejercicio de la potestad tributaria sobre la propiedad, pues tendría como límite el principio de no confiscatoriedad. En este sentido, la progresividad en los tributos encuentra su fundamento en la necesidad de abordar los principios de capacidad contributiva y el de no confiscatoriedad. Lo que para unos podría ser confiscatorio, para otro no, claramente según su capacidad contributiva. La justicia tributaria debe tener estrecho ligamen con el principio de razonabilidad y proporcionalidad, especialmente en el tema que nos ocupa, donde debe cumplirse la máxima de que todos debemos contribuir a los gastos públicos, pero de conformidad con las posibilidades de cada deudor tributario. Si bien con toda razón se debe afirmar que la obligación tributaria no debe agotar la capacidad para generar la renta y la propiedad, es imperativo reafirmar también que los tributos no pueden absorber una parte de las prestaciones de la seguridad social, especialmente cuando éstos se encuentran cubiertos por el derecho internacional, aun cuando como una prestación económica del Estado no han ingresado (o debió haber ingresado) al patrimonio individual. En tal sentido, se debe reconocer que la prestación de dinero que recibe el pensionado, es susceptible de ser gravada, existe un límite -como se ha indicado supra- en la cantidad. De este modo, como lo afirman los accionantes con fundamento en el principio de no confiscatoriedad, no se puede permitir que los tributos absorban, lo que ellos arguyen como la propiedad de las personas, y que la Sala, entiende como la prestación económica que se recibió derivada del derecho a la pensión, y que permite concluir que el dinero que efectivamente ha ingresado a la esfera individual del beneficiario, sería propiedad privada que no podría ser alcanzado retroactivamente por la normativa impugnada. Sin embargo, el problema radica en la deducción que, por demasía (al menos de hasta un 5%), se ha realizado sobre la prestación económica que no debió realizar el Estado, el que por derecho corresponde a los pensionados y jubilados, especialmente, si se ha reconocido esa parte como su derecho a la pensión. En esto nos referimos al 5% de más, respecto de todos los tributos que debe cancelar el pensionado o jubilado.

Ahora bien, en concreto, el problema de relevancia constitucional radica en que con la contribución especial, solidaria y redistributiva, se denota que esta se hace con deducciones escalonadas realizadas sobre un monto bruto, que luego regresan a la caja única del Estado (conforme al artículo 4, de la Ley N° 9383, a financiar el régimen de pensiones y el régimen no contributivo de la C.C.S.S.). A eso se le suma el porcentaje de cotización de pensionados, jubilados y servidores activos, el cual se hace conforme a la norma, de forma gradual de manera proporcional según los montos del salario o de la pensión de que se trate (de un 9% a un 16%), según el párrafo 2°, del artículo 11, de la Ley N° 7302, reformado por la Ley N° 9380. Y como se indicó anteriormente, a estas reducciones se le incluyen otros tributos, como la renta que grava el monto bruto. Es decir, en aquellos casos en que aplica la normativa bajo análisis, claramente produce un efecto de despojar la prestación económica al pensionado (a), mediante exacción que afecta una parte de sus ingresos (hasta en al menos un 5%), por la aplicación de tributos para pasarlas a la propiedad del Estado sin indemnización alguna. Reconoce este Tribunal, que el impacto que ello tiene en la posición económica del adulto mayor, sobre todo de un momento a otro, no supone algo fácil de asimilar, especialmente, cuando se precipita abruptamente la acostumbrada entrada económica en más de un 55%, todo lo cual produce una regresión considerable en la situación económica del adulto mayor. Se ha alegado que esos rebajos contravienen un margen de dignidad y adecuación del adulto mayor en la vejez, y que por lo dicho supra, con el escrutinio de estas normas debe concluirse en que al incumplir con el Convenio N° 102, de la Organización Internacional del Trabajo, falta al deber de proporcionar un monto integral de la pensión.

No cabe duda, para este Tribunal, como se ha dicho líneas atrás, que cuando el Estado exige a los contribuyentes el pago de impuestos, esta exigencia debe cumplir con ciertos estándares. En este sentido, como se discutió con anterioridad, se trataría de parámetros internacionales jurídicamente vinculantes para el Estado costarricense, sobre los cual no puede desconocer o pretender anular, si hay una norma superior que ofrece mayor protección, especialmente en favor de la persona humana. Con esta disposición, el Estado ha reconocido primero el derecho a la pensión de los accionantes conforme al ordenamiento jurídico que promulga, en cuyo caso tienen derecho a recibir una prestación económica como titular del derecho, es decir, un monto de la prestación sin discriminación conforme les corresponde. De igual manera, ese monto estaría sujeto a ciertas condiciones que debe cumplir el marco normativo, para lo cual sería ilícito para el Estado salirse de ellas.

La Sala comprende, del escrito de interposición de los accionantes Ramos Valverde y Pacheco Salazar, así como los coadyuvantes Vargas Aguilar y otros, que se impugna la contribución especial propiamente, la afectación confiscatoria sobre esos ingresos que demerita la dignidad o adecuación de las prestaciones económicas. Sobre este punto, según los datos oficiales, es importante traer a colación la comparación de las prestaciones económicas ofrecidas entre los regímenes nacionales, en el tanto se compara el régimen de pensiones de Hacienda, con otros regímenes, algunos sin y otros con un fondo de cotizaciones. Más aún, el Ministerio de Trabajo y Seguridad Social, así como la Directora Nacional de Pensiones, pretenden evidenciar, con base en la tabla que a continuación se transcribe, que existen diferencias importantes entre el régimen no contributivo, el régimen contributivo básico de pensiones (ambos administrados por la Caja Costarricense de Seguro Social), y el régimen de reparto o pensiones basado en el presupuesto nacional, el cual se sigue manteniendo aún mejor posicionado, comparativamente. Lo anterior sin olvidar que depende en un 90% del Presupuesto Nacional. Ello se evidencia, de la siguiente manera (visible en el informe folios 3795-3814 del expediente):

Régimen No Contributivo (Monto único mensual) Régimen IVM (Monto máximo mensual) ₡78.000,00 ₡1.527.477,00 *Monto promedio de pensión tomando en consideración las 18.700 personas que no estarían sujetas a la contribución especial solidaria y redistributiva.

Se observa de lo anterior, que a pesar de establecer una comparación entre un régimen básico como el de la Caja Costarricense de Seguro Social, respecto del monto de la pensión que se tomaría de ejemplo, del accionante Ramos Valverde del Régimen de Hacienda modificado por la legislación impugnada, los montos recibidos muestran aún un mejor posicionamiento económico en más de 2.3 veces. No obstante, las autoridades lo comparan con el Régimen de la Caja Costarricense de Seguro Social, con ello se comparan sistemas diferentes, uno donde si hay un fondo constituido, con sus respectivos mecanismos de cotización, inversión de fondos y reservas, que no está bajo examen, pero evidentemente, no es lo mismo que el de reparto “puro” basado en el Presupuesto Nacional, como bien lo argumentan los accionantes y lo explican las autoridades. Si bien, las autoridades demuestran que en el Régimen de Hacienda mejora la prestación económica del pensionado, es un sistema que opera sin un fondo formalmente constituido, que comparado con aquel protegido bajo el esquema básico nacional amparado a la Caja Costarricense de Seguro Social y otros sustitutivos, ese argumento deja de lado un aspecto de real relevancia como es el nivel de cotizaciones salariales que se hizo en el sistema para un fondo, cartera de inversiones, como sucede con otros, como el del Magisterio Nacional, Poder Judicial, entre otros, que no se está tomando en cuenta.

Por otra parte, se ilustra que dentro del mismo Régimen de Hacienda, las pensiones superiores mejoran el promedio de aquellas que no superarían la base contributiva de la norma impugnada, cuyo monto medio de ₡464.641.20 aún estaría superada en 7.55 veces. La comparación utiliza como referentes un universo de pensionistas (18700) por debajo de los diez salarios de referencia frente a un referente individual, comparación que pretende demostrar la reacción del Estado, que debe analizarse con mayor profundidad. Precisamente, se diseña una contribución especial, solidaria y redistributiva de los pensionados y jubilados, para producir una importante disminución de ingresos a un grupo pequeño de jubilados, motivado en un contexto de contracción significativa de la economía nacional, que exigía la revisión del sistema de pensiones y la necesidad de delimitar ciertas pensiones. Pero lo anterior, se alega, afecta la acostumbrada prestación económica que se venía recibiendo por parte de los (de las) pensionados (as) y jubilados (as), por lo que necesita demostrarse que existe una justificación razonable y proporcional sobre la totalidad de la prestación económica que se pretende afectar, pese a que mediante esa legislación se reduce un ingreso por encima de los límites establecidos en los estándares que el propio país se comprometió con el Convenio N° 102, de la Organización Internacional del Trabajo.

Lo que debe analizarse de la normativa es la razonabilidad de los porcentajes y el efecto que estos tienen, especialmente porque el valor de la pensión recae sobre el rubro en bruto, lo que supone que diversas exacciones coactivas operan sobre la pensión, los que superarían los costos totales permisibles de gravar, y se debe cuestionar si se produce la infracción al principio de no confiscatoriedad en el tanto que se encuentra en contra del derecho establecido en la Convención, en cuanto supera el 50%. En ese sentido, habría que determinar si en la aplicación, por las consecuencias o efectos habría una inconstitucionalidad en la razonabilidad técnica y en la proporcionalidad. La Sala estima que todo lo anterior produce una reducción significativa, de aquella parte neta de la prestación, luego de aplicar los porcentajes de las contribuciones que correspondan y los montos de la cotización que deban cancelar. Pero, con estos otros pagos que correspondan, conforme esta Sala estableció supra, todos los tributos considerados en conjunto no pueden superar el 50%, como impuestos, tasas, contribuciones, cotizaciones, rentas y deducciones de ley, pues ello no solo quebrantaría el principio de solidaridad comunitaria, sino que también los principios constitucionales de razonabilidad y proporcionalidad; además, como parámetro, de la infracción al párrafo 2°, del artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo.

En cuanto a la exigencia de tributar más, debe decirse que el diseño de las disposiciones impugnadas parte de un parámetro fijo compuesto de diez veces el salario base más bajo pagado en la Administración Pública, según la escala de sueldos de la Administración Pública emitida por la Dirección General de Servicio Civil. Es decir, existe un mínimo exento cuantificado por la legislación, que se amplía según baje el salario base fijado. Si el monto bruto del pensionado supera esa cuantía, la ley ordena aplicar un gravamen escalonado y progresivo contenido en la disposición.

Entonces, el artículo 3, de la Ley N° 9383, establece lo siguiente:

“a) Sobre el exceso del monto resultante de diez veces el salario base más bajo pagado en la Administración Pública, según la escala de sueldos de la Administración Pública emitida por la Dirección General de Servicio Civil y hasta por el veinticinco por ciento (25%) de dicha suma, contribuirán con el veinticinco por ciento (25%) de tal exceso.

• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta y cinco por ciento (55%) de tal exceso.
• e)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un sesenta y cinco por ciento (65%).
• f)Sobre el exceso del margen anterior contribuirán con un setenta y cinco por ciento (75%)”.

Como se ve, la norma contempla una contribución acumulativa y progresiva donde el tributo total dependerá del monto de la pensión que supere los diferentes tractos establecidos por la disposición (lo que mantendría relación con la capacidad contributiva). Como se dijo supra, el parámetro base para esta imposición se establece en el monto compuesto a partir de los diez (10) salarios base, posteriormente incrementado en un 25%, para finalmente gravar las diferencias entre las pensiones que quepan en el parámetro base y el superior. De este modo, se transita de conformidad con el monto bruto de la pensión del respectivo interesado, y dependerá si la suma se encuentra dentro de un tramo o tracto, y si lo supera, cae en otra exacción. Así, se aplicaría el 25%, 35%, 45%, 55%, 65%, y 75%, respectivamente, según cada tramo con respecto a las diferencias.

La importancia de la explicación anterior, es porque la norma grava un exceso de los diez salarios mínimos indicado supra, aumentando la obligación tributaria del gravamen conforme el monto de la pensión supera el exceso previamente definido, lo que significa que entre más es el monto percibido mayor será la obligación contributiva. El problema de la norma tiene que ver con el efecto acumulativo e incrementado que tiene con este y otros impuestos de similar naturaleza (que gravan la renta bruta), toda vez que la norma impugnada concluye en que en ningún caso la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la presente ley podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión”. De este modo, establece un gravamen total hasta de un cincuenta y cinco por ciento (55%), lo cual, estaría superando lo permitido en el inciso 2), del artículo 71, del Convenio de la Organización Internacional del Trabajo, que fija el establecimiento de los costos de las pensiones en un 50%, con ayuda de los impuestos y contribuciones de la comunidad considerada en su totalidad, no solo de los trabajadores y pensionados y jubilados. Esto implica que el deudor tributario, en este caso, el pensionado, estaría aportando aún más impuestos con el de la renta, que implicaría mayores costos y deducciones en su caso, incluso un mayor sacrificio exigido por la sociedad.

Por lo expuesto, la mayoría de esta Sala estima que la acción debe declararse con lugar sobre este extremo, tal como se consignará en la parte dispositiva de la sentencia (…)” (El destacado no forma parte del original).

Por su parte, en la sentencia No. 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021 -dictada, como se ha dicho reiteradamente, a propósito de lo consignado, entre otros, en los artículos 236 y 236 bis de la Ley No. 9544-, esta Sala, luego de citar el anterior voto No. 2020-19274 (en lo tocante al alegato de confiscatoriedad), manifestó que la carga entonces impuesta a los pensionados del Poder Judicial “(…) solo resulta confiscatoria en cuanto exceda el 50% de las cargas que deba soportar una persona sobre su pensión o jubilación (…)”.

Adicionalmente, en la reciente Sentencia No. 2024-6250 de las 16:30 hrs. de 6 de marzo de 2024, esta Sala reconfirmó su postura sobre este punto en especial y, al referirse al contenido del ordinal 5 de la Ley No. 9796 bajo estudio -específicamente, en lo que respecta a los jubilados del Régimen del Magisterio Nacional-, sostuvo que si bien el hecho mismo de contribuir con los rubros en cuestión no podía ser tildado de inconstitucional (habida cuenta que las prestaciones económicas superiores se gravaban de forma escalonada de conformidad con la capacidad contributiva), lo cierto era que, conforme los precedentes de la Sala, esa misma contribución tenía un límite de un 50%, por lo que, ese 5% restante, sí devenía en confiscatorio.

Así las cosas, a tenor de lo analizado en la presente acción de inconstitucionalidad respecto al caso concreto de los pensionados del Régimen del Poder Judicial, esta Sala concluye que el porcentaje de 5% adicional con el que estos deben contribuir, a tenor de lo dispuesto en la Ley No. 9796, ciertamente resulta confiscatorio y, por consiguiente, violatorio de sus derechos fundamentales.

C. Sobre el reclamo de una doble imposición tributaria respecto a un mismo fin. Aparejado al agravio anterior, los accionantes aducen que el monto de la pensión de los jubilados del Poder Judicial sufre un doble gravamen, lo cual resulta improcedente, dado que, además de la contribución solidaria, se aplican deducciones por otros conceptos, como lo es el 13% de cotización obligatoria al régimen y el impuesto sobre la renta Alegan que se aplica una doble tasa impositiva “sobre un mismo beneficio”.

Esta Sala, en la sentencia No. 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021, zanjó esta disconformidad de los accionantes, al realizar un análisis –a tenor de lo establecido en la Ley No. 9544–, del ordinal 236 de la Ley Orgánica del Poder Judicial. donde se contempla la deducción al monto de la pensión de un 13%- y lo estatuido, concomitantemente, en el artículo 236 bis de esa misma ley orgánica -respecto a la deducción por concepto de contribución especial solidaria-. El contenido y fines de estas normas, en lo que se refiere a este punto y agravio en concreto, no sufrieron un cambio, al emitirse la ahora impugnada Ley No. 9796. De ahí que, los razonamientos expuestos en dicha ocasión por esta Sala Constitucional, puedan ser nueva y válidamente utilizados para resolver este extremo de la presente acción de inconstitucionalidad. En esta oportunidad, esta jurisdicción expuso lo siguiente:

“XLVII. Redacta la Magistrada Hernández López. La contribución especial, solidaria y redistributiva y el reclamo por doble imposición para un mismo fin.- Los accionantes argumentan que la contribución especial, solidaria y redistributiva creada a favor del Fondo de Jubilaciones y Pensiones del Poder Judicial implica para el servidor judicial, pero también para el jubilado o pensionado judicial, una doble imposición pues además de estar obligado a mantenerse cotizando un 13% de sus ingresos para el fondo, ahora se le obliga también a cotizar entre un 35% y 55%, lo que estiman inconstitucional. La Procuraduría General de la República considera que no existe en este caso una doble imposición, pues debe distinguirse la cotización al fondo que se impone a todos los beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial, de la llamada contribución especial, solidaria y redistributiva que se impone solamente a los jubilados y pensionados que reciben prestaciones económicas que superan el tope establecido de diez veces el salario base del puesto más bajo pagado en el Poder Judicial; contribución que además es proporcional y progresiva, y tiene una naturaleza distinta a la de la cotización, por lo que no se estima que sea contraria a la Constitución Política. (…) Para el Tribunal, la figura de la contribución especial, solidaria y redistributiva no se configura constitucionalmente como una doble imposición, pues en su diseño original (previo a la reforma operada por la ley número 9796) atiende a un fin separado de aquel perseguido por la cotización general impuesta a todos los beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial para lograr su sostenimiento y funcionamiento normal. A diferencia de esta cotización general, el Tribunal tiene claro que la citada norma 236 bis buscó gravar las sumas excedentes del tope máximo de jubilación o pensión a pagar por el régimen, fijado por el artículo 225 de la Ley Orgánica del Poder Judicial en 10 veces el salario base del puesto más bajo pagado en el Poder Judicial, en el entendido de que tales excesos se presentaban en un grupo finito y determinable de jubilaciones y pensiones otorgadas conforme a las reglas del anterior régimen (sea en curso de pago o las declaradas pero suspendidas en su disfrute) y por ello claramente temporales en su aplicación y no soportables con el esquema de aportación establecido para el nuevo diseño. De tal forma, el gravamen constituido en el artículo 236 bis cuestionado para gravar los excedentes resultaba requerido, pero no para contribuir al sostenimiento de los egresos normales presupuestados en el nuevo régimen, sino para evitar el desbalance ocasionado por el deber jurídico del Fondo, de atender ciertos egresos heredados del régimen anterior y exorbitantes al nuevo diseño. Bajo este criterio, no existe entonces una doble imposición desde la perspectiva constitucional, pues la finalidad de los dos gravámenes está claramente diferenciada, siendo la cotización del 13 por ciento una carga permanente y con la finalidad de sostener financieramente el fondo y asegurar sus prestaciones, mientras que el aporte especial y solidario del artículo 236 bis, resulta específico y temporal en su propia concepción, (al menos antes de la reforma operada por la 9796) y estaba dirigido a amainar el impacto económico de asumir la carga de las jubilaciones y pensiones del régimen anterior, tanto las que se encuentran en curso de pago, como aquellas ya declaradas en su momento, pero pendientes de su efectivo disfrute por parte de los beneficiarios. (…)

En el caso en estudio, la carga impuesta tiene -según se ha analizado- una finalidad válida, se dirige a gravar una capacidad económica indiscutible y es progresiva en su diseño. Además, solo resulta confiscatoria en cuanto exceda el 50% de las cargas que deba soportar una persona sobre su pensión o jubilación, tal como se explicó supra.

En conclusión, el Tribunal estima que el artículo 236 bis de la Ley Orgánica del Poder Judicial, no configura un supuesto de doble imposición constitucionalmente prohibido (…)” (El destacado no forma parte del original).

El anterior estado de cosas no varió, en criterio de esta Sala, con la emisión de la Ley No. 9796 -y se entiende que las advertencias consignadas en el voto transcrito respecto a la promulgación de esta última normativa se emitieron únicamente en términos de aclaración para el lector-; de ahí que, el precedente transcrito resulte plenamente aplicable para este asunto.

En adición a lo anterior, conviene señalar que en la reciente sentencia No. 2024-6250, de las 16:30 hrs. de 6 de marzo de 2024, esta Sala descartó también que, mediante la Ley No. 9796 -y su imposición concreta, en ese caso, a los pensionados por el régimen del Magisterio Nacional-, la contribución solidaria representara más allá de una doble imposición tributaria. En esta ocasión, la Sala explicó que el hecho de cotizar al fondo, colaborar con la contribución solidaria y, a su vez, pagar el impuesto sobre la renta -lo cual, concretamente, es lo que señalan los accionantes en este proceso-, no era, en sí mismo, lesivo del Derecho a la Constitución, y se aclaró que ese triple pago ya había sido avalado por esta Sala -sentencias 1999-5236 y 2001-2235-. Además, en esta reciente sentencia se dijo que esas tres aportaciones no eran exclusivas del Régimen Transitorio de Reparto, puesto que el resto de regímenes especiales de pensiones tenían similares cargas, según sus características y criterios regulación especiales.

De este modo, al descartarse la inconstitucionalidad, en la especie, de una doble o hasta triple imposición tributaria en perjuicio de los jubilados del Poder Judicial -concretamente de aquellos cuyo monto de pensión supere los seis salarios base del puesto más bajo pagado en dicha institución-, este extremo de la acción merece ser igualmente desestimado.

D. Tocante al presunto quebranto al principio de no retroactividad en perjuicio y consecuentemente al principio de seguridad jurídica. Acusan también los accionantes que lo dispuesto en la Ley No. 9796 violenta los derechos adquiridos de todos aquellos funcionarios judiciales que cotizaron y les fueron otorgadas pensiones con los lineamientos dictados por el Fondo de Pensiones de la Ley Orgánica del Poder Judicial. Por ende, afirman que “esos derechos deben continuar tal como se otorgaron antes de la promulgación de la ley, de lo contrario, se violentarían derechos legalmente otorgados”. Indican que las pensiones ya otorgadas se traducen en derechos adquiridos, siendo que, por imposición de la ley, se está conduciendo a los pensionados a niveles de menor ingreso. Señalan que los estudios hechos no indicaron que la fijación a imponerse fuera retroactiva, sino, solamente, a futuro. Sostienen finalmente que, desde el momento en que se ingresa al régimen jubilatorio, el trabajador queda protegido (no solo por las reglas y criterios legales y reglamentarios del propio régimen), sino también por las normas y principios constitucionales que consagran el derecho a la jubilación, como lo es, por ejemplo, lo estatuido en el artículo 34 constitucional. En consuno con lo anterior, los accionantes consideran que se violenta el principio a la seguridad jurídica, por cuanto, las variaciones que impuso la ley quebrantan la confianza y la seguridad de los funcionarios judiciales.

Ahora bien, en cuanto a este agravio en particular, resulta oportuno señalar que este órgano constitucional igualmente ya ha emitido criterio, al referirse, como se ha dicho repetidamente en esta sentencia, a otros supuestos similares al ahora sometido a estudio. Así, cabe apuntar que en la sentencia No. 2020-19274, de las 16:30 hrs. de 7 de octubre de 2020, esta Sala explicó amplia y contundentemente los motivos por los cuales la imposición de la contribución solidaria no quebrantaba propiamente lo dispuesto en el artículo 34 de la Carta Magna, sea, el principio de irretroactividad de la ley. En tal ocasión, de modo expreso, se indicó:

“XIII.- Sobre el alegato de la irretroactividad de las reformas. En este sentido, cabe señalar que la jurisprudencia de la Sala, en un asunto relacionado con el tema que nos ocupa, zanjó sin afectar la potestad indudable del legislador de modificar o reformar las leyes. La discusión planteada por los accionantes, precisamente radica en cuáles son las medidas legislativas que se le pueden aplicar a los pensionados y jubilados a partir de la reforma legal operada por las normas impugnadas.

De este modo, la Sala estableció, en la Sentencia N° 2018-19030 de las 17:15 horas del 14 de noviembre de 2018, que:

“XI.- Sobre la alegada violación al principio de irretroactividad. El accionante acusa lesión al principio de irretroactividad tutelado en el artículo 34 de la Constitución Política, por cuanto las normas cuestionadas pretenden aplicar sus efectos -Ley número 7858- a las pensiones, sin distinguir la fecha en que éstas fueron otorgadas. Ahora bien, previo a entrar analizar el fondo de dicho reclamo, conviene hacer alusión a lo expresado por esta Sala con respecto al tema de la aplicación del principio de irretroactividad a las pensiones. Al respecto, en las sentencias números 2379-96 de las 11:06 del 17 de mayo de 1996 y 2765-97 de las 15:03 del 20 de mayo de 1997, antes citadas, se estableció, en lo que interesa, lo siguiente:

“XI.- SOBRE LA VIOLACIÓN AL PRINCIPIO DE IRRETROACTIVIDAD. La relación existente entre el derecho fundamental a la jubilación y el artículo 34 Constitucional ha sido delineada por la Sala, la cual ha expresado que el primero toma diversa apariencia y denominación según que el funcionario cumpla con ciertas condiciones, las que normalmente se suceden en el tiempo. Así, el derecho de jubilación se manifiesta primeramente bajo el nombre y la forma de "derecho de pertenencia al régimen" desde el ingreso del funcionario al sistema y hasta que acontece el evento consistente en el cumplimiento de los requisitos necesarios para la obtención del beneficio. Luego, deja ese ropaje para pasar a llamarse "derecho a la prestación actual", una vez que ha ocurrido aquella señalada eventualidad (confróntese la resolución 1147-90 de las doce horas del veintiuno de setiembre de mil novecientos noventa). Con lo anterior, quieren acentuarse dos cosas: a) que durante todo el tiempo el derecho fundamental a la jubilación es y ha sido siempre uno y el mismo, y no cambia en sus características de esencia, mismas que permanecen como parte integrante de su composición a pesar de las distintas modalidades que pueda presentar exteriormente; b) que es a ese núcleo, sin los accidentes que se le agregan en el momento de su concreción y llamado simplemente derecho constitucional a la jubilación, al que reconoce la Sala como derecho adquirido del accionante. Ahora bien, si como se expuso en el considerando segundo de esta sentencia, aceptamos que una de las características esenciales del derecho a la jubilación es la de poder ser limitado o condicionado en los términos en que allí se explicó, se puede concluir que la inclusión del derecho de jubilación en el acervo de derechos adquiridos por el accionante, también incluyó -a modo de posibilidad jurídica- la facultad para el ejercicio de limitaciones o condicionamientos al citado derecho, porque tal facultad a ejercer por el Estado, forma parte propia de su estructura y composición. En otros términos, el hecho de que al accionante se le reconozca como derecho adquirido desde su ingreso al régimen el derecho a la jubilación, no puede implicar una desaparición de los atributos y condicionamientos que forman parte intrínseca de él -incluyendo por supuesto las que puedan resultar restrictivas para el beneficiario- de modo que todas esas características perviven como un conjunto indeterminado de cláusulas presuntas o implícitas, que están insertas dentro de cualquier régimen o sistema de concreción del derecho a la jubilación y que, por ello mismo, son potencialmente aplicables al accionante en cualquier momento y mientras pertenezca al régimen. Y no podría ampararse en el artículo 34 de la Constitución Política para oponerse a su aplicación, dado que no se trata de una nueva normativa sino del ejercicio efectivo de una implícita facultad de variación existente desde el momento de ingreso al régimen”.

“En ambos casos (derecho adquirido o situación jurídica consolidada), el ordenamiento protege ‑tornándola intangible‑ la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y de certeza jurídica. En este caso, la garantía constitucional de la irretroactividad de la ley se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de sustraer el bien o el derecho ya adquirido del patrimonio de la persona, o de provocar que si se había dado el presupuesto fáctico con anterioridad a la reforma legal, ya no surja la consecuencia (provechosa, se entiende) que el interesado esperaba de la situación jurídica consolidada. Ahora bien, específicamente en punto a ésta última, se ha entendido también que nadie tiene un "derecho a la inmutabilidad del ordenamiento", es decir, a que las reglas nunca cambien. Por eso, el precepto constitucional no consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior; lo que significa es que ‑como se explicó‑ si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. Esto es así porque, se dijo, lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla.

Aplicación al caso concreto. En el sub examine, es viable ejemplificar los conceptos anteriores a partir, precisamente, de los elementos del caso concreto. Bajo el imperio de los artículos 167 a 169 del Estatuto de Servicio Civil, existía una regla jurídica, creada por el legislador: en presencia de una enfermedad incapacitante (hecho condicionante), el maestro o maestra que la sufriese tendría derecho a una licencia y al pago de un auxilio equivalente a la totalidad del salario, por todo el plazo de la incapacidad ‑que podría ser incluso indefinido‑ aunque sujeto a revalidaciones anuales, previa constancia médica (efecto condicionado). Esta regla desapareció en virtud de la derogatoria que de esas normas realizó la ley nº 7531, la cual ordenaba además que, dentro del improrrogable lapso de seis meses a partir de su vigencia, los beneficiarios de las licencias debían optar por una pensión de invalidez o bien reintegrarse al trabajo. Entonces, ejemplificando ‑y, a la vez, aplicando‑ los elementos de juicio expuestos supra, se puede decir que:

La protección de los derechos adquiridos significa, en este caso, que no obstante la eliminación de las normas, todos los montos recibidos hasta entonces por concepto de auxilio, deben estimarse irrepetibles. En la medida en que habían ingresado definitivamente al patrimonio de los interesados con anterioridad a la reforma legal, resultaría absurdo ‑e inconstitucional‑ pretender que deban ser devueltos, o cosa semejante. Y, (sic)

La tutela de las situaciones jurídicas consolidadas implica que, si bien los interesados no podían pretender que las normas en cuestión (y, con ellas, la regla que creaban) no pudiesen ser nunca más objeto de reforma o incluso, como ocurrió, de derogatoria, sí tenían derecho a esperar que, respecto de ellos mismos y de todas las demás personas que estuviesen sometidas al mismo estado de cosas, se produjese o produzca la consecuencia que anticipaban. Ese estado de cosas estaba caracterizado por la regla que conectaba causalmente su situación fáctica (enfermedad incapacitante) con el efecto previsto en la ley (el disfrute, hasta por lapso indefinido, de una licencia y el pago del auxilio pecuniario correspondiente). El hecho de que la regla haya desaparecido ‑cosa que el legislador tiene potestad indudable para hacer‑ no puede tener la virtud de producir que para ellos ya no surja la consecuencia a la que ya tenían derecho. Esto sólo podría ocurrir, ex nunc, para quienes, a la fecha de la reforma legal, no hubiesen adquirido ese título”.

Adoptando como marco de referencia lo dispuesto en los precedentes de cita, la Sala considera que la normativa cuestionada no resulta per se contraria al principio de irretroactividad, pues es claro que el legislador cuenta con la potestad de variar las condiciones o requisitos bajo las cuales se otorga una jubilación -la persona aún no ha consolidado el derecho-, cuando estime que resulte necesario para garantizar la sostenibilidad financiera de un determinado régimen, o cuando haya una diferencia entre los ingresos que se perciben y el pago de las jubilaciones en curso, en tutela de los principios que rigen la Seguridad Social, una especie, en este último caso, de un tope de contingencia.

No obstante, y sin demérito de lo externado anteriormente, conviene aclarar que sí resultaría violatorio del artículo 34 constitucional, el hecho de que se pretendan aplicar los efectos de la ley a los supuestos de hecho, condiciones o requisitos para obtener una jubilaciones o pensiones, a aquellas personas que ya hubiesen obtenido ese beneficio con anterioridad a su entrada en vigencia, salvo un caso extraordinario, tal y como se expresó supra. Esto, por cuanto como se estableció en los votos mencionados, el jubilado tiene derecho a que se respeten las condiciones y reglas bajo las cuales obtuvo su pensión, es decir, que se mantengan las condiciones que la ley preveía para él al momento en que se consolidó su situación jurídica. Es necesario aclarar que el monto mensual de las jubilaciones o pensión en curso que recibe la persona no es un elemento que no se pueda afectar, pues el legislador, en ejercicio de la potestad tributaria, puede gravarlas, tal y como se ha hecho recientemente, extremo sobre el cual este Tribunal no emite ningún pronunciamiento, pues será en las acciones de inconstitucionalidad que se han presentado sobre este extremo y otros –véase el expediente judicial 2017-001676- donde se fijará una postura sobre los alcances y límites de la potestad tributaria en la materia.

En razón de lo expuesto líneas atrás, esta Sala estima que resulta necesario hacer una interpretación conforme de la Ley número 7858, en el sentido de que ésta no resulta violatoria del principio de irretroactividad, siempre y cuando se interprete que sus efectos únicamente son aplicables a aquellas personas que hubieran obtenido el derecho de jubilación con posterioridad al 28 de diciembre de 1998, fecha en que la norma de cita entró en vigencia, luego de que fuera publicada en el periódico oficial La Gaceta número 251, por la elemental razón de que quienes obtuvieron el derecho a la jubilación después de esa fecha, se les debe aplicar la regla vigente, sea el tope máximo cuando se llegara a cumplir la condición establecida por la ley, la que ha sido debidamente acreditada por la Contabilidad Nacional. Se aclara que este Tribunal considera necesario dimensionar la sentencia en el sentido de que esta interpretación surtirá efectos a partir de su publicación íntegra el Boletín Judicial, de forma tal que en el eventual caso de que la Administración Pública y los tribunales ordianrios (sic) llegaran a la conclusión de la norma impugnada, la directriz y la resolución están vigentes, el tope se aplicará hacia futuro y no ahcia (sic) el pasado, por lo que la Administración no podría cobrar ninguna suma que los jubilados y pensionados hayan recibido con anterioridad al día que se haga la publicación referida”.

Para dilucidar el problema de relevancia constitucional que nos ocupa, resulta esencial definir los efectos jurídicos que tendrían las reformas: es decir, si son ex tunc o ex nunc. Si bien los accionantes, a lo largo de los libelos de interposición de las acciones, reclaman el derecho a la intangibilidad del patrimonio (lo cual ha sido abordado en esta sentencia con anterioridad), entendido por ellos como la imposibilidad de modificar los montos de las pensiones que reciben en el presente y futuro, consecuentemente reclaman que no se puede modificar la prestación mensual de las jubilaciones o pensiones, en el criterio de esta Sala, ello no es posible, a la luz de la doctrina del artículo 34, Constitucional, y la interpretación jurisprudencial de este Tribunal (salvo el supuesto de mejoramiento). La jurisprudencia de la Sala, transita en sentido contrario a como lo hacen los accionantes, reafirmando que el legislador puede modificar o reformar las disposiciones legislativas, lo que plantea un problema de efectos o consecuencias de las normas para sus destinatarios, dentro de las respectivas coordenadas del tiempo y espacio. Como es propio de toda normativa que cumple con las formalidades materiales y sustanciales, rigen desde el día que ellas designen, o a falta de ello, diez días después de su publicación en La Gaceta (artículo 129, Constitucional). Por ello, la pretensión de mantener la vigencia del derecho abolido no es siempre de recibo, pues la jurisprudencia de la Sala, afirma que la protección contra la irretroactividad de las normas “no consiste en que la regla de derecho una vez vigente, que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior (pues sería aceptar la inmutabilidad del derecho); lo que significa es que se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla no podrá tener la virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior[…] lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla”. Así, a lo que se tiene derecho son a las consecuencias, y no a la norma especialmente si es derogada o modificada.

De este modo, no hay posibilidad de reclamar la inmutabilidad del derecho, el cual opera, en el caso de las pensiones, si encuentra esos fundamentos en criterios técnicos-actuariales, en la necesidad de establecer un buen equilibrio financiero, incluso, como se afirmó en el antecedente arriba citado que examinó la constitucionalidad de la Ley N° 7858 (Sentencia N° 2018-19030 de las 17:15 horas del 14 de noviembre de 2018), en el que esta Sala estableció -como obiter dictum- que sí se podía afectar los montos mensuales mediante la potestad tributaria del Estado. En este sentido, a lo largo de esta sentencia, se ha establecido que sí es posible hacerlo por parte del legislador. Si bien, no podría dictarse una norma que revocara la prestación de la pensión a pesar de haberse obtenido cumpliendo con las reglas formales y materiales del régimen de pensión (especialmente por las cotizaciones pagadas y recibidas en un fondo de pensiones), o que condicionara la prestación agravándola con exigencias que la harían inexigible para el adulto mayor a pesar de haberse obtenido legítimamente. Incluso en supuestos previos a la obtención por pertenencia consolidada al régimen, debe haber aquí espacio para que exista un grado de protección, conforme al principio de confianza legítima o de expectativas legítimas que se reconoce cuando previamente hay relaciones jurídicas claramente establecidas, que son sostenidas y que para ser modificadas, éstas no pueden ser arbitrarias o abusivas, debe permitirse actuar bajo la sombra de la legislación anterior. Es necesario que exista alguna predictibilidad, lo que estaría protegido por el principio de legalidad, y garantizarse la constancia y buenas gobernanzas. Pero, en el criterio de la Sala, no estaría incluida la protección a la irretroactividad de las normas la potestad del Estado de ejercer su potestad tributaria y exigir exacciones a favor del Estado, hacia el futuro, siempre dentro de los límites dados por los principios tributarios (entre ellos principios de legalidad y jerarquía de las normas), así como de razonabilidad y proporcionalidad, de no confiscatoriedad y de la capacidad contributiva.

Por otra parte, debe recordarse que el derecho a la pensión no es un derecho absoluto, éste cede cuando es necesario imponer restricciones y limitaciones, especialmente basadas en el interés general y solidario, mediante la ley formal y material. El problema radica en cuánto es esa afectación, especialmente si es a la baja o implica una disminución de garantías contenidas en la legislación internacional que conlleva un gravamen confiscatorio, que afecta otros derechos fundamentales asociados como derecho económico y social. Es, sin embargo, una posibilidad que coinciden muchos de los informantes que esta Sala ha establecido a lo largo de los años, que el monto de las pensiones puede modificarse para mejorarse, o ser restringido mediante topes o contribuciones solidarias. Es posible, también, gravar estos ingresos, que por las razones esgrimidas por las partes accionantes, no se puede considerar inconstitucional, salvo los límites establecidos internacionalmente, según lo aquí analizado. Si los efectos son a futuro, no se puede tachar de inconstitucional, salvo que la legislación autorice al Estado a gravar los ingresos del pasado, en cuyo caso se convierte en un problema de relevancia constitucional por contradecir la garantía de la irretroactividad de las normas. De este modo, puede afirmarse que la legislación no estaría diseñada para modificar los derechos adquiridos y las situaciones jurídicas consolidadas, como tampoco de la doctrina de la supervivencia del derecho abolido, pues es evidente que podría haber un problema de aplicación administrativa de las normas, en que se debe respetar aquellas condiciones que fueron reconocidas a los pensionados y jubilados, para aquellos pensionados y jubilados que adquirieron el derecho a la pensión conforme lo establece la normativa y jurisprudencia de este Tribunal. Lo anterior, sin perjuicio, claro está, de la obligación de tributar conforme al artículo 18, Constitucional. Esto entendido conforme a la jurisprudencia reciente transcrita.

Además, debe observarse que nada de las normas del poder tributario del Estado permite entender que deben reintegrar -retroactivamente- sumas recibidas de más, cuando las mismas fueron legítimamente determinadas con fundamento en la normativa vigente. En tal sentido, la prestación se ve afectada únicamente hacia el futuro, más no sobre el problema que se deriva que es la reducción del monto, el cual ha sido determinado como parcialmente legítimo en esta sentencia, y se toma en consideración, que el límite o tope aplicado es parte de la necesidad de establecer un equilibrio en el régimen especial de pensiones a través de la contribución especial que es un tributo.

Otro de los alegatos de los accionantes tiene relación con los derechos adquiridos o situaciones jurídicas consolidadas desde la perspectiva del Convenio N° 102, de la Organización Internacional del Trabajo. En este sentido, estiman que sería ilegítimo, desde el punto de vista de esta normativa, que sean gravadas nuevamente con cargas fiscales, parafiscales, contribuciones al fondo, contribuciones solidarias, entre otras, que impliquen como resultado final, que se disminuye el monto bruto de pensión en curso en un 55%. En lo particular, la Procuraduría General de la República sostiene que los artículos 65.3, y 67.a, del Convenio, establecen que ello puede prescribirse por la legislación nacional o conforme al artículo 1.1, del mencionado texto, estableciendo un máximo de su monto, respetando eso sí el mínimo establecido en la Convención. En el caso de las prestaciones para la vejez, sería un 40% del total del salario del trabajador ordinario no calificado (artículos 65, 66 y 67, de la Convención).

Sin embargo, es criterio de este Tribunal, que esto involucra -nuevamente- problemas de coordenadas en el tiempo y el espacio, y por qué no decirlo, que daría campo al Estado a asumir posiciones extremas. Tanto la justificación de la Procuraduría General de la República, como aceptado por la minoría de la Sala, y lo que entiende la mayoría de esta Sala, estaría basada en diferentes normas del Convenio que justifican los límites de modo diferente, porque incursionan en problemas de distintos órdenes: el primero, el del nivel mínimo de la prestación que puede fijar el respectivo sistema previsional, que puede ser superado por el Estado, cuando el beneficiario o asegurado cumpla con los requerimientos formales y materiales fijados en la ley nacional. El segundo, la obligación del Estado de velar y tomar medidas de buena gobernanza en los regímenes previsionales, de modo que estaría obligado a cumplir con los principios de solidaridad financiera y del principio de responsabilidad del Estado, en aras del equilibrio financiero de los regímenes de pensiones (art. 71, del Convenio N° 102, de la Organización Internacional del Trabajo). Si bien, ambas justificaciones normativas pueden impactar el nivel de la prestación, no son problemas enteramente asimilables, dado que la extensión e implicación de las medidas impactan diferentemente las vidas de los pensionados. No es lo mismo autorizar una deducción prestacional hasta en un 40% (como se sugiere), por montos en curso de pago, que aplicar las medidas relacionadas al equilibrio financiero de un régimen en particular, que es lo que de fondo se discute y que debe ser aplicado de buena fe por parte del Estado costarricense de cara a un tratado internacional, al aplicar un total de cotizaciones de seguro a cargo de los asegurados que no puede excederse en un 50% del total de recursos destinados a su protección. Lo anterior, porque hay que establecer formas de protección por el principio de confianza legítima, principios de razonabilidad y proporcionalidad, así como las expectativas de derechos legítimamente formados a lo largo de años de cotizaciones, porque se causaría a una considerable regresión en derechos económicos, sociales y culturales. Ciertamente, no es lo mismo, la iniciación en un régimen y adquirir la pertenencia al sistema de pensiones, que acercarse a la consolidación del derecho, o haber cumplido los requisitos formales y materiales para la formación del derecho, en cuyo caso, debe establecerse una racionalidad en el manejo de estas situaciones, en justicia y equidad, especialmente si se pertenece a fondos de pensiones. Ello contrasta con la obligación general del pago de tributos y los principios tributarios de capacidad económica o contributiva, y de progresividad tributaria, autorizado por la norma convencional.

El Convenio N° 102, de la Organización Internacional del Trabajo, establece niveles mínimos de prestaciones para los regímenes previsionales, entre los cuales se indica que no podrán ser inferiores a las porciones prescritas del salario corriente ordinario, que se paga por un trabajo no calificado simple, agregando algunas otras reglas, como tiempos mínimos; pero es claro, que este tipo de reglas no deben interpretarse como una licencia que autoriza la regresividad de los derechos humanos, considerados desde un enfoque económico, social y cultural, pues para su ejercicio efectivo, éstos requieren de la implementación de mecanismos jurídicos y económicos proporcionados por el Estado. En este sentido, con toda razón el Comité de Derechos Económicos, Sociales y Culturales de la Organización de las Naciones Unidas, establece una primacía del derecho y de la política de estos derechos, donde la falta de recursos no puede servir de pretexto para el incumplimiento de ellos. Eso dejaría abierta la posibilidad para que el Estado pueda modificar irrestrictamente ciertos derechos prestacionales, cuando no le es lícito dejarlos vigentes de forma artificial o apenas en un ejercicio estéril, pues con la afectación de uno se perturban otros especialmente cuando se trata de ingresos económicos, para reconocer con meridiana claridad que la medida de regresividad repercute en muchos otros derechos fundamentales. No se debe olvidar, que estos derechos deben tener un determinado nivel de ejercicio (efectivo y económico), pues gozan del carácter de universales, indivisibles e interdependientes, así como interrelacionados.

El artículo 2.1, del Pacto Internacional de Derechos Económicos, Sociales y Culturales, del cual nuestro país es parte, establece que:

“Cada uno de los Estados Partes en el presente Pacto se compromete a adoptar medidas, tanto por separado como mediante la asistencia y la cooperación internacionales, especialmente económicas y técnicas, hasta el máximo de los recursos de que disponga, para lograr progresivamente, por todos los medios apropiados, inclusive en particular la adopción de medidas legislativas, la plena efectividad de los derechos aquí reconocidos”.

Es evidente que este numeral implica la obligación internacional de los Estados de no dar marcha atrás a ciertos niveles de goce de los derechos que ya ha puesto al servicio de sus ciudadanos, en esos supuestos, se entiende que no se debe llegar a extremos tan marcados, como el de rebajar una pensión hasta un 40% del monto bruto, o un 45% de ese rubro, significa en gran extensión inquietar y ofender los principios, valores y derechos contenidos en el Derecho de la Constitución.

El artículo 67.c, del Convenio N° 102, de la Organización Internacional del Trabajo, establece que:

“Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes…”.

El inciso c), del artículo 67, del Convenio N° 102, permite moderar una aplicación -tan extrema- de reglas que asignen una prestación rebajada a la mínima a todos los trabajadores por igual, aunque también, se debe tomar en cuenta la prohibición de rebajar estos ingresos (inciso b) condicionado a que estuvieran por encima de ciertos parámetros establecidos en la legislación nacional, con lo que se relaciona con mejores ingresos. Y en cuanto al d) en tanto incorpora un criterio de evaluación global comparada para determinar la suficiencia con el porcentaje indicado respecto de una prestación uniforme o el mínimo (del artículo 66). Es decir, la normativa siempre hace referencia a la posibilidad de mejorar la prestación de acuerdo a las circunstancias del beneficiario. Lo cierto, es que el inciso c), del artículo 67, del Convenio N° 102, de cita, hace referencia a uno de los elementos esenciales de los derechos económicos, sociales y culturales: el que las prestaciones que acordare el Estado, conforme al inciso a), del numeral 67, ya citado, deben brindarse para asegurarle al beneficiario un grado de dignidad, adecuación y guardar una relación que asegure a las personas una vida y nivel económico decorosos (vida sanas y convenientes). No puede con ello, -a pesar de que el Convenio N° 102 aparentemente lo permite- restar toda importancia, y dejar de tomar en cuenta los aportes, contribuciones, e incluso la vida del pensionado y jubilado. Es relevante, en criterio de la Sala, el contexto de los aportes y contribuciones del pasado, como presentes y futuros, en el ámbito económico, profesional y ocupacional, pues sólo estos factores permitirían justificar una pensión a niveles tan bajos que sacarían de balance los aportes referenciados al monto de la pensión, como de la vida misma del beneficiario. Es claro, que despreciar esas condiciones revelaría un menosprecio que no podría ser partícipe la mayoría de este Tribunal, en el tanto golpea la conciencia, la justicia y la equidad, valores que deben estar en toda conducta del Estado.

El artículo 9, del Protocolo de San Salvador, establece que:

“1. Toda persona tiene derecho a la seguridad social que la proteja contra las consecuencias de la vejez y de la incapacidad que la imposibilite física y mentalmente para obtener los medios para llevar una vida digna y decorosa. En caso de muerte del beneficiario, las prestaciones de seguridad social serán aplicadas a sus dependientes” (lo resaltado no es del original).

De igual manera, es importante traer a colación algunas otras normas de interés, como son los numerales 3.j) y 45.b), de la Carta de la Organización de Estados Americanos, que en cuanto este último establece que:

“El trabajo es un derecho y un deber social, otorga dignidad a quien lo realiza y debe prestarse en condiciones que, incluyendo un régimen de salarios justos, aseguren la vida, la salud y un nivel económico decoroso para el trabajador y su familia, tanto en sus años de trabajo como en su vejez, o cuando cualquier circunstancia lo prive de la posibilidad de trabajar” (lo resaltado no es del original).

Y, el artículo 25, de la Declaración Universal de Derechos Humanos, que reza:

“1. Toda persona tiene derecho a un nivel de vida adecuado que le asegure, así como a su familia, la salud y el bienestar, y en especial la alimentación, el vestido, la vivienda, la asistencia médica y los servicios sociales necesarios; tiene asimismo derecho a los seguros en caso de desempleo, enfermedad, invalidez, viudez, vejez u otros casos de pérdida de sus medios de subsistencia por circunstancias independientes de su voluntad (lo resaltado no es del original)”.

En este sentido, debe tomarse en cuenta que hay una relación jurídica preestablecida formalmente y sostenida a lo largo de décadas (sea, antes de la pensión como con posterioridad), que de variarse, no puede ser utilizando in extremis la potestad de imperio del Estado, sin ejercer los principios de razonabilidad y proporcionalidad, tomando en cuenta la dignidad del adulto mayor, y la necesidad de adecuación de todos los derechos económicos, sociales y culturales de los adultos mayores. En el caso que nos ocupa, los accionantes han alcanzado las condiciones formales y materiales para pensionarse o jubilarse, mismas que han sido objeto de reconocimiento formal del Estado, y ha sido el fundamento para que hayan obtenido las prestaciones económicas correspondientes. Tiene igualmente peso que algunas han sido fijadas en su mayoría desde hace mucho tiempo, como sucede con los accionantes. En el criterio de la mayoría, es contrario a la doctrina de los principios protectores de los derechos humanos considerar que simplemente se puede modificar la prestación económica de las pensiones hasta en un 40% del monto bruto, porque produce un problema significativo de relevancia constitucional, y convencional, que sería lesivo de los principios de la interdicción de la arbitrariedad y la confianza legítima del Estado, entre otros. Debe tomarse en cuenta que la misma Conferencia Internacional del Trabajo N° 76ª Reunión 1989, titulada “La protección de la vejez por la seguridad social, estudio general de la “Comisión de expertos en aplicación de convenios y recomendaciones”, citada por la minoría, aclara con tino que:

“139. Conviene recordar que las disposiciones de los instrumentos considerados no pretenden imponer a los Estados un método determinado para calcular el monto de las prestaciones previstas por la legislación nacional; éstos siguen siendo libres de adoptar sus propias reglas y métodos de cálculo para fijar el monto de las prestaciones pagadas dentro del marco de sus sistemas nacionales, a reserva de que el resultado de sus cálculos satisfaga los requerimientos previstos por los instrumentos en cuanto al nivel de las prestaciones. Las tres fórmulas invocadas, así como los parámetros que éstos utilizan, tales como el “salario del trabajador calificado de sexo masculino” y el “salario del trabajador ordinario no calificado adulto del sexo masculino” han sido establecidos únicamente a fin de comparar las situaciones nacionales y los requerimientos de los Convenios. Por consiguiente, y contrariamente a lo que parecen estimar ciertos gobiernos, todo Estado para el cual estos Convenios están en vigor podrá utilizar una u otra de estas fórmulas, a efectos de comparación internacional, sin por ello tener que introducirlas en su legislación o práctica nacionales”.

Aunado a lo anterior, cabe señalar el avance del derecho internacional de los derechos humanos relacionado con la Convención Interamericana de los Derechos Humanos de las Personas Mayores. No se podría sostener que el legislador pueda exigir una reducción de las pensiones a tal grado (40%) para financiación de las prestaciones, porque esa obligación estaría regulada en el artículo 71, de la Convención 102, de la Organización Internacional del Trabajo, lo que de seguro comprometería otras obligaciones internacionales como es la observancia de buena fe de las obligaciones internacionales, especialmente frente a los derechos humanos, y con el que se ligan las prestaciones económicas a otros derechos fundamentales, como el de la adecuación del pensionado y jubilado a su vivienda, alimentación, vestido, salud, y otros igualmente importantes.

El artículo 71, de la Convención N° 102, de la Organización Internacional de Trabajo, regula la forma en que los países pueden abordar la financiación de las prestaciones de seguridad social, entre ellas, la pensión y jubilación. Todo lo cual, se puede hacer con principios tributarios de carácter material, porque se hace de conformidad con la progresividad en materia tributaria y de la capacidad contributiva del pensionado, dentro de los límites establecidos por dicha norma de la Convención. Según las prácticas nacionales existen diferentes sistemas que se utilizan, sea por medio de contribuciones tripartitas con aportes del Estado, patrono y asalariado como en Costa Rica, o patrono y el Estado, o asegurados y los patronos, evidentemente, es un tema que lo desarrollan según las realidades nacionales. Pero evidente, por la ubicación de esa disposición en el tratado, contiene normas comunes relacionadas a cómo debe la legislación nacional abordar los aportes de financiación de la seguridad social amparada al Convenio, lo que, claramente, vincularía al Estado en la forma en que podrá exigir a los asalariados esa financiación. Lo cierto, es que un sistema en el que se exija, por ejemplo, solo a los asegurados la financiación de estos sistemas previsionales, estaría en conflicto con los incisos 1) y 2), del artículo 71, del Convenio N° 102. Adicionalmente, si ha de exigirse que el pensionado o jubilado asuma ciertos costos, directos e indirectos, asociados a la prestación económica que recibe por el derecho a la pensión o jubilación, este Tribunal Constitucional debe preferir solo aquella disposición que lesione en menor grado los derechos prestacionales, y todos los demás derechos asociados a estos. Cabe indicar que, ilustra este argumento, la Convención Interamericana de los Derechos Humanos de las Personas Mayores, que precisamente eleva a las personas adultas mayores a una categoría especial de protección internacional, a la cual el país se debe ante el concierto de Naciones. Por todo ello, a la luz de las leyes impugnadas, cuando la cuantía de la deducción sobre el monto de pensión supera más del 50%, su inconstitucionalidad es por la demasía de esa aplicación, según las razones que se han explicado supra.

Es claro, que no puede haber tampoco una interpretación en perjuicio de los asalariados, trabajadores, pensionados y jubilados, especialmente para los que el Convenio N° 102, de la O.I.T., califica como las más modestas, así como las de montos intermedios no sujetos a la potestad tributaria del Estado discutida en esta sentencia, porque no están en la misma situación quienes inician de los que han contribuido considerablemente, de quienes ya gozan del derecho, en cuyo caso, concluir como lo sugiere la Procuraduría de que si se puede reducir las prestaciones por pensión hasta en un 40% del total del salario trabajador ordinario no calificado, sería un problema de considerable relevancia constitucional y convencional, para estas prestaciones. Incluso, para quienes estarían más cerca de la pensión, podría afirmarse la necesidad de considerar formas de protección. De ahí que no habría duda de que medidas legislativas tan drásticas como esas deberían ser justificadas en estudios actuariales debidamente sustentados, que den mérito a un escrutinio estricto por parte de la Sala Constitucional. Pero, más aún, estaría fuera de toda discusión reducir la prestación a tal grado, en el caso de los pensionados y jubilados actuales, pues existe una norma especial que restringe la potestad tributaria del Estado; e, incluso, admitiendo la duda, debería aplicarse la norma más favorable, conforme a los principios protectores de los Derechos Humanos (párrafo 2°, artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo). En todo caso, cabe concluir, eso sí, que cumpliendo con lo anterior, las prestaciones económicas superiores, mantienen una susceptibilidad de ser gravadas, conforme a su capacidad contributiva, pero hasta en el límite del 50% del monto bruto de la pensión, conforme se ha indicado supra (…)” (El destacado no forma parte del original).

En la sentencia No. 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021, este órgano constitucional tuvo la oportunidad de pronunciarse nuevamente sobre este extremo, al alegar también los accionantes que la reforma realizada a los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial mediante la Ley No. 9544, y las deducciones que, en adelante, se le realizarían al monto bruto de la pensión de los pensionados de este Poder de la República -incluido lo tocante a la contribución especial y solidaria-, representaba una violación al ordinal 34 constitucional. Este preciso extremo de la acción fue desestimado por la Sala, bajo el siguiente orden de consideraciones:

“LII.- Redacta la Magistrada Hernández López. Sobre los derechos adquiridos y situaciones jurídicas consolidadas de los jubilados y pensionados judiciales en relación con la contribución especial, solidaria y redistributiva. Algunos accionantes alegan que existe también en la contribución especial, solidaria y redistributiva, una infracción al artículo 34 de la Constitución Política. Afirman que, de conformidad con el análisis del proceso constituyente, los derechos patrimoniales adquiridos o las situaciones jurídicas consolidadas, por virtud de la aplicación de una ley vigente, no pueden ser vulnerados por una ley posterior porque la situación jurídica consolidada ha quedado incluida dentro del patrimonio de la persona y tocarlo es quebrantar el principio, también constitucional, de la intangibilidad patrimonial consagrado en el artículo 45 de la Constitución Política. En atención a lo anterior, alegan que es precisamente aquella prohibición constitucional la que ha sido quebrantada en la Ley número 9544 pues sus normas afectan situaciones jurídicas consolidadas, en perjuicio de los jubilados y pensionados del Poder Judicial, de sus derechos patrimoniales adquiridos (pensiones y jubilaciones en curso de pago o previamente declaradas) y situaciones jurídicas consolidadas en forma de beneficios de pensión y jubilación con tutela constitucional de los artículos 73 y 74. Otro sector de accionantes afirman que también se vulneran derechos adquiridos y situaciones jurídicas consolidadas para aquéllos servidores activos que, durante muchos años, han estado cotizando para el Régimen de Jubilaciones y Pensiones del Poder Judicial y ahora, cuando estaban más cerca de jubilarse, se les cambia de manera abrupta las reglas del juego al extremo de que, para obtener el derecho a la jubilación, ahora tendrán que laborar muchos años más, cumplir mayor edad y a cambio recibir una menor prestación jubilatoria. Manifiestan además los accionantes que la introducción de este nuevo rubro para ser rebajado de las pensiones y jubilaciones de los servidores judiciales, implica un cambio novedoso de condiciones que provoca, según afirman, que se disminuya considerablemente el monto líquido a recibir para los beneficiarios, sin tomarse en cuenta que se trata de personas en condición de vulnerabilidad. (…)

LIV. Continúa redactando la Magistrada Hernández López. Frente al planteamiento de los accionantes, la Sala estima que no se han aportado criterios jurídicos de peso que hagan necesario reconsiderar su amplia jurisprudencia en la que ha sostenido la inexistencia de afectación al artículo 34 Constitucional con el establecimiento de contribuciones especiales como la que se ha creado en la ley número 9544. Como bien sostiene la Procuraduría, la ley 9544 no está eliminando el derecho a la jubilación o a la pensión a las personas que ya se les declaró y que la están disfrutando y de acuerdo con la jurisprudencia asentada, tampoco se puede decir que estas personas tengan un derecho adquirido al monto de la prestación jubilatoria que están recibiendo. En ese punto, el Tribunal ha sido concluyente en cuanto a que no existe un derecho a que la prestación derivada del derecho a la pensión lo sea por un monto específico (ver en ese sentido la propia sentencia 2020-19274 recién mencionada). Tampoco se trata de que se petrifiquen las normas regulatorias del sistema de jubilación porque la Sala también ha admitido que es válido que, conforme sea necesario y siempre cumpliéndose con el respeto de los derechos fundamentales, se hagan las modificaciones que sean necesarias para ajustar el sistema. Así las cosas, no se considera que el sólo hecho de que se hubiera decretado la obligación de aportar una contribución especial, solidaria y redistributiva en este caso esté lesionando algún derecho adquirido de los jubilados o pensionados en los términos en que lo alegan. Tampoco se lesionan situaciones jurídicas de las personas a las que todavía no se les ha declarado el derecho pues debe recordarse que el denominado derecho de pertenencia que este Tribunal ha identificado jurisprudencialmente, hace surgir en favor de los cotizantes un simple expectativa de obtener el derecho a la jubilación, ya que no han generado situaciones consolidadas ni derechos adquiridos en el momento de entrar en vigencia la nueva ley, así que ésta entra a regular dicha situación en el estado en que se encuentre, siendo claro entonces que la norma (art. 34 constitucional) se refiere a las situaciones jurídicas subjetivas ya consolidadas, no así a las que configuran meras expectativas, pues estas, al no haberse perfeccionado el derecho, están indiscutiblemente sujetas a las futuras regulaciones que la ley introduzca. En consecuencia, en cuanto a este extremo, se declara sin lugar la acción (…)” (El destacado no forma parte del original).

Por su parte, en la sentencia No. 2024-6250, de las 16:30 hrs. de 6 de marzo de 2024, esta Sala, a tenor de lo establecido en la Ley No. 9796 y su aplicación particular a los jubilados del régimen del Magisterio Nacional, descartó la comisión de una infracción a los principios de irretroactividad y de seguridad jurídica. Esta vez, la Sala reiteró que no era inconstitucional la figura de la contribución especial solidaria, así como el establecimiento de dichos pagos que debían asumir los pensionados con montos más onerosos que impactan el erario, siempre que se entendiera que esos rebajos se realizarían a futuro y no en detrimento de montos ya percibidos (con excepción de aquellas situaciones que debían ser sometidas a un proceso de lesividad). En ese mismo orden de consideraciones, en esta ocasión, esta jurisdicción –haciendo alusión, a su vez, de lo dispuesto en la sentencia No. 1999-5236–, indicó que no se estaba obligando a realizar aportes sobre dineros ya percibidos por concepto de pensión y que, hacia futuro, las reglas eran diversas, siendo que, el monto de la cotización -que pretendía compensar los desequilibrios del pasado y garantizar la sobrevivencia del sistema-, de manera alguna afectaba los derechos adquiridos.

En adición a lo anterior, en esta sentencia No. 2024-6250, la Sala fue clara al señalar que nada se opone, dentro del marco constitucional, a que el legislador introduzca reformas al sistema de seguridad social y regule o modifique, a futuro, los elementos normativos que deben tener en cuenta los operadores jurídicos para reconocer el monto de la pensión en los sistemas básicos sustitutivos del de invalidez, vejez y muerte. Se afirmó, entonces, que el legislador tiene un margen de discrecionalidad que le permite introducir válidamente las reformas que, según las necesidades económicas, conveniencias sociales y la evolución de los tiempos, estime necesarias y pertinentes para garantizar finalmente el derecho a la pensión. En otras palabras, en esta ocasión, sostuvo la Sala que, junto con el derecho a la jubilación, se encontraba, a su vez, la potestad del Estado de regular las condiciones necesarias a efecto de garantizar la permanencia y pago de dichas prestaciones, pero, también, la sostenibilidad fiscal a largo plazo sin perjudicar la colectividad nacional; todo lo cual, de ninguna manera, podría traducirse en una violación al principio de irretroactividad en perjuicio o al principio de seguridad jurídica.

Como se puede observar con claridad, la Sala ha sido del criterio que la imposición de las contribuciones bajo análisis a los jubilados, sea del Poder Judicial o de otros regímenes, no deviene en un quebranto al ordinal 34 de la Carta Magna, habida cuenta que, si bien existe un derecho a la pensión, no se puede hablar concomitantemente del derecho a un monto fijo de la misma, el cual puede ser sometido a limitaciones y restricciones a futuro –como las examinadas en este proceso–, siempre que se respete su contenido esencial y no se afecten los montos ya percibidos. Bajo dicha perspectiva, y, al no existir razones suficientes que hagan variar el criterio establecido por la Sala en su jurisprudencia para este tipo de temas, lo procedente es desestimar este extremo de la acción.

E. En cuanto a la presunta violación al principio de igualdad. Señalan los accionantes que los funcionarios del Poder Judicial cotizan un 13,5% de su salario de pensión, mientras que el resto de la población 3,8% y “los jubilados continúan con una contribución similar e igual de dispar con relación al resto de los regímenes de pensiones”. Sostienen que el régimen de pensiones del Poder Judicial es autosuficiente y, por ende, se encuentra en una situación desigual respecto al resto de regímenes de pensiones. Afirman que la reforma afecta en forma específica a un grupo (jubilados del Poder Judicial), sobre cualquier otro régimen de pensiones, pues a los primeros se les disminuye de forma progresiva y acelerada el monto de su pensión, en virtud de las contribuciones especiales y otras deducciones que se les aplican (seguro de la CCSS, impuestos). Explican que debe darse un tratamiento jurídico igual a quienes se encuentren en una misma posición o categoría jurídica e indican que “quienes estén colocados en posiciones, situaciones o categorías diferentes, deben recibir un tratamiento jurídico diferente”. De lo anterior, afirman, se deriva que no todo tratamiento jurídico debe ser uniforme, pues, por el contrario, pueden existir razones que justifiquen que el ordenamiento diferencie en el trato a las personas, sean estas físicas o jurídicas.

Adicionalmente, exponen que existen dos elementos para determinar o no la violación al principio de igualdad, primero: el parámetro de comparación que permite establecer que entre dos o más personas existe una situación idéntica y que, por lo tanto, se produce un trato discriminatorio desprovisto de toda justificación objetiva y razonable y segundo: la razonabilidad de la diferenciación, “con lo que se estatuye el principio de razonabilidad como parámetro de constitucionalidad”. Se refieren al principio de supremacía constitucional y al subprincipio de razonabilidad. Afirman que, siguiendo a ese principio, las leyes deben ajustarse al sentido constitucional formado por los motivos tenidos en cuenta por el constituyente, por lo fines propuestos, por los valores jurídicos fundamentales y por los medios previstos. Así, entonces, cuando el jurista ubica una norma que no está conforme con los principios constitucionales, es claro que deberá hacer el juicio sobre su razonabilidad en aras de determinar su irregularidad o no con la Carta Magna de acuerdo con las exigencias del principio de supremacía constitucional. Alegan que, teniendo claro que el principio de razonabilidad tiene rango constitucional y no puede estar exento de análisis en cada decisión de Estado o formación de ley, se debe entender, entonces, que Ley No. 9796 arremete de manera flagrante, directa y grosera contra dicho principio.

Sostienen que la relación del principio de razonabilidad y el principio de igualdad, plantea como problema esencial el discernimiento de una decisión normativa y cómo esta permitiría que un tratamiento desigual sea razonable. Indican que el fundamento de la ley cuestionada es inconsistente y gravoso en forma desproporcionada para el sector de los jubilados judiciales.

Mencionan también que, para que la diferenciación resulte constitucionalmente legitima, no basta con que lo sea el fin que se persigue con ella, sino que es indispensable, además, que las consecuencias jurídicas que resultan de tal distinción sean adecuadas y proporcionadas a dicho fin, de manera que la relación entre la medida adoptada, el resultado que se produce y el fin pretendido por el legislador superen el juicio de proporcionalidad en sede constitucional, evitando resultados especialmente gravosos o desmedidos. Sostienen que, precisamente, la medida de diferenciación contenida en la ley es gravosa y desmedida, dado que los sujetos comprendidos en la misma son considerablemente disímiles; de ahí que los efectos redunden en desproporcionados en sentido estricto y contrarios a la Constitución Política.

Para efectos de resolver este extremo de la acción, resulta menester empezar precisando que, en reiteradas ocasiones, esta Sala Constitucional ha señalado que el contenido del principio de igualdad estatuido en el ordinal 33 de la Constitución Política prohíbe hacer diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, sin que pueda pretenderse un trato igual cuando las condiciones o circunstancias son desiguales. Se acuerda, en principio, un trato igual a situaciones iguales y se posibilita un trato diferente a situaciones y categorías personales diferentes. Igualmente, esta jurisdicción ha indicado que, para determinar si realmente se justifica una distinción, hay que analizar si el motivo que la produce es razonable, sea, si atendiendo a las circunstancias particulares del caso, se justifica un tratamiento diverso.

En adición a lo anterior, este órgano constitucional ha señalado que, en aquellos casos en que se acuse la lesión del numeral 33 de la Constitución Política, no basta con que la parte recurrente afirme o invoque que se ha producido un trato distinto para tener por demostrado el quebranto a la norma constitucional, toda vez que quien alega la violación a este principio está obligado a aportar ab initio elementos suficientes que sugieran –con un grado de probabilidad razonable–, que de modo injustificado se ha dado un trato diferenciado e injustificado a situaciones iguales. Según lo ha establecido por esta Sala, no le basta a la parte accionante afirmar, sin más, que en un caso dado se ha producido un trato distinto, para tener por demostrado ese quebranto. Por el contrario, quien alega la violación, está obligado a aportar elementos que permitan efectuar una comparación plena entre los sujetos tratados en forma diferente -véase, al respecto, lo dispuesto, entre otras, en las sentencias No. 2023-14335, de las 09:30 hrs. de 16 de junio de 2023, y No. 2024-2501, de las 09:15 hrs. de 2 de febrero de 2024-.

En el presente asunto, los accionantes omitieron realizar una exposición clara, precisa y contundente de cómo, en su criterio, el contenido de la normativa impugnada -que es únicamente la Ley No. 9796-, violenta el principio de igualdad de los jubilados del Poder Judicial, imposibilitándose, entonces, a este Tribunal, realizar el análisis de fondo correspondiente. Nótese que los accionantes, en primer término, no aportaron a los autos un parámetro de comparación preciso que permita a esta jurisdicción llevar a cabo el análisis de interés; por el contrario, en el libelo de interposición se limitaron a mencionar que los funcionarios judiciales cotizan un 13.5% y el “resto de la población”, 3,8%; aspecto último que, además, ni siquiera está regulado en la ley bajo estudio. Indican también que la reforma hecha a través de la Ley No. 9796 afecta a los jubilados del Poder Judicial sobre “cualquier otro régimen”, en virtud de la disminución progresiva y acelerada del monto de la pensión; pero, no se precisa o aclara a cuál o a cuáles otros regímenes se refiere y de qué forma en concreto se lleva a cabo ese presunto trato diferenciado y carente de razonabilidad. Los accionantes insisten en realizar apreciaciones abstractas refiriéndose a “el resto de regímenes”, sin explicar, como se dijo, de qué manera ocurre presuntamente la violación que reclaman.

En ese mismo orden de consideraciones, cabe señalar que, en el escrito de interposición de esta acción, concretamente, en el apartado donde se reclama la violación al ordinal 33 constitucional, los interesados realizan una larga exposición y explicación sobre el contenido de este principio e, incluso, se refieren a su relación con los principios de supremacía constitucional, de razonabilidad y de proporcionalidad; sin embargo, no se detienen, como se dijo supra, a explicar de qué manera los ordinales cuestionados de la ley No. 9796 generan la vulneración aducida. En particular, los interesados se limitaron a sostener que la ley en cuestión arremete de manera flagrante, directa y grosera en contra del principio de razonabilidad y que esta, a su vez, “es inconsistente y gravosa en forma desproporcionada para el sector de los jubilados judiciales”.

En esencia, los accionantes invocaron la violación al ordinal 33 constitucional sin ofrecer ningún parámetro de comparación o elemento de juicio, tal y como correspondía para este tipo de casos.

Ahora bien, pese a lo dicho supra y aun cuando los accionantes no hayan realizado el ejercicio y desarrollo necesario que se advierte, conviene señalar, en este punto, que no se podría hablar de una violación al principio de igualdad en el tanto la contribución especial solidaria (objeto medular de este proceso de constitucionalidad), fue impuesta a diversos regímenes de pensiones; es decir, como bien lo explica la Procuraduría General de la República en su informe, a regímenes distintos, con prestaciones y condiciones igualmente diversas, por lo que, consecuentemente, no hay comparación posible alguna que hacer (en términos de igualdad de condiciones), que permita validar una violación al principio de igualdad.

La desigualdad, como bien se explicó arriba, solamente podría invocarse cuando diferenciaciones irrazonables y desproporcionadas acontecen o se producen en condiciones idénticas, lo cual, tal y como se dijo, no ocurre partiendo de los anteriores supuestos. Incluso, nótese que los propios accionantes, en el escrito de interposición de este asunto, son contestes con esta última afirmación al sostener que “quienes estén colocados en posiciones, situaciones o categorías diferentes, deben recibir un tratamiento jurídico diferente”. Además, son los mismos interesados quienes sostuvieron que los sujetos comprendidos en la ley “son considerablemente disímiles”.

En adición a lo anterior, debe tomarse en cuenta que este Tribunal, en la ya reiterada sentencia No. 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021, desestimó el agravio sobre la presunta violación al principio de igualdad reclamado por los accionantes, al realizar una comparación entre el régimen de pensiones del Poder Judicial y el régimen de pensiones de la CCSS, con ocasión, a su vez, de lo dispuesto en la Ley No. 9544. Lo anterior, al explicar, medularmente, que se trata de dos regímenes totalmente distintos. En tal oportunidad, esta jurisdicción especializada en materia constitucional dispuso lo siguiente:

“XXIX.- Redacta la Magistrada Hernández López. Sobre los principios de igualdad y unidad de la seguridad social y las disposiciones del Capítulo I “Prestaciones” de la Ley 9544. Los accionantes reclaman una vulneración del principio de igualdad y de unidad de la seguridad social en relación con el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social y afirman que, a pesar de que parte de la intención con la reforma introducida por la Ley 9544 era que el Régimen de Jubilaciones y Pensiones del Poder Judicial se igualara o, al menos, se acercara lo máximo posible a aquél régimen, más bien lo que se hizo fue alejar considerablemente a los servidores judiciales del sistema de la Caja Costarricense de Seguro Social y de cualquier otro régimen de seguridad social existente en el país. Señalan que con la reforma introducida por la Ley 9544, los trabajadores del Poder Judicial quedan cotizando montos adicionales en al menos 3 rubros que no tienen los trabajadores del país que están afiliados al Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social. Se trata del pago por parte de los jubilados del Poder Judicial de: 1) 5 x 1000 por gastos de administración que hay que pagar a la Junta de Administración del Fondo y que, en principio, representaría aproximadamente un 0,41%, a cargo de trabajadores activos como también por jubilados y pensionados; monto que no se pagaba antes porque la administración del Fondo se hacía por el Consejo Superior del Poder Judicial y Corte Plena, como parte de las funciones legalmente asignadas; 2) 13% de cotización al Régimen de Jubilaciones y Pensiones del Poder Judicial que representaría que se cotiza por los servidores activos, jubilados y pensionados. En este caso la diferencia del aporte es muy superior para los afiliados al Régimen del Poder Judicial, a pesar de que ambas categorías -Régimen del Poder Judicial y Régimen IVM- tienen derecho a soportar las mismas cargas; 3) 5% de cotización para el seguro de salud que se pagará por los jubilado o pensionados mientras que los pensionados por el régimen de IVM, no cotizan para este rubro.

Argumentan los interesados que la suma de los 3 rubros anteriores implicaría que cuando se rebaje del 82% del monto bruto de la jubilación, ésta última quedaría finalmente en un monto real de 66, 83%; en cambio, en el caso de los trabajadores afiliados al Régimen de Invalidez, Vejez y Muerte de la CCSS, aducen que si bien es cierto, la cuantía básica de la pensión oscila entre el 43% y el 52,5% como monto bruto de pensión, también es lo cierto que este régimen tiene 2 incentivos adicionales que se suman a esa cuantía básica: a) el 0,0833% por cada mes cotizado adicional a partir de la cuota mensual número 240 y b) el beneficio por postergación que es un 2,9326% en el caso de la mujer y un 2,7993 % en el caso del hombre. Así las cosas, indican que para trabajadores afiliados al Régimen de Invalidez, Vejez y Muerte de la CCSS (RIVM), en el caso de una mujer que se retire a los 65 años con 35 años de servicio en el RIVM, la cuantía básica de la pensión rondaría entre un 60,9266% y un 70, 4266%, y en el caso de un hombre con esas condiciones, estaría entre un 60,7933% y un 70,2933 %, siendo que, según afirman, al contrastarse estos porcentajes con la cuantía básica de los servidores judiciales de un 66, 83%, se observa que las personas afiliadas al Régimen de Invalidez, Vejez y Muerte quedarían en una mejor situación. Por esto, estiman que es más que evidente que, frente a estos datos, lejos de haberse equiparado ambos regímenes, más bien lo que se hizo fue colocar a afiliados al Régimen del Poder Judicial, en una situación de desventaja frente a los pertenecientes al régimen de la CCSS y, con ello, estiman que se lesiona el derecho a la igualdad y el principio de unidad de la seguridad social. (…)

XXXI.- Continúa redactando la Magistrada Hernández López. (…) Esta Sala recuerda que el contenido del principio de igualdad establecido en el artículo 33 de la Constitución Política significa que se prohíbe hacer diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, sin que pueda pretenderse un trato igual cuando las condiciones o circunstancias son desiguales, acordándose en principio, un trato igual a situaciones iguales y se posibilita un trato diferente a situaciones y categorías personales diferentes. Se ha indicado también que la exigencia de igualdad no deslegitima un trato diferenciado, pero para determinar si realmente se justifica una distinción, hay que analizar si el motivo que la produce es razonable, es decir, si atendiendo a las circunstancias particulares del caso, se justifica un tratamiento diverso (ver en este sentido la sentencia No. 5061-94 de las 17 horas 34 minutos del 6 de septiembre de 1994). De allí que no en todos los casos se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que puedan existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, sólo es lesionada cuando una desigualdad está desprovista de una justificación objetiva y razonable lo cual obliga a una valoración de su finalidad y sus efectos, de tal forma que debe existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva (ver sentencia No. 1770-94 de las 9 horas 18 minutos del 15 de abril de 1994).

Con base en lo dicho, en criterio de la Sala, no llevan razón los recurrentes en cuanto a este reclamo primero porque no existen elementos probatorios de que la intención de legislador se dirigía a homogenizar el Régimen de Jubilaciones y Pensiones del Poder Judicial con el de Invalidez, Vejez y Muerte de la CCSS, el cual es totalmente diferente en su naturaleza, en cantidad de cotizantes, aportes patronales, obreros beneficiarios etc, y porque- aun cuando ello fuera cierto- el resultado final del legislador es claro en cuanto a su voluntad de que exista un régimen exclusivo para los trabajadores del Poder Judicial, lo cual es consecuente con la inclinación que se desprende de los accionantes de mantener vigente y proteger su régimen, así como también con la vocación de las autoridades superiores del Poder Judicial y de los propios estudios técnicos del IICE, de propiciar las condiciones necesarias para que el Régimen de Jubilaciones y Pensiones del Poder Judicial continúe funcionando y sea robusto así como solvente. Ahora bien, está claro para este Tribunal que esa decisión de mantener un régimen de jubilaciones especial, independiente y diferente al básico, conlleva un costo asociado y origina consecuencias que deben ser asumidas por sus afiliados, las cuales por el simple hecho de ser diferentes no necesariamente implican discriminación, vulneración del principio de igualdad o del principio de unidad de la seguridad social. Desde esta perspectiva, el que se establezcan montos de cotización y cargas diferentes para los regímenes, obligaciones o no de seguir cotizando luego de adquirido el derecho de jubilación, y condiciones diversas para que se le otorgue el derecho a una persona, es el resultado de la necesidad de tomar en cuenta las particularidades y pluralidad de factores que tienen que ver con las condiciones laborales y la configuración del conjunto de participantes en el fondo (o la disparidad en los aportes patronales), así como con las prestaciones que se pretenden obtener en el retiro, o bien en atención a las políticas sociales y económicas que puedan intervenir en un momento determinado. Sobre el particular, la Sala estima que, si el fin primordial del constituyente fue mantener los seguros sociales para fortalecer la seguridad social, no hay razón para cuestionar la existencia de pluralidad de regímenes, siempre que, como lo indicó la Procuraduría, se cumplan criterios de igualdad en la que hace a los aportes estatales. De ese modo es constitucionalmente aceptable que exista una diferencia entre el régimen de pensiones de la Caja Costarricense del Seguro Social y el del Poder Judicial, por responder su promulgación a distintas necesidades y condiciones que tornan impropia su comparación simple en términos de rebajas, aportes obreros y perfil de beneficios, sin sopesar también las diferencias entre el número de cotizantes, topes, cobertura de derechos adquiridos y otras condiciones que los hacen diferentes. También cabe agregar que es público y notorio, por haber sido informado públicamente por las propias autoridades de esa institución, que el régimen de pensiones de la Costarricense del Seguro Social presenta importantes amenazas en su estabilidad financiera y que en respuesta a ello, se están considerando cambios en las requisitos de elegibilidad y al perfil de beneficios de modo que también desde este punto de vista, la comparación que plantean los accionantes pierde peso y relevancia para servir de sustento a una declaración de inconstitucionalidad por desigualdad, como lo pide. Así las cosas, la Sala no considera que la Ley 9544 haya vulnerado los principios de igualdad (…)” (El destacado no forma parte del original).

Por su parte y, en consonancia con lo anterior, en la reciente sentencia No. 2024-6250 de las 16:30 hrs. de 6 de marzo de 2024, mediante la cual se analizó la constitucionalidad de la Ley No. 9796 -particularmente para el caso de los pensionados del Magisterio Nacional-, esta Sala expuso que no se podía tener por violentado el principio de igualdad, por cuanto, la normativa de interés -que regula precisamente lo tocante a la contribución especial y solidaria-, era de aplicación a todos los regímenes de pensiones, sea, a los contemplados en la Ley Marco de Contribución Especial de los Regímenes de Pensiones, al Régimen General de Pensiones con Cargo, al Presupuesto Nacional, al Magisterio Nacional y al régimen especial del Poder Judicial. Asimismo, en esta ocasión, se aclaró que, en todo caso, no era correcto llevar a cabo comparaciones entre los diversos regímenes especiales de pensiones, puesto que estos responden a distintos criterios de agrupación y regulación; de forma tal que, las soluciones adoptadas por el legislador para cada caso en concreto, podían ser válidamente distintas para cada uno de esos grupos.

En adición a lo anterior, conviene destacar que, según los términos de lo dispuesto en la Ley No. 9796, en particular, lo señalado en los artículos 4 inciso b) y 7 -que, a su vez, reformó el artículo 236 bis de la Ley Orgánica del Poder Judicial-, a todos los jubilados del Poder Judicial cuyo monto de pensión supere los seis salarios base del puesto más bajo pagado en dicha institución les será impuesto el pago de la contribución solidaria en cuestión. A su vez, según lo estatuido en dichos numerales, los pensionados de este régimen deberán aportar de forma escalonada y progresiva, según el monto concreto que reciban por ese concepto. Por consiguiente, no podría sostenerse que, entre jubilados del régimen del Poder Judicial que se encuentran en idénticas condiciones -v.gr. que reciban un determinado monto de pensión ubicable en determinada escala según lo dispuesto en el artículo 236 bis de la Ley Orgánica del Poder Judicial-, se lleven a cabo diferenciaciones arbitrarias e injustificadas; plano donde sí se podría entonces hablar de una violación al principio de igualdad. Sin embargo, como se dijo, este estado de cosas tampoco ocurre según el estudio realizado. Una argumentación similar efectuó la Sala al emitir el criterio sentado en la sentencia No. 2024-6250, de las 16:30 hrs. de 6 de marzo de 2024, bajo el entendido que, dentro del marco del régimen de pensiones del Magisterio Nacional, todos los jubilados -a partir del nuevo tope que fue establecido conforme la Ley No. 9796-, deben cumplir con el pago de la contribución solidaria con un mismo propósito, que es el de garantizar el sostenimiento de las pensiones. Además, en dicha oportunidad se indicó que, al tratarse de escalas progresivas -lo cual igualmente ocurre para el caso de los jubilados del Poder Judicial, como ya se ha explicado-, también se respeta el principio de igualdad entre los diferentes niveles de ingreso de cada persona jubilada. Todo lo anterior, conllevó a este Tribunal a concluir que, dentro del marco del régimen del Magisterio Nacional, todos los jubilados deben, entonces, cumplir con similares obligaciones, siendo que las distinciones no pueden ser tachadas de odiosas o discriminatorias, pues estas se basan en los ingresos de cada uno.

Así las cosas, este Tribunal Constitucional estima que no existe mérito alguno para acoger la presente acción de inconstitucionalidad en lo que a este alegato corresponde.

F. Sobre la supuesta violación al principio de razonabilidad y proporcionalidad. De otra parte, los accionantes aducen que las reformas realizadas a partir de lo dispuesto en la Ley No. 9796 devienen en irrazonables y desproporcionadas, en el tanto terminan imponiéndole al jubilado judicial deducciones en el monto de su pensión de hasta un 55%.

Revisado lo anterior, esta Sala no considera que este extremo particular del proceso pueda ser valorado por el fondo, en el tanto el reclamo de los interesados carece de fundamentación, al haberse simplemente “enunciado” el agravio a tales principios, omitiéndose, concomitantemente, realizar un análisis de los elementos esenciales que sirven de parámetros de razonabilidad (necesidad, idoneidad y proporcionalidad en sentido estricto), respecto de las normas cuya constitucionalidad se reclama, a fin de evidenciar, en consecuencia, que estas no cumplen con esa triple condición. Aspecto anterior que, como se dijo, es un requisito esencial y determinante para que esta jurisdicción constitucional pueda emitir pronunciamiento sobre el particular. Nótese que, al respecto, esta Sala, en la sentencia 2014-1584 de las 16:01 hrs. de 5 de febrero de 2014 -reiterada, entre otras, por sentencias números 2022-374 y 2024-4629-, señaló, sobre el particular, lo siguiente.

“C.- Sobre el principio de razonabilidad y proporcionalidad. La asociación accionante considera que el artículo 32 bis del Código de Comercio carece de criterios objetivos, y que no existe un juicio sobre la necesidad y utilidad de la finalidad perseguida, si bien justificó las anteriores violaciones, ya despejada por este Tribunal, no lo hizo respecto de los quebrantamientos sobre la violación a este principio. No basta con enunciar el quebranto al principio de razonabilidad, sino que tiene la obligación de proporcionar los motivos por los cuales considera que no existen estos parámetros. En este sentido, llama la atención este tribunal que en sentencia No. 0523-99, de las 14:00 del 7 de julio de 1999, este Tribunal se pronunció así sobre esta exigencia:

«Para emprender un examen de razonabilidad de una norma, el Tribunal Constitucional requiere que la parte aporte prueba o al menos elementos de juicio en los que sustente su argumentación e igual carga procesal le corresponde a quien rebata los argumentos de la acción y la falta en el cumplimiento de estos requisitos, hace inaceptables los alegatos de inconstitucionalidad. Lo anterior, debido a que no es posible hacer un análisis de "razonabilidad" sin la existencia de una línea argumentativa coherente que se encuentre probatoriamente respaldada. Ello desde luego, cuando no se trate de casos cuya "irrazonabilidad" sea evidente y manifiesta» (…)” (El destacado no forma parte del original).

Del estudio de la acción, como se dijo, se advierte que la parte accionante no solo no indicó clara y concisamente los motivos que le llevan a concluir que las normas cuestionadas son irrazonables, sino que tampoco realizó el test de razonabilidad que se exige en estos casos, ni aporta prueba alguna que permita llegar a esa conclusión. Por otra parte, el presente asunto no presenta las características de una situación de irrazonabilidad evidente y manifiesta, que además sea fácilmente perceptible.

En todo caso, cabe señalar que, un argumento similar al ahora planteado por los accionantes, fue abordado y desestimado por esta Sala en la Sentencia No. 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021. En esta oportunidad, de manera expresa, se consignó lo siguiente:

“XLVIII. Redacta el Magistrado Araya García. Sobre el reclamo por falta de razonabilidad y proporcionalidad de la contribución especial, solidaria y redistributiva establecida en el artículo 236 bis de la Ley Orgánica del Poder Judicial.- Los accionantes reclaman que la contribución especial solidaria y redistributiva, lesiona los principios de razonabilidad y proporcionalidad porque afecta ampliamente las sumas que al final reciben los jubilados del régimen de Jubilaciones y Pensiones del Poder Judicial que ven reducidos sus pagos no solo con el 13 por ciento de cotización al Fondo sino con porcentajes del 35 al 55 por ciento sobre los excedentes, sin que exista ninguna razón o justificación para ello y solo con la finalidad de evitar que las personas que se ganaron su derecho a percibir una pensión alta reciban tales sumas que se consideran de lujo sin serlo en forma alguna. (…)

L.- Redacta el Magistrado Araya García. Para abordar este reclamo, el Tribunal se remite a lo dicho en considerandos anteriores sobre la naturaleza y finalidad de la contribución especial, solidaria y redistributiva, según el diseño original del artículo 236 bis de la Ley Orgánica del Poder Judicial y recuerda el hecho de que se trata de una carga para aquellos pagos jubilatorios y de pensiones elevadas al nuevo sistema puesto en operación con la reforma. También recalca especialmente que en lo referido al tope máximo de deducciones que los accionantes impugnan como elemento clave para de la falta de razonabilidad y proporcionalidad en la contribución especial, tal cuestión se definió supra, por mayoría, en consonancia con lo dicho en la sentencia número 2020-19274 arriba citada, en cuanto a que el porcentaje de deducciones legales -en los casos en que ellas procedan constitucionalmente- no puede exceder del 50 por ciento del monto bruto de pensión. Además de lo anterior, y en vista de que en el reclamo contra la razonabilidad y proporcionalidad de la contribución especial se emplea como parámetro el concepto del “último salario” o el “nivel de ingreso al momento de la jubilación”, debe reafirmarse lo expuesto por este Tribunal respecto a la insuficiencia de las acciones interpuestas en justificar constitucionalmente la elección de tal parámetro para contrastar los rebajos.

LI.- Redacta el Magistrado Araya García. Señalado lo anterior procede analizar entonces si la estructura de los rebajos en sí misma, genera alguna irrazonabilidad o desproporcionalidad de alcance constitucional que deba ser corregida por este Tribunal, teniendo en cuenta que, tal y como se ha venido sosteniendo por esta Sala, en este tipo de discusiones sobre los montos a percibir, no está en juego el derecho constitucional a recibir una jubilación o una pensión, pues éste último no consiste en el derecho a recibir un monto determinado de dinero y por ende los montos a pagar pueden ajustarse según las posibilidades financieras del Estado y los diseños previsionales, siempre que no se afecte la dignidad de la persona ni se le impida la posibilidad de disfrutar de sus demás derechos fundamentales y en general de llevar una vida digna. En principio, se hace la observación de que esta carga especial, según el diseño discutido en las acciones, buscaba gravar los excesos sobre el tope fijado en el artículo 225 de la Ley Orgánica del Poder Judicial, a saber, diez veces el salario mínimo pagado en el Poder Judicial, el cual se estableció para el año 2020 en 433 800 colones. De tal manera, la aplicación de la contribución especial, solidaria y redistributiva, habría iniciado a deducirse sobre excesos de los pagos superiores a los 4 330 800 colones, cumpliendo de esta forma con el fin propuesto de equilibrar con ingresos extraordinarios, los egresos igualmente extraordinarios que debería enfrentar el fondo; esta necesidad fue planteada con claridad en el estudio y propuesta técnica empleada como base para la legislación por parte de la Asamblea Legislativa, tal y como se observa en el folio 1984 del expediente legislativo que recoge los cuadros resumen de los cuatro marcos normativos propuestos por el IICE y que explican -en el párrafo de ingresos adicionales- la necesidad de una contribución solidaria para aquellos pagos por encima del tope propuesto y se aclaró que se trataba de un único porcentaje. Por otra parte, la necesidad e idoneidad de dicha medida se hace incluso más patente cuando se constata que la Asamblea excluyó del texto final, las sumas correspondientes a los depósitos judiciales abandonados que estaban sumados en la propuesta técnica como recursos adicionales en los citados marcos regulatorios recomendados. También hay que tomar en cuenta que lo aprobado fue una escala progresiva que, en esta materia recaudatoria resulta mucho más protectora para los afectados con lo que -en criterio de la Sala- se satisface la exigencia de proporcionalidad en sentido estricto. Los accionantes insisten en el hecho de que los reclamos puedan alcanzar una magnitud tal que priven a los jubilados y pensionados de la posibilidad de vivir una vida digna, pero lo cierto es que en este aspecto resultan plenamente aplicables los argumentos señalados en la sentencia 2020-19274, que estimó, por mayoría, que la reducción de montos jubilatorios hasta en un 50 por ciento no resulta en sí misma inconstitucional, sino que los interesados deben demostrar que las sumas remanentes efectivamente recibidas son insuficientes para satisfacer sus necesidades básicas como personas mayores y para mantener un nivel de vida que pueda objetivamente estimarse digno. En el caso concreto, y con el tope original arriba indicado, los receptores de las jubilaciones o pensiones más bajas dentro del grupo de las afectadas por esta contribución, especial, solidaria y redistributiva, tendrían que recibir un 50 por ciento del monto bruto; es decir, en el peor de los casos de rebajo para ellos debido a aumentos de contribuciones legales de cualquier tipo, el mínimo a recibir sería 2 150 000 colones. Correspondía a los accionantes demostrar con claridad que dicha suma resulta insuficiente de forma general, para cubrir apropiadamente las necesidades promedio de una persona jubilada o pensionada en nuestro país. Hay que tomar en cuenta, además que, de conformidad con el sistema previsional derivado de la vigencia de la Ley de Protección al Trabajador, los jubilados contarán con sumas adicionales derivadas de sus fondos en los otros dos pilares. De lo expuesto se concluye que tampoco existe ningún vicio de inconstitucionalidad en el diseño original de la contribución especial, solidaria y contributiva recogida en el texto original del artículo 236 bis de la Ley Orgánica del Poder Judicial. (…)” (El destacado no forma parte del original).

En consecuencia, lo que corresponde es desestimar este extremo del proceso.

G. Tocante a la presunta infracción al principio de solidaridad. Acusan también los accionantes que la ley bajo estudio violenta este principio, ya que le varía a un sector específico de la población -jubilados del Poder Judicial-, las circunstancias con una reforma no progresiva, sino disruptiva, que genera pobreza y menoscabo patrimonial.

Revisado lo anterior, esta Sala no estima que exista mérito para acoger este extremo del proceso. Lo anterior, en primer término, en el tanto la parte accionante –tal y como corresponde ante la interposición de un proceso formal como lo es la acción de inconstitucional–, no explica o fundamenta, de manera clara y precisa, cómo, concretamente, a través del articulado que contiene la Ley No. 9796, se podría ver quebrantado el principio de solidaridad. Aunado a ello, los accionantes no demostraron su presunta condición de pobreza y de menoscabo patrimonial; insumos de gran relevancia para conocer y examinar este extremo en particular. En cuanto a este último punto, cabe señalar que esta Sala, en la reiteradamente citada sentencia 2021-11957, de las 17:00 hrs. de 25 de mayo de 2021, al conocer alegatos similares al ahora planteado, sostuvo lo siguiente:

“En segundo lugar, los accionantes hablan de altos porcentajes de afectación respecto del último salario, pero -aparte de lo dicho respecto de tal parámetro- lo cierto es que no se aporta prueba técnica referente al impacto y afectación real de la reforma legal impugnada, dado que todas las deducciones menos una, son preexistentes a la reforma, y los únicos cambios nominales que la Sala aprecia son: el paso del 11 al 13 por ciento en la cuota obrera y el cargo de un 5 por mil (es decir un 0,5%) para atender los gastos de administración del Fondo, de modo que -en su esencia- la estructura de los rebajos no es mayormente diferente de la aplicable a los participantes del fondo durante su vida laboral y tampoco frente a la situación legal anterior que los accionantes reivindican; de tal manera correspondía a los accionantes demostrar que tales modificaciones generaron una disminución grave en los ingresos reales de los afectados, pero se echan de menos tales pruebas (…)

En cuarto y último lugar, no está demás señalar que un reclamo como el planteado en este punto, (entrega de jubilaciones calificadas de “ruinosa(s), pauperizante(s) e indigna(s)” no puede fundarse en elaboraciones abstractas referidas únicamente a porcentajes de rebajo, porque con ello se omite el hecho de que “la ruina”, “la pauperización” y “la indignidad”, no operan en abstracto sino que se verifican en la realidad frente a la insuficiencia de los pagos y las cantidades reales que se reciban; con esto se quiere remarcar que hablar en abstracto de deducciones de un 50 o 55 por ciento sobre el último salario podría incluir, por ejemplo, los casos de salarios entre los 4 y 6 millones de colones que, rebajadas a su mitad, dejan al beneficiario con una suma neta de jubilación de alrededor de 2 a 3 millones de colones mensuales, que -a la luz de la experiencia de este Tribunal y salvo demostración en contrario- no pueden estimarse abiertamente insuficientes para vivir una vejez digna en nuestro país (…)” (El destacado no forma parte del original).

Asimismo, en este último voto, esta jurisdicción también dijo:

“(…) También se explicó más arriba, que los montos concretos que han sido objeto del gravamen especial, dada su alta cuantía, dejan en manos de los jubilados y pensionados afectados una suma remanente respecto de la cual los accionantes no han logrado demostrar, ni siquiera indiciariamente, su manifiesta insuficiencia para dar soporte económico a una vida digna y al disfrute de los derechos humanos que integran el haber de las personas mayores, más aun tomando en cuenta que precisamente en atención a las obligaciones constitucionales y convencionales, el Estado -en sentido lato- ha venido construyendo una estructura de soporte en diversos ámbitos para asegurar no solo a los jubilados sino a todas las personas mayores precisamente esa dignidad en la vejez. En conclusión, tal y como se afirmó, no se ha demostrado ninguna afectación concreta de las posibilidades de disfrute efectivo de derechos fundamentales y de la posibilidad de vivir una vida digna, reconocidas en favor de las personas mayores por los instrumentos normativos de diverso rango y por la jurisprudencia de la Sala por lo que, en consonancia, la acción declararse sin lugar también en este punto (…)” (El destacado no forma parte del original).

Ahora bien, pese a lo dicho supra, resulta conveniente apuntar que esta jurisdicción, al emitir la sentencia No. 2024-6250, de las 16:30 hrs. de 6 de marzo de 2024 -que se pronunció precisamente sobre la presente ley bajo estudio No. 9796-, fue clara al señalar que el derecho a la jubilación, insertado como un derecho social y de solidaridad, conllevaba concomitantemente –a tenor de lo establecido en el ordinal 50 constitucional–, una labor del Estado de administración, manejo y redistribución de los recursos, en aras de procurar precisamente la solvencia del propio sistema de jubilación y el bienestar general del colectivo social. En esta ocasión, haciendo alusión, a su vez, a lo dispuesto en la Sentencia No. 1999-3338, la Sala sostuvo así que la solidaridad entre los miembros de una colectividad (lo cual implica, grosso modo, contribuir según las posibilidades y en beneficio de los que menos poseen), legitima y justifica la imposición de cargas (como lo sería la contribución especial solidaria), en favor de una justa y adecuada redistribución de la riqueza.

En adición a lo anterior, no puede perderse de vista que, contrario a lo aducido por la parte accionante y tal y como se explicó supra, el gravamen en cuestión sí es progresivo, de manera que, dentro del grupo gravado, quienes reciben las sumas más altas deben entregar más al sostenimiento del fondo.

Dicho lo anterior, este extremo del proceso corresponde ser declarado sin lugar.

H. En cuanto a la presunta carencia de estudios técnicos. Finalmente, los accionantes aducen que, para el establecimiento de los porcentajes de contribución al régimen -los cuales oscilan entre un 35% y un 55%-, no se contaron con estudios técnicos, lo cual, en su criterio, hace que la normativa bajo estudio resulte arbitraria e inconstitucional.

Sin embargo, en criterio de esta Sala este argumento tampoco resulta de recibo. Lo anterior, en el tanto los accionantes, una vez más, omitieron exponer los argumentos, de forma debidamente fundamentada, respecto a cómo, esa presunta omisión (carencia de estudios técnicos para imponer los referidos porcentajes de contribución), podría implicar o significar una inconstitucionalidad. Como se puede desprender fácilmente de una lectura realizada al escrito de interposición de esta acción de inconstitucionalidad, primeramente los interesados solamente indicaron que las contribuciones impuestas a los jubilados del Poder Judicial les produce un deterioro en su condición económica “al fijarse niveles de deducción confiscatorios, los cuales no están sustentados en estudios técnicos y/o especializados”. Algunas páginas después, se limitaron a mencionar que “en la ley que impugnamos se fijan porcentajes de deducción del 35% (…) un 45% (…) y un 55% (…) porcentajes fijados sin ningún estudio técnico, por lo que son arbitrarios y confiscatorios (…)”.

Tal y como se ha explicado supra, resulta fundamental, para conocer por el fondo este agravio, que la parte accionante aporte una argumentación debidamente motivada, respecto a la manera en que, en su criterio, la presunta falta de estudios técnicos podría estar en choque con lo dispuesto en la Constitución Política; de ahí que, al no contarse con esta, no puede esta jurisdicción emitir pronunciamiento alguno.

En todo caso, resulta de interés tomar en cuenta que en la sentencia No. 2024-6250, de las 16:30 hrs. de 6 de marzo de 2024 -a través de la cual, como ya se ha dicho, esta Sala se pronunció sobre la constitucionalidad de la Ley No. 9796, pero referida o circunscrita al ámbito del régimen de pensiones del Magisterio Nacional-, se llevó a cabo un análisis del trámite legislativo -expediente No. 21.035- y se señaló que, para la aprobación de dicha normativa, sí se contaron con criterios técnicos.

Cabe mencionar que si bien, en tal ocasión, la Sala se abocó al análisis de ese concreto régimen de pensiones -Magisterio Nacional-, también se dijo que, para efectos de emitir la normativa en cuestión, entre esta la atinente al Poder Judicial, se contaron entonces con estudios y criterios técnicos que le dieron sustento, lo cual, además, se confirmó con lo manifestado por el asesor legislativo del Departamento de Servicios Técnicos, Sr. Arias Ramírez, en la sesión ordinaria No. 30 de la Comisión Permanente de Asuntos Sociales, quien, en aquella oportunidad, aseveró que sí se contaron con informes actuariales, siendo incluso el del Poder Judicial el último en llegar. Según lo indicado por este órgano constitucional en dicha reciente sentencia, aun cuando en un primer momento del trámite legislativo se carecían de los estudios técnicos, lo cierto es que estos finalmente fueron allegados al respectivo expediente, con lo cual, no es posible afirmar que la ley en cuestión se dictó con carencia de tales insumos.

Finalmente, es importe aclarar que cualquier disconformidad que se tenga respecto al contenido propiamente de dichos criterios técnicos, no corresponde ser analizada por este órgano constitucional. No le corresponde a esta Sala, por carecer de competencia para ello y tratarse, en el fondo, de un tema de mera y pura legalidad, examinar lo señalado en dichas oportunidades y determinar, consecuentemente, si lo dispuesto o consignado en uno u otro criterio técnico resultaba o no pertinente; en especial, para efectos de la reforma efectuada al régimen de pensiones del Poder Judicial.

Bajo tal orden de consideraciones, este extremo del proceso debe ser igualmente desestimado.

XI.- COROLARIO. En mérito de lo expuesto, se impone acoger parcialmente la presente acción de inconstitucionalidad. En consecuencia, se anula el porcentaje de cotización y la contribución especial establecido en el ordinal 5 de la Ley No. 9796 en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada del régimen del Poder Judicial. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia o la paz social, la Sala gradúa y dimensiona el efecto de esta resolución, de modo que, a partir del mes siguiente de la notificación de esta sentencia, la Administración Tributaria deberá realizar el ajuste correspondiente conforme a esta sentencia, de tal manera que la carga tributaria que pesa sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado.

XII.- VOTO PARTICULAR DEL MAGISTRADO RUEDA LEAL. En el sub examine, la mayoría declara parcialmente con lugar la acción y “anula el porcentaje de cotización y la contribución especial establecido en el ordinal 5 de la Ley No. 9796 en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada del régimen del Poder Judicial”. Al respecto, salvo parcialmente el voto en relación con este extremo y lo declaro sin lugar, toda vez que, según el texto expreso del artículo 67 del convenio nro. 102 de la OIT de 1952 denominado ‘Convenio sobre la Seguridad Social (norma mínima)’, la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia.

Sobre el particular, la sentencia principal de este proceso basa la inconstitucionalidad referida ut supra en lo resuelto en la sentencia nro. 2021-11957 de las 17:00 horas de 25 de mayo de 2021, que dispuso: “(…) Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) se anula el porcentaje de cotizaciones y la contribución especial solidaria y redistributiva en cuanto excedan el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia, o la paz social, la Sala gradúa y dimensiona los efectos de esta resolución, de modo que, a partir del mes siguiente de la notificación de la sentencia, las autoridades competentes deberán realizar el ajuste correspondiente conforme a esta sentencia, de manera tal que las cargas tributarias que pesan sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado”. No obstante, me separé de tal criterio en los siguientes términos:

“Voto salvado del magistrado Rueda Leal en relación con el considerando XLI. En el sub examine, se acusa la inconstitucionalidad de la ley n.º 9544, en cuanto reformó el ordinal 236 de la Ley Orgánica del Poder Judicial y añadió el numeral 236 bis a ese cuerpo normativo. Se reprocha que en ambos ordinales establecieron un tope máximo del 55 % de deducciones respecto del monto bruto de jubilación, lo cual estiman excesivo y contrario al derecho fundamental a la jubilación.

Las normas impugnadas tienen este contenido:

“Artículo 236- El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos:

• 1)Un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente.
• 2)Un aporte patronal del Poder Judicial de un catorce coma treinta y seis por ciento (14,36%) sobre los sueldos y los salarios de sus servidores.
• 3)Un aporte del Estado que será un porcentaje sobre los sueldos y los salarios igual al establecido para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social (CCSS).
• 4)Los rendimientos y demás beneficios que produzca o pueda llegar a generar, obtener el Fondo.

En ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución obligatoria establecida en la presente ley ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial.

Artículo 236 bis- Contribución especial, solidaria y redistributiva de los pensionados y jubilados Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.
• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso.
• e)Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%).

En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presente ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial”.

Atinente al porcentaje máximo de deducciones de las pensiones, el voto de la Mayoría transcribe parcialmente lo dispuesto en la sentencia n.º 202019274 de las 16:30 horas de 7 de octubre de 2020. En adición, señala que los ordinales 236 y 236 bis de la Ley Orgánica del Poder Judicial (reformados por la ley n.º 9544 impugnada), son inconstitucionales, pues ambos fijan un 55% como tope máximo de deducciones legales, lo que excede en 5 puntos porcentuales el máximo establecido en la resolución citada. Asimismo, anula el porcentaje de cotizaciones y la contribución especial en cuanto supere el 50% del monto bruto de la pensión que le corresponde a la persona jubilada o pensionada.

No obstante, respetuosamente me separo del criterio de la Mayoría y declaro sin lugar el recurso con base en estos razonamientos.

Tal y como lo indiqué en mi voto salvado a la sentencia n.º 202019274 de las 16:30 horas de 7 de octubre de 2020, el porcentaje establecido por la Mayoría como límite máximo de contribuciones y deducciones (50%) se basó en una interpretación forzada del numeral 71.2 del convenio C102 de la OIT, ya que el artículo 67 de ese instrumento internacional es el que aplica para las reducciones de las pensiones. En esa oportunidad manifesté:

“III.-Voto salvado en cuando a los reclamos de fondo relacionados con las leyes n.os 9380 y 9383. La premisa jurídica del voto de mayoría, sobre la que se basa la mayor parte de su línea argumentativa, parte de que el artículo 71.2 del convenio de la OIT C102 de 1952 -Convenio sobre la seguridad social (norma mínima)- resulta aplicable a los pensiones y jubilados. Tal disposición señala:

“2. El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrán ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una” rama especial”.

Como la norma se refiere a “asalariado”, la mayoría se ve obligada a precisar el significado de ese término, puesto que, evidentemente, solo alude a los trabajadores activos. En tal sentido, consigna el voto principal de este proceso:

“Faltaría por determinar si “asalariado” significa únicamente al trabajador antes de adquirir el derecho a la pensión por el advenimiento de las condiciones formales y sustantivas del derecho, o si es posible, entender que asalariado se refiere también a otro tipo de beneficiario del sistema. En criterio de la Sala, debe darse una interpretación más amplia que incluya no sólo (sic) al trabajador activo, para admitir que en efecto, el pensionado o jubilado estaría incluido en este concepto. De hecho, aunque adelantándose a lo que se dirá posteriormente, esta posición es compatible, desde un punto de vista jurídico y económico, en que el pensionado o jubilado recibe un salario diferido que construyó con sus cotizaciones a lo largo de su vida laboral. Incluso, no se puede dejar de considerar que en el documento del Comité de Expertos evoluciona el concepto de asalariados cuando se refiere a “asegurados”. Así, debe asimilarse, dicho concepto, a ambos obligados, como asegurados potenciales y actuales: pensionado y asalariado. Véase, que el estudio citado enfatiza que no hay una camisa de fuerza sobre los Estados, por el contrario, el abordaje debe responder a los contextos nacionales, y no se puede descartar la evolución de los sistemas para acordar un sistema solidario de financiamiento y buena gobernanza dentro del marco y evolución de los derechos humanos, como se dirá más abajo. Si la disposición busca lograr un equilibrio, es perfectamente atendible que debería incluirse a todos los que reciben una suma pecuniaria producto de la prestación acordada, pues en ese sentido, reparte aquella carga sobre todos los participantes, que es lo que realmente busca establecer la norma internacional. Esta interpretación replicaría positivamente con el Comité de Expertos, ya citado. En consecuencia, se debe entender que “asalariado” o “asegurado” tiene una acepción amplia, y que no es un término excluyente de las personas pensionadas o jubiladas”.

A partir lo citado, la Sala, en el voto principal, concluye que las leyes n.os 9380 y 9383 infringen el párrafo segundo del numeral 71 del Convenio n.o 102 de la OIT al establecer un tope mayor al 50%. Asimismo, la mayoría considera que el exceso del 5% fijado por el legislador implica una violación al núcleo duro del derecho a la jubilación o pensión, en la medida en que las prestaciones fueron reducidas en proporciones mayores a lo permitido por el derecho internacional del trabajo.

Sobre lo anterior, el infrascrito disiente de esta hermenéutica, porque se funda en una premisa errónea a partir de una confusión técnica en nociones jurídicas básicas.

Primeramente, el ordinal 71.2 del convenio de la OIT C102 de 1952 -Convenio sobre la seguridad social (norma mínima)-, está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección. Por ejemplo, en el caso de Costa Rica, el asalariado, de acuerdo con la norma referida, nunca debería cotizar a la Caja Costarricense de Seguro Social más del 50% del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de estos, esto es, del total de recursos que se financian por medio del resto de aportes (del patrono y el Estado).

Ahora, es indubitable que el texto expreso de la norma del convenio regula a los “asalariados”; es decir, a la población económicamente activa, sin que de algún estudio de la OIT válidamente se pueda inferir la conclusión a que llega la mayoría en cuanto a que también aplica a los “pensionados”.

Lo más grave de lo anterior consiste en que la Sala, por la vía jurisprudencial, varía el texto positivo de una norma convencional ratificada por Costa Rica a través de las instancias competentes. De este modo, le cambia el sentido jurídico-normativo a la disposición contenida en el instrumento internacional con el propósito de adecuarlo de manera forzada al caso concreto, que notoriamente versa sobre una materia ajena al objeto del sub lite -el salario-, obviando así la existencia de otras normas del convenio de la OIT, que de forma puntual y concreta regulan lo atinente a las pensiones y las limitaciones que de manera válida se les pueden imponer en aras de la estabilidad financiera y solidaridad social del sistema. Al respecto, la Parte XI “Cálculo de los pagos periódicos”, contiene la siguiente disposición:

“Artículo 67 Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes:

(i) apartado b) del artículo 15, para la parte III; (ii) apartado b) del artículo 27, para la parte V; (iii) apartado b) del artículo 55, para la parte IX; (iv) apartado b) del artículo 61, para la parte X.

CUADRO ANEXO A LA PARTE XI.-PAGOS PERIÓDICOS AL BENEFICIARIO TIPO Partes Contingencias Beneficiarios tipo Porcentaje III Enfermedad Hombre con cónyuge y dos hijos 45 IV Desempleo Hombre con cónyuge y dos hijos 45 V Vejez Hombre con cónyuge en edad de pensión 40 VI Accidentes del trabajo y enfermedades profesionales:

Incapacidad para trabajar Hombre con cónyuge y dos hijos 50 Invalidez Hombre con cónyuge y dos hijos 50 Sobrevivientes Viuda con dos hijos 40 VIII Maternidad Mujer 45 IX Invalidez Hombre con cónyuge y dos hijos 40 X Sobrevivientes Viuda con dos hijos 40 (El destacado no corresponde al original).

Ergo, según el texto literal y explícito del Convenio, para que la pensión por vejez pueda reducirse y, de esta forma, en principio se le asegure a la familia condiciones de vida sanas y convenientes, tal beneficio debe alcanzar como mínimo el 40 por ciento de un salario de referencia.

En cuanto a este punto, sí existe un estudio de la OIT. Precisamente, en la Conferencia Internacional del Trabajo 76ª reunión 1989, “La protección de la vejez por la seguridad social, estudio general de la Comisión de expertos en aplicación de convenios y recomendaciones”, se indicó:

“Nivel de las prestaciones 130. En virtud del cuadro anexo a la parte XI del Convenio núm. 102 relativo a los pagos periódicos, las prestaciones de vejez para un beneficiario tipo - hombre con cónyuge en edad de pensión' - deben alcanzar el 40 por ciento de un salario de referencia2. Dicho porcentaje se eleva al 45 por ciento en el cuadro anexo a la parte V del Convenio núm. 128. Ambos porcentajes pueden sin embargo reducirse en diez unidades como máximo si las prestaciones son garantizadas por lo menos a las personas protegidas que hayan cumplido un período de calificación de duración inferior a treinta años de cotización o de empleo, o de veinte años de residencia normalmente tomada en consideración por los Convenios (párrafos 1, 3 y 4, artículo 29 del Convenio núm. 102 y párrafos 1, 3 y 4, artículo 18 del Convenio núm. 128). En cuanto a la Recomendación núm. 131, preconiza un porcentaje de 55 por ciento3 (párrafo 221, y recomienda en su párrafo 23 que la legislación nacional fije el monto mínimo de las prestaciones de vejez, a fin de asegurar un nivel mínimo de vida.” (El destacado no corresponde al original).

De esta forma, estimo que la premisa de la que parte el voto de mayoría deviene falsa, por lo que inexorablemente las conclusiones derivadas de aquella resultan erradas.

Ahora, el artículo Único de la ley n.° 9380 del 29 de julio de 2016, denominada “Porcentaje de cotización de pensionados y servidores activos para los regímenes especiales de pensiones”, regula:

“En ningún caso, la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por el presente artículo, incluida la contribución especial, solidaria y redistributiva correspondiente, podrá representar más del cincuenta y cinco por ciento (55%), respecto de la totalidad del monto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión".

Por su lado, el ordinal 3 in fine de la ley n.° 9383 de 29 de julio de 2016, denominada “Ley marco de contribución especial de los regímenes de pensiones”, estatuye:

“En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la presente ley podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.” Este límite del 55% respecto de la totalidad del monto bruto de la pensión, en principio, es compatible con el Convenio 102 de la OIT, puesto que, de los argumentos de los accionantes no se infiere, que su aplicación automáticamente transgreda la barrera del 40% respecto de un salario de referencia en los términos del artículo 67 de tal instrumento internacional. En ese sentido, tal salario de referencia, en el caso de Costa Rica, podría estar referido al promedio de salarios utilizado para calcular el monto de la pensión de una persona, lo que resulta conforme al ordinal 65 de esa regulación. Obsérvese que el parámetro del 55% de las leyes cuestionadas está relacionado con el monto bruto de la pensión, mientras que el del 40% convencional con un salario de referencia, de manera que se trata de límites que emplean de manera diferente. Por consiguiente, será en el ámbito de la aplicación de la norma legal, que se deberá valorar si en algún asunto concreto, probablemente concerniente a pensiones muy altas, la barrera convencional se superpone al parámetro legal.

En adición, el mínimo exento que contiene la ley n.o 9383 (diez veces el salario base más bajo pagado por la Administración Pública, según la escala de sueldos emitidas por la Dirección General de Servicio Civil) y el límite del 55% de las deducciones de las pensiones más altas (que contempla tanto la ley n.o 9380 como la ley n.o 9383) sometidas a una escala gradual de afectación, garantizan pensiones más que dignas a las personas adultas mayores. En el sentido anterior, no observo argumentos que demuestren que la contribución escalonada y las cargas impuestas sean abiertamente irrazonables o afecten el núcleo del derecho de la pensión, por lo que descarto alguna afectación manifiesta a la dignidad humana de las personas beneficiarias.

Atinente a lo anterior, no es posible afirmar que las disposiciones cuestionadas transgreden la protección internacional de que gozan las personas adultas mayores, ya que no solo se está garantizando la sostenibilidad del régimen, sino también un ingreso suficiente para satisfacer de manera razonable un nivel digno de vida.

Así, considero que, con los elementos aportados a los autos, las leyes n.os 9380 y 9383 no resultan contrarias a los principios de razonabilidad, proporcionalidad y no confiscatoriedad, ni transgreden la protección especial de que gozan las personas adultas mayores.

De igual forma, aun cuando se acusa transgresión al principio de la responsabilidad administrativa, no menos cierto es que las normas cuestionadas no eximen de responsabilidad a las dependencias públicas cuando cometan alguna lesión a las personas, por lo que prima facie desestimo este alegado.

(…)

En el sentido expuesto, si una pensión financiada en buena medida o totalmente con fondos públicos es irrazonablemente alta (con montos e incrementos desproporcionados), se justifica que a través de leyes se procure el ajuste de tales prestaciones en aras de resguardar el derecho a una existencia digna de todas las personas pensionadas. En tanto la imposición de contribuciones y cargas a las pensiones y jubilaciones por vejez respete el porcentaje establecido convencionalmente (artículo 67 del convenio 102 de la OIT), a priori no existiría alguna transgresión al Derecho de la Constitución. Debe tomarse en consideración que, tal y como lo acepta la mayoría de la Sala, la situación económica del país es complicada y la sostenibilidad del régimen de pensiones se encuentra comprometida, por lo que, en atención al principio de solidaridad social, resulta imprescindible que quienes se encuentran en una mejor posición, contribuyan progresivamente conforme a su capacidad económica. El abordaje de la contribución debe comprenderse a partir de la solidaridad para con la sostenibilidad del régimen y las personas menos favorecidas, antes que el mantenimiento de situaciones de privilegio desproporcionadas a favor de un grupo de personas. Por eso, precisamente, no se considera contrario al principio de irretroactividad que se aumenten los montos de contribución de las personas pensionadas o jubiladas, siempre que se respeten las garantías y límites expuestos en este voto salvado.

Ahora, la mayoría cita disposiciones del Protocolo de San Salvador, la Carta de la Organización de Estados Americanos y la Declaración Universal de los Derechos Humanos relativas al derecho de las personas a llevar una vida digna en su vejez, y considera que el porcentaje del 40%, contemplado en el propio ordinal 67 del convenio 102 de la OIT, resulta contrario a la justicia, la equidad, la interdicción de la arbitrariedad y la confianza legítima. No obstante, según lo indiqué supra, la norma del instrumento internacional que resulta aplicable al caso concreto es justamente ese artículo 67, avalado por la OIT, mas no el numeral 71.2, como modo forzado es interpretado por la mayoría en la sentencia principal. Asimismo, no está de más reiterar que el mínimo exento que contiene la ley n.o 9383 (diez veces el salario base más bajo pagado por la Administración Pública según la escala de sueldos emitidas por la Dirección General de Servicio Civil, que de acuerdo con la Procuraduría General de la República era de ¢2.602.500,00 al primer semestre del año 2017) y el límite del 55% de las deducciones de las pensiones más altas (que contempla tanto la ley n.o 9380 como la ley n.o 9383) sometidas a una escala gradual de afectación en las pensiones mayores, garantizan pensiones más que dignas a las personas adultas mayores.

Por último, aun cuando existan recomendaciones de la OIT que sugieran la mitad del salario como pensión en los supuestos en que se acrediten treinta años efectivos de cotización, no menos cierto es que, por un lado, tales disposiciones no tienen carácter vinculante (precisamente por ser recomendaciones) y, por otro, el convenio 102 de la OIT (cuya obligatoriedad es incuestionable) sí contempla expresamente un porcentaje que se debe respetar a los efectos de la pensión en los casos de vejez (40% de un salario de referencia), de ahí que sea procedente la aplicación directa del instrumento internacional en el sub lite.

Con base en lo expuesto, declaro sin lugar las acciones en lo que corresponde a las leyes n.os 9380 y 9383”.

Precisamente, conforme con la tesitura supra expuesta, la norma del convenio C102 de la OIT que resulta aplicable a este tipo de asuntos es el artículo 67, mas no el numeral 71.2.

En este sentido, los ordinales 67 y 71.2 señalan:

“Artículo 67 Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes:

(i) apartado b) del artículo 15, para la parte III; (ii) apartado b) del artículo 27, para la parte V; (iii) apartado b) del artículo 55, para la parte IX; (iv) apartado b) del artículo 61, para la parte X.

CUADRO ANEXO A LA PARTE XI.-PAGOS PERIÓDICOS AL BENEFICIARIO TIPO Partes Contingencias Beneficiarios tipo Porcentaje III Enfermedad Hombre con cónyuge y dos hijos 45 IV Desempleo Hombre con cónyuge y dos hijos 45 V Vejez Hombre con cónyuge en edad de pensión 40 VI Accidentes del trabajo y enfermedades profesionales:

Incapacidad para trabajar Hombre con cónyuge y dos hijos 50 Invalidez Hombre con cónyuge y dos hijos 50 Sobrevivientes Viuda con dos hijos 40 VIII Maternidad Mujer 45 IX Invalidez Hombre con cónyuge y dos hijos 40 X Sobrevivientes Viuda con dos hijos 40 (…)

“Artículo 71.

(…)

2. El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrán ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una rama especial”.

Como se puede desprender de la lectura de los numerales citados, la Sala, en la sentencia n.º 202019274 de las 16:30 horas de 7 de octubre de 2020, innecesariamente le cambió el sentido jurídico-normativo al numeral 71.2 para adecuarlo al caso concreto y fijar un porcentaje máximo del 50%, obviando así la existencia del ordinal 67 del instrumento internacional que puntualmente regula lo atinente a las limitaciones que se les pueden imponer a la pensiones. Nótese además, que el artículo 71.2 está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección; es decir, tal disposición regula a los “asalariados” (población económicamente activa) y no a los “pensionados o jubilados”.

Partiendo de lo anterior, de forma consecuente con la línea que he sostenido, declaro sin lugar estos alegatos, por cuanto no consta que los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial citados supra excedan automáticamente la barrera del 40% de un salario de referencia, establecida en el ordinal 67 del convenio C102 de la OIT. Obsérvese que el parámetro del 55% de las leyes cuestionadas está referido al monto bruto de la pensión, mientras que el 40% convencional a un salario de referencia, por lo que corresponde al ámbito de la aplicación de la norma legal valorar si, en algún asunto concreto, la barrera establecida en el instrumento internacional se superpone al parámetro fijado en la legislación. En consecuencia, no observo argumentos que demuestren que las contribuciones, cargas y deducciones sean abiertamente irrazonables o afecten el núcleo del derecho de la pensión”.

En adición, en la resolución nro. 2020-19274 de las 16:30 horas de 7 de octubre de 2024 (también citada por la mayoría como fundamento de la estimatoria), emití, en lo conducente, el siguiente voto particular:

“Voto particular del Magistrado Rueda Leal.

(…)

III.-Voto salvado en cuando a los reclamos de fondo relacionados con las leyes n.os 9380 y 9383. La premisa jurídica del voto de mayoría, sobre la que se basa la mayor parte de su línea argumentativa, parte de que el artículo 71.2 del convenio de la OIT C102 de 1952 ‑Convenio sobre la seguridad social (norma mínima)‑ resulta aplicable a los pensiones y jubilados. Tal disposición señala:

“2. El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrán ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una” rama especial”.

Como la norma se refiere a “ asalariado”, la mayoría se ve obligada a precisar el significado de ese término, puesto que, evidentemente, solo alude a los trabajadores activos. En tal sentido, consigna el voto principal de este proceso:

“Faltaría por determinar si “asalariado” significa únicamente al trabajador antes de adquirir el derecho a la pensión por el advenimiento de las condiciones formales y sustantivas del derecho, o si es posible, entender que asalariado se refiere también a otro tipo de beneficiario del sistema. En criterio de la Sala, debe darse una interpretación más amplia que incluya no sólo (sic) al trabajador activo, para admitir que en efecto, el pensionado o jubilado estaría incluido en este concepto. De hecho, aunque adelantándose a lo que se dirá posteriormente, esta posición es compatible, desde un punto de vista jurídico y económico, en que el pensionado o jubilado recibe un salario diferido que construyó con sus cotizaciones a lo largo de su vida laboral. Incluso, no se puede dejar de considerar que en el documento del Comité de Expertos evoluciona el concepto de asalariados cuando se refiere a “asegurados”. Así, debe asimilarse, dicho concepto, a ambos obligados, como asegurados potenciales y actuales: pensionado y asalariado. Véase, que el estudio citado enfatiza que no hay una camisa de fuerza sobre los Estados, por el contrario, el abordaje debe responder a los contextos nacionales, y no se puede descartar la evolución de los sistemas para acordar un sistema solidario de financiamiento y buena gobernanza dentro del marco y evolución de los derechos humanos, como se dirá más abajo. Si la disposición busca lograr un equilibrio, es perfectamente atendible que debería incluirse a todos los que reciben una suma pecuniaria producto de la prestación acordada, pues en ese sentido, reparte aquella carga sobre todos los participantes, que es lo que realmente busca establecer la norma internacional. Esta interpretación replicaría positivamente con el Comité de Expertos, ya citado. En consecuencia, se debe entender que “asalariado” o “asegurado” tiene una acepción amplia, y que no es un término excluyente de las personas pensionadas o jubiladas”.

A partir lo citado, la Sala, en el voto principal, concluye que las leyes n.os 9380 y 9383 infringen el párrafo segundo del numeral 71 del Convenio n. o 102 de la OIT al establecer un tope mayor al 50%. Asimismo, la mayoría considera que el exceso del 5% fijado por el legislador implica una violación al núcleo duro del derecho a la jubilación o pensión, en la medida en que las prestaciones fueron reducidas en proporciones mayores a lo permitido por el derecho internacional del trabajo.

Sobre lo anterior, el infrascrito disiente de esta hermenéutica, porque se funda en una premisa errónea a partir de una confusión técnica en nociones jurídicas básicas.

Primeramente, el ordinal 71.2 del convenio de la OIT C102 de 1952 ‑Convenio sobre la seguridad social (norma mínima)‑, está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección. Por ejemplo, en el caso de Costa Rica, el asalariado, de acuerdo con la norma referida, nunca debería cotizar a la Caja Costarricense de Seguro Social más del 50% del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de estos, esto es, del total de recursos que se financian por medio del resto de aportes (del patrono y el Estado).

Ahora, es indubitable que el texto expreso de la norma del convenio regula a los “asalariados”; es decir, a la población económicamente activa, sin que de algún estudio de la OIT válidamente se pueda inferir la conclusión a que llega la mayoría en cuanto a que también aplica a los “pensionados”.

Lo más grave de lo anterior consiste en que la Sala, por la vía jurisprudencial, varía el texto positivo de una norma convencional ratificada por Costa Rica a través de las instancias competentes. De este modo, le cambia el sentido jurídico-normativo a la disposición contenida en el instrumento internacional con el propósito de adecuarlo de manera forzada al caso concreto, que notoriamente versa sobre una materia ajena al objeto del sub lite ‑el salario‑, obviando así la existencia de otras normas del convenio de la OIT, que de forma puntual y concreta regulan lo atinente a las pensiones y las limitaciones que de manera válida se les pueden imponer en aras de la estabilidad financiera y solidaridad social del sistema. Al respecto, la Parte XI “Cálculo de los pagos periódicos”, contiene la siguiente disposición:

“Artículo 67 Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes:

(i) apartado b) del artículo 15, para la parte III; (ii) apartado b) del artículo 27, para la parte V; (iii) apartado b) del artículo 55, para la parte IX; (iv) apartado b) del artículo 61, para la parte X.

CUADRO ANEXO A LA PARTE XI.-PAGOS PERIÓDICOS AL BENEFICIARIO TIPO Partes Contingencias Beneficiarios tipo Porcentaje III Enfermedad Hombre con cónyuge y dos hijos 45 IV Desempleo Hombre con cónyuge y dos hijos 45 V Vejez Hombre con cónyuge en edad de pensión 40 VI Accidentes del trabajo y enfermedades profesionales:

Incapacidad para trabajar Hombre con cónyuge y dos hijos 50 Invalidez Hombre con cónyuge y dos hijos 50 Sobrevivientes Viuda con dos hijos 40 VIII Maternidad Mujer 45 IX Invalidez Hombre con cónyuge y dos hijos 40 X Sobrevivientes Viuda con dos hijos 40 (El destacado no corresponde al original).

Ergo, según el texto literal y explícito del Convenio, para que la pensión por vejez pueda reducirse y, de esta forma, en principio se le asegure a la familia condiciones de vida sanas y convenientes, tal beneficio debe alcanzar como mínimo el 40 por ciento de un salario de referencia.

En cuanto a este punto, sí existe un estudio de la OIT. Precisamente, en la Conferencia Internacional del Trabajo 76ª reunión 1989, “La protección de la vejez por la seguridad social, estudio general de la Comisión de expertos en aplicación de convenios y recomendaciones”, se indicó:

“Nivel de las prestaciones 130. En virtud del cuadro anexo a la parte XI del Convenio núm. 102 relativo a los pagos periódicos, las prestaciones de vejez para un beneficiario tipo - hombre con cónyuge en edad de pensión' - deben alcanzar el 40 por ciento de un salario de referencia2. Dicho porcentaje se eleva al 45 por ciento en el cuadro anexo a la parte V del Convenio núm. 128. Ambos porcentajes pueden sin embargo reducirse en diez unidades como máximo si las prestaciones son garantizadas por lo menos a las personas protegidas que hayan cumplido un período de calificación de duración inferior a treinta años de cotización o de empleo, o de veinte años de residencia normalmente tomada en consideración por los Convenios (párrafos 1, 3 y 4, artículo 29 del Convenio núm. 102 y párrafos 1, 3 y 4, artículo 18 del Convenio núm. 128). En cuanto a la Recomendación núm. 131, preconiza un porcentaje de 55 por ciento3 (párrafo 221, y recomienda en su párrafo 23 que la legislación nacional fije el monto mínimo de las prestaciones de vejez, a fin de asegurar un nivel mínimo de vida.” (El destacado no corresponde al original).

De esta forma, estimo que la premisa de la que parte el voto de mayoría deviene falsa, por lo que inexorablemente las conclusiones derivadas de aquella resultan erradas.

Ahora, el artículo Único de la ley n.° 9380 del 29 de julio de 2016, denominada “Porcentaje de cotización de pensionados y servidores activos para los regímenes especiales de pensiones”, regula:

“En ningún caso, la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por el presente artículo, incluida la contribución especial, solidaria y redistributiva correspondiente, podrá representar más del cincuenta y cinco por ciento (55%), respecto de la totalidad del monto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión".

Por su lado, el ordinal 3 in fine de la ley n.° 9383 de 29 de julio de 2016, denominada “Ley marco de contribución especial de los regímenes de pensiones ”, estatuye:

“En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la presente ley podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.” Este límite del 55% respecto de la totalidad del monto bruto de la pensión, en principio, es compatible con el Convenio 102 de la OIT, puesto que, de los argumentos de los accionantes no se infiere, que su aplicación automáticamente transgreda la barrera del 40% respecto de un salario de referencia en los términos del artículo 67 de tal instrumento internacional. En ese sentido, tal salario de referencia, en el caso de Costa Rica, podría estar referido al promedio de salarios utilizado para calcular el monto de la pensión de una persona, lo que resulta conforme al ordinal 65 de esa regulación. Obsérvese que el parámetro del 55% de las leyes cuestionadas está relacionado con el monto bruto de la pensión, mientras que el del 40% convencional con un salario de referencia, de manera que se trata de límites que emplean de manera diferente. Por consiguiente, será en el ámbito de la aplicación de la norma legal, que se deberá valorar si en algún asunto concreto, probablemente concerniente a pensiones muy altas, la barrera convencional se superpone al parámetro legal.

En adición, el mínimo exento que contiene la ley n. o 9383 (diez veces el salario base más bajo pagado por la Administración Pública, según la escala de sueldos emitidas por la Dirección General de Servicio Civil) y el límite del 55% de las deducciones de las pensiones más altas (que contempla tanto la ley n. o 9380 como la ley n. o 9383) sometidas a una escala gradual de afectación, garantizan pensiones más que dignas a las personas adultas mayores. En el sentido anterior, no observo argumentos que demuestren que la contribución escalonada y las cargas impuestas sean abiertamente irrazonables o afecten el núcleo del derecho de la pensión, por lo que descarto alguna afectación manifiesta a la dignidad humana de las personas beneficiarias.

Atinente a lo anterior, no es posible afirmar que las disposiciones cuestionadas transgreden la protección internacional de que gozan las personas adultas mayores, ya que no solo se está garantizando la sostenibilidad del régimen, sino también un ingreso suficiente para satisfacer de manera razonable un nivel digno de vida.

Así, considero que, con los elementos aportados a los autos, las leyes n. os 9380 y 9383 no resultan contrarias a los principios de razonabilidad, proporcionalidad y no confiscatoriedad, ni transgreden la protección especial de que gozan las personas adultas mayores.

De igual forma, aun cuando se acusa transgresión al principio de la responsabilidad administrativa, no menos cierto es que las normas cuestionadas no eximen de responsabilidad a las dependencias públicas cuando cometan alguna lesión a las personas, por lo que prima facie desestimo este alegado.

En relación con el alegato de la irretroactividad de las normas, la mayoría cita extensamente la sentencia n.o 2018-19030 de las 17:15 horas de 14 de noviembre de 2018. Al respecto, debo mencionar que, ciertamente, en esa resolución salvé el voto en los siguientes términos:

“Voto salvado del Magistrado Rueda Leal. Con el respeto acostumbrado, salvo el voto por tres temas concretos, según expreso de seguido.

El primero se relaciona con la interpretación efectuada por la sentencia de mayoría. De acuerdo con ella, la reforma al artículo 3 de la Ley número 7605 es aplicable únicamente a las personas que hubieran obtenido el derecho a la pensión o jubilación con posterioridad a la entrada en vigencia de la ley 7858. Según este criterio, la aplicación del tope establecido en esa norma a personas jubiladas con anterioridad a su entrada en vigencia infringe el principio de irretroactividad del numeral 34 constitucional.

Al leer la sentencia de marras sobresale la relevancia de determinar la naturaleza jurídica del derecho a la pensión o jubilación. Efectivamente, contrario a la recomendación brindada por la Procuraduría General de la República –la cual se inclina por la tesis de los derechos adquiridos-, la Sala definió que la pensión o jubilación es una situación jurídica consolidada y, en ese tanto, estimó que se encuentra dentro del ámbito de aplicación del principio de irretroactividad. Con base en este criterio, la Sala arribó a la conclusión antedicha e interpretó los efectos de la norma impugnada.

En torno a la naturaleza de la pensión o jubilación manifesté lo siguiente en la sentencia n. 2018-5758 de las 15:40 horas del 12 de abril de 2018:

“…aclaro que el derecho a la pensión es un derecho subjetivo que se encuentra condicionado por la sostenibilidad del régimen de pensiones. El derecho a la pensión puede verse modificado o limitado ante motivos de interés público que estén sustentados en estudios técnicos, tales como la propia viabilidad del régimen o fondo, siempre y cuando tales modificaciones no afecten su contenido mínimo. En tal sentido, el Convenio 102 de la OIT debe ser examinado en su integralidad y conforme a los principios que lo informan, amén que no se pueden dejar de advertir las diferencias esenciales entre el momento histórico cuando aquel fue acordado (año 1952), con la coyuntura actual, en la que fenómenos como el importante aumento de la expectativa de vida y una menor tasa de natalidad, definitivamente deben ser considerados en aras de un régimen de pensiones basado en el principio de la solidaridad social y, repito, la sostenibilidad financiera. Así, de acuerdo con el Centro Centroamericano de Población de la UCR, la esperanza de vida al nacer en Costa Rica es de 59.61 años en el año 1952 (hombres 58.52 / mujeres 60.76), que pasa a 79.04 en el 2010 (hombres 76.49 / mujeres 81.71). Por su parte, la tasa global de fecundidad por mujer baja de 6.46 en el año 1952 a 1.83 en el 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html y http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html).En igual sentido, según el Banco Mundial, la expectativa de vida al nacer en Costa Rica es de 60.58 años en el año 1960 y alcanza 79.61 en el 2015, mientras que la tasa de fertilidad (nacimientos por cada mujer) en Costa Rica es de 6.5 hijos para el año 1960, y cae a 1.8 en el 2015 (ver https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR y https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” La naturaleza jurídica de este tipo de jubilación o pensión –que no es de capitalización individual- se deriva del principio de solidaridad social, íntimamente vinculado con la vocación social del Estado costarricense. La base normativa de tal aseveración se encuentra en la Constitución Política:

“ARTÍCULO 50.- El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza. (…)

ARTÍCULO 74.- Los derechos y beneficios a que este Capítulo se refiere son irrenunciables. Su enumeración no excluye otros que se deriven del principio cristiano de justicia social y que indique la ley; serán aplicables por igual a todos los factores concurrentes al proceso de producción, y reglamentados en una legislación social y de trabajo, a fin de procurar una política permanente de solidaridad nacional.” Tal como se dijo, esta normativa constitucional ha sido desarrollada por la Sala con el fin de delinear el principio de solidaridad. Un buen ejemplo de ese desarrollo es el siguiente:

“III.- Sobre el principio de solidaridad. Una adecuada lectura de nuestro texto constitucional acarrea necesariamente la conclusión de que el sistema de derechos fundamentales en él establecido no se encuentra basado en el individualismo utilitarista, sino más bien en una concepción del hombre en el marco de la sociedad en la que se desenvuelve. La Constitución Política de 1.949 parte de la noción de que el ser humano no puede desarrollarse integralmente por sí solo, sino que para ello requiere de la participación de todos los otros miembros de la sociedad. De hecho, expresamente el numeral 50 constitucional impone como uno de los deberes fundamentales del Estado costarricense la búsqueda de una adecuada distribución de la riqueza, objetivo que no puede lograr sin el concurso de sus habitantes. En otras palabras, para lograr una más homogénea estratificación social, los individuos deben contribuir de acuerdo con sus posibilidades, en beneficio de quienes menos poseen. Lo anterior es un derecho fundamental de las personas que ocupan los estratos inferiores, y un deber de todos, principalmente los más beneficiados por el sistema económico. La riqueza en una sociedad no es producida apenas por quienes poseen los medios de producción, sino también por quienes contribuyen a ella con su mano de obra, con su trabajo. En consecuencia, los beneficios producidos por el mercado deben ser redireccionados a fin de que no rediten únicamente en favor de ciertas clases sociales. Relacionado este principio con el de justicia social, positivizado en el ordinal 74 de la Constitución, según el cual las personas deben colaborar recíprocamente en aras de preservar la dignidad humana de todos los miembros de la comunidad, tenemos que el constituyente buscó fomentar una sociedad donde la solidaridad fuera la regla general de convivencia; donde la realización de pequeños sacrificios en favor de grandes metas sociales estuviera por encima de los intereses individuales; es lo que normalmente se conoce como Estado social y democrático de Derecho. Podría así afirmarse que la solidaridad entre los miembros de la colectividad es un principio de rango constitucional, que legitimaría válidamente la imposición de ciertas cargas en favor de una justa redistribución de la riqueza. (Ver en este mismo sentido las sentencias de esta Sala números 1441-92, 5125-93)” (Sentencia n.° 3338-99 de las 18:45 horas del 5 de mayo de 1999).

A partir de estas premisas considero que el análisis de la acción de inconstitucionalidad debe efectuarse desde otra perspectiva, diferente a la acogida por el voto de mayoría. Efectivamente, verifico que la sentencia valoró solo de manera parcial los elementos jurídicos relevantes para la decisión, toda vez que únicamente se concentró en el reproche de la parte accionante, relacionado con el principio de irretroactividad, sin hacer mayor reflexión sobre los elementos necesarios para que un régimen de pensiones sea sostenible y conforme al principio de solidaridad social. En mi criterio debe efectuarse un análisis integral y comprehensivo de la cuestión jurídica planteada, a fin de evitar una extensión inadecuada de los principios constitucionales, como sucedió en este caso con el principio de irretroactividad. En otras palabras, la Sala debió primero analizar la naturaleza de un régimen de pensiones y luego examinar el tema del principio de irretroactividad.

En el sub examine, considero que un régimen de pensiones solo sería constitucionalmente válido en el tanto fuera sostenible y respetara el principio de solidaridad social. En otras palabras, si el legislador concibiera un régimen insostenible, sin algún tipo de previsión para mantener su equilibrio presupuestario, o abiertamente regresivo, entonces tal régimen sería inconstitucional específicamente en cuanto a tal omisión por incumplir los postulados indicados.

De lo anterior derivo que el principio de solidaridad social y el de sostenibilidad del régimen están ínsitos en todo régimen social de pensiones desde el momento de su creación y deben ser tomados en cuenta al interpretar el articulado de tales regímenes, toda vez que constituyen herramientas que lo hacen viable a largo plazo y posibilitan el cumplimiento del Estado Social de Derecho.

La necesidad de que el régimen sea sostenible no es un elemento disponible para el legislador, sino un requisito impuesto también por la realidad material. Tal realidad no pudo ser negada ni siquiera en el voto de mayoría, el cual tuvo que ceder ante la hipótesis de que un régimen de pensiones colapse:

“Para este Tribunal, sólo en un caso extraordinario –una debacle financiera del Estado o del respectivo régimen de jubilaciones y pensiones-, debidamente comprobada –técnica del control de los hechos determinantes-, sería posible modificar las condiciones originales en las que fue otorgada la jubilación o la pensión, escenario que no se está en el presente caso a pesar de la crisis fiscal por la cual atraviesa el gobierno central –déficit fiscal superior a un 3% del P.I.B. y que podría llegar a un 7% -, toda vez que si se adoptan las medidas adecuadas y efectivas para reducir el citado déficit en el corto plazo, es posible cumplir con el principio constitucional del equilibrio financiero consagrado en el numeral 176 constitucional.” En otras palabras, el criterio de mayoría sí aceptaría legislación contraria al principio de irretroactividad en caso de “debacle”. Considero innecesaria tal contradicción porque parto de que la sostenibilidad es un principio inherente a todo régimen solidario de pensiones y obliga a sus participantes –todos ellos- a contribuir en su mantenimiento. Efectivamente, la sostenibilidad del régimen permea la naturaleza jurídica de las pensiones y jubilaciones ligadas a él. El caso hipotético planteado por la mayoría de esta Sala ejemplifica claramente tal ligamen. La satisfacción de la pensión o jubilación se encuentra condicionada por la sostenibilidad del régimen de pensiones. Si el régimen deviene insolvente, como en el caso de la “debacle”, entonces todos los participantes en él verán frustradas sus pretensiones. De ahí que sea factible –incluso necesario- modificar las condiciones de todas pensiones o jubilaciones, siempre y cuando las modificaciones tengan por finalidad proteger la sostenibilidad del régimen y respeten el principio de razonabilidad y proporcionalidad. El acatamiento de este último garantiza, por ejemplo, que tales derechos no serán vaciados de contenido por una reforma posterior.

En el sub iudice, la norma impugnada fija un tope que entra a funcionar únicamente cuando surge una situación de riesgo para el régimen, toda vez que sería aplicable cuando “…los ingresos por concepto de cotizaciones estatales, obreras y patronales sean menores que los egresos derivados del pago de los beneficios…”. Destaco que este tope es extraordinario y requiere la verificación de esos presupuestos técnicos para su aplicación. Asimismo, es relevante que su parámetro de aplicación esté vinculado con la sostenibilidad del régimen de pensiones, cumpliendo con los postulados anteriormente explicados.

Dada la naturaleza jurídica de las pensiones y jubilaciones, las consideraciones anteriores me llevan a concluir que es constitucionalmente válido que, conforme al principio de solidaridad social, cuando un régimen de pensiones se encuentra en una crisis de sostenibilidad financiera, a fin de solventar esa situación, se apliquen topes con base en estudios técnicos tanto a quienes hayan obtenido el derecho a la pensión o jubilación con anterioridad a la entrada en vigencia como quienes lo hicieron con posterioridad.

Finalizo este argumento acotando que el artículo 34 constitucional sí protege los derechos patrimoniales que ya han sido recibidos por los beneficiarios de un régimen. En ese sentido, no podría promulgarse legislación nueva para pretender la repetición de lo que fue pagado de manera justa con base en la legislación derogada.

El segundo punto se relaciona con el artículo 3 bis de la Ley n.° 7605, que exceptúa de la aplicación del tope del numeral 3 a los beneficiarios de la ley 7007 y a quienes postergaron su jubilación. En este punto, retomo la explicación brindada líneas atrás. Todos los participantes de un régimen de pensiones deben aportar a su sostenibilidad; aunado a esto, el tope establecido es extraordinario y aplicable únicamente cuando se presentan las condiciones técnicas antes indicadas; caso contrario, no se aplicaría tal tope.

Partiendo de estas premisas, estimo que constituye una violación al derecho a la igualdad en relación con el principio de solidaridad social que se efectúen las excepciones establecidas en el numeral 3 bis de cita. No se observa una justificación jurídicamente plausible para exonerar a los sujetos contemplados en él de su deber de contribuir a la sostenibilidad del fondo en aras de la solidaridad social. Reitero que la sostenibilidad del régimen de pensiones o jubilaciones recae en todos sus participantes. Si un régimen es insostenible desde el punto de vista financiero, deviene inconstitucional que ciertos beneficiarios no contribuyan, sin que alguna razón válida lo justifique. Por lo anterior, declaro con lugar la acción en ese respecto”.

En el sub examine, la mayoría reconoce nuevamente que la normativa puede tener efectos retroactivos en caso de una “debacle” económica; sin embargo, tal y como sostuve en el voto salvado citado supra, la sostenibilidad es un principio inherente a todo régimen solidario de pensiones y obliga a todos sus participantes a contribuir a su mantenimiento. Este es el principal aspecto para tomar en consideración al analizar normas como las aquí impugnadas.

Si, de acuerdo con el Ministerio de Hacienda, de cada 100 colones, 90 se financian con impuestos o deuda, los regímenes de pensiones especiales con cargo al Presupuesto Nacional adolecen de claros problemas de sostenibilidad financiera. En adición, si aquel deviene insolvente o si el Estado pierde su capacidad de cumplir con sus obligaciones, entonces todos los participantes en él verán frustradas sus pretensiones. De ahí que sea factible gravar las pensiones o jubilaciones que tengan mayores beneficios e, incluso, modificar sus condiciones, siempre y cuando los ajustes tengan por finalidad proteger la sostenibilidad del régimen y respeten el principio de razonabilidad y proporcionalidad en relación con la solidaridad social.

En el sentido expuesto, si una pensión financiada en buena medida o totalmente con fondos públicos es irrazonablemente alta (con montos e incrementos desproporcionados), se justifica que a través de leyes se procure el ajuste de tales prestaciones en aras de resguardar el derecho a una existencia digna de todas las personas pensionadas. En tanto la imposición de contribuciones y cargas a las pensiones y jubilaciones por vejez respete el porcentaje establecido convencionalmente (artículo 67 del convenio 102 de la OIT), a priori no existiría alguna transgresión al Derecho de la Constitución. Debe tomarse en consideración que, tal y como lo acepta la mayoría de la Sala, la situación económica del país es complicada y la sostenibilidad del régimen de pensiones se encuentra comprometida, por lo que, en atención al principio de solidaridad social, resulta imprescindible que quienes se encuentran en una mejor posición, contribuyan progresivamente conforme a su capacidad económica. El abordaje de la contribución debe comprenderse a partir de la solidaridad para con la sostenibilidad del régimen y las personas menos favorecidas, antes que el mantenimiento de situaciones de privilegio desproporcionadas a favor de un grupo de personas. Por eso, precisamente, no se considera contrario al principio de irretroactividad que se aumenten los montos de contribución de las personas pensionadas o jubiladas, siempre que se respeten las garantías y límites expuestos en este voto salvado.

Ahora, la mayoría cita disposiciones del Protocolo de San Salvador, la Carta de la Organización de Estados Americanos y la Declaración Universal de los Derechos Humanos relativas al derecho de las personas a llevar una vida digna en su vejez, y considera que el porcentaje del 40%, contemplado en el propio ordinal 67 del convenio 102 de la OIT, resulta contrario a la justicia, la equidad, la interdicción de la arbitrariedad y la confianza legítima. No obstante, según lo indiqué supra, la norma del instrumento internacional que resulta aplicable al caso concreto es justamente ese artículo 67, avalado por la OIT, mas no el numeral 71.2, como modo forzado es interpretado por la mayoría en la sentencia principal. Asimismo, no está de más reiterar que el mínimo exento que contiene la ley n. o 9383 (diez veces el salario base más bajo pagado por la Administración Pública según la escala de sueldos emitidas por la Dirección General de Servicio Civil, que de acuerdo con la Procuraduría General de la República era de ¢2.602.500,00 al primer semestre del año 2017) y el límite del 55% de las deducciones de las pensiones más altas (que contempla tanto la ley n. o 9380 como la ley n. o 9383) sometidas a una escala gradual de afectación en las pensiones mayores, garantizan pensiones más que dignas a las personas adultas mayores.

Por último, aun cuando existan recomendaciones de la OIT que sugieran la mitad del salario como pensión en los supuestos en que se acrediten treinta años efectivos de cotización, no menos cierto es que, por un lado, tales disposiciones no tienen carácter vinculante (precisamente por ser recomendaciones) y, por otro, el convenio 102 de la OIT (cuya obligatoriedad es incuestionable) sí contempla expresamente un porcentaje que se debe respetar a los efectos de la pensión en los casos de vejez (40% de un salario de referencia), de ahí que sea procedente la aplicación directa del instrumento internacional en el sub lite .

Con base en lo expuesto, declaro sin lugar las acciones en lo que corresponde a las leyes n.os 9380 y 9383”.

(…)”.

En adición, aclaro que, en la sentencia nro. 2024006250 de las 16:30 horas de 6 de marzo de 2024 (de igual forma mencionada por la mayoría como sustento de la declaratoria de inconstitucionalidad), salvé el voto y declaré inadmisibles las acciones, por lo que no me pronuncié sobre la alegada inconstitucionalidad de la ley nro. 9796.

Ahora, en cuanto a esta acción, observo que la Sala, por mayoría, mantiene el criterio de aplicar el numeral 71.2 del convenio nro. 102 de la OIT, para adecuarlo al caso concreto y fijar un porcentaje máximo del 50%, obviando así la existencia del ordinal 67 del instrumento internacional que puntualmente regula lo atinente a las limitaciones que se les pueden imponer a las pensiones. Nótese además, que el artículo 71.2 está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección; es decir, tal disposición regula a los “asalariados” (población económicamente activa) y no a los “pensionados o jubilados”.

Ergo, de forma consecuente con la línea que he sostenido, no observo alguna inconstitucionalidad en el ordinal 5 de la ley nro. 9796, ya que no se demostró que se exceda automáticamente la barrera del 40% de un salario de referencia, establecida en el ordinal 67 del convenio C102 de la OIT. Obsérvese que el parámetro del 55% del artículo cuestionado está referido al monto bruto de la pensión, mientras que el 40% convencional a un salario de referencia, por lo que corresponde al ámbito de la aplicación de la norma legal valorar si, en algún asunto concreto, la barrera establecida en el instrumento internacional se superpone al parámetro fijado en la legislación. En consecuencia, no observo argumentos que demuestren que las contribuciones, cargas y deducciones sean abiertamente irrazonables o afecten el núcleo del derecho de la pensión, por lo que prima facie descarto alguna violación a los derechos a la jubilación y la seguridad social, así como al principio de no confiscatoriedad.

Por otra parte, en atención a lo dispuesto en la resolución nro. 2021-11957 de las 17:00 horas de 25 de mayo de 2021, se fundamenta la declaratoria sin lugar de los reclamos planteados sobre la doble imposición tributaria, así como de la acusada transgresión los principios de no retroactividad; seguridad jurídica; igualdad; razonabilidad y proporcionalidad; y solidaridad. Al respecto, debo mencionar que en aquella oportunidad (salvo en lo relativo a la omisión del legislador de incluir la perspectiva de género) coincidí con los argumentos de desestimatoria expuestos por la mayoría (razón por la cual me encuentro de acuerdo con los alegatos declarados sin lugar en esta acción); sin embargo, debo precisar que consigné la siguiente nota en esa sentencia:

“Nota del magistrado Rueda Leal. En el sub iudice, aclaro que, mención aparte de mi voto salvado, si bien comparto el criterio de la Mayoría en cuanto a desestimar los reclamos formulados por las partes accionantes, me parece fundamental exponer las siguientes precisiones particulares respecto de la motivación para arribar a tal conclusión.

1- Sobre la sentencia n.º 2018005758 de las 15:40 horas de 12 de abril de 2018 citada en el voto principal.

Esta resolución se cita de forma constante en el pronunciamiento principal de este proceso, de ahí que considero oportuno advertir lo que consigné en esa oportunidad:

“XXII.- Nota del Magistrado Rueda Leal. Concerniente a la publicidad del texto sustitutivo del 13 de setiembre de 2016, comulgo con el voto de mayoría, toda vez que conforme a reiterada jurisprudencia constitucional –que del todo estimo improcedente exceptuar (2017-019636, 2017-003262, 2016-018351, 2016-012413, 2015-001240, 2014-018836, 2012-013367, 2014-003969, 2013-013344, 2012-017705. 2012-015840, 2012-002675, 2011-015968, 2011-015655, 2011-014966, 2011-012611, 2011005274, 2011-005268, 2011-000992, 2011-000905, 2010-016202, 2010-012026, 2010-007630, 2000-010136, entre muchas otras sentencias)–, las consultas facultativas de constitucionalidad se restringen a analizar lo cuestionado por los consultantes de manera específica, sin que la Sala, en esta vía procesal, extienda el control de constitucional motu proprio a otros temas. Así, en lo atinente al reclamo planteado, el razonamiento esbozado en este pronunciamiento responde a la citada línea jurisprudencial y deviene correcto, por lo que lo suscribo.

Por otro lado, aclaro que el derecho a la pensión es un derecho subjetivo que se encuentra condicionado por la sostenibilidad del régimen de pensiones. El derecho a la pensión puede verse modificado o limitado ante motivos de interés público que estén sustentados en estudios técnicos, tales como la propia viabilidad del régimen o fondo, siempre y cuando tales modificaciones no afecten su contenido mínimo. En tal sentido, el Convenio 102 de la OIT debe ser examinado en su integralidad y conforme a los principios que lo informan, amén que no se pueden dejar de advertir las diferencias esenciales entre el momento histórico cuando aquel fue acordado (año 1952), con la coyuntura actual, en la que fenómenos como el importante aumento de la expectativa de vida y una menor tasa de natalidad, definitivamente deben ser considerados en aras de un régimen de pensiones basado en el principio de la solidaridad social y, repito, la sostenibilidad financiera. Así, de acuerdo con el Centro Centroamericano de Población de la UCR, la esperanza de vida al nacer en Costa Rica es de 59.61 años en el año 1952 (hombres 58.52 / mujeres 60.76), que pasa a 79.04 en el 2010 (hombres 76.49 / mujeres 81.71). Por su parte, la tasa global de fecundidad por mujer baja de 6.46 en el año 1952 a 1.83 en el 2010. ( y http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html).En igual sentido, según el Banco Mundial, la expectativa de vida al nacer en Costa Rica es de 60.58 años en el año 1960 y alcanza 79.61 en el 2015, mientras que la tasa de fertilidad (nacimientos por cada mujer) en Costa Rica es de 6.5 hijos para el año 1960, y cae a 1.8 en el 2015 (ver https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR y https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR)”.

2.-Sobre la insostenibilidad del Régimen de Pensiones y Jubilaciones del Poder Judicial y la necesidad de reformarlo.

Al respecto, acoto que, ante el inminente problema de insolvencia del Régimen de Pensiones y Jubilaciones del Poder Judicial, el legislador se encontraba en la obligación de tomar las medidas necesarias para garantizar su sostenibilidad. Asimismo, es fundamental considerar que los principios de sostenibilidad y solidaridad social están ínsitos en todo régimen social de pensiones, por lo que deben ser ponderados al momento de valorar la constitucionalidad de las disposiciones que reformaron el régimen. En ese sentido, reitero mi voto salvado a la sentencia n.o 2018-19030 de las 17:15 horas de 14 de noviembre de 2018 (que también cité en mi voto salvado a la sentencia n.o 2020019274 de las 16:30 horas de 7 de octubre de 2020):

“Voto salvado del Magistrado Rueda Leal. Con el respeto acostumbrado, salvo el voto por tres temas concretos, según expreso de seguido.

(…)

En torno a la naturaleza de la pensión o jubilación manifesté lo siguiente en la sentencia n. 2018-5758 de las 15:40 horas del 12 de abril de 2018:

“…aclaro que el derecho a la pensión es un derecho subjetivo que se encuentra condicionado por la sostenibilidad del régimen de pensiones. El derecho a la pensión puede verse modificado o limitado ante motivos de interés público que estén sustentados en estudios técnicos, tales como la propia viabilidad del régimen o fondo, siempre y cuando tales modificaciones no afecten su contenido mínimo. En tal sentido, el Convenio 102 de la OIT debe ser examinado en su integralidad y conforme a los principios que lo informan, amén que no se pueden dejar de advertir las diferencias esenciales entre el momento histórico cuando aquel fue acordado (año 1952), con la coyuntura actual, en la que fenómenos como el importante aumento de la expectativa de vida y una menor tasa de natalidad, definitivamente deben ser considerados en aras de un régimen de pensiones basado en el principio de la solidaridad social y, repito, la sostenibilidad financiera. Así, de acuerdo con el Centro Centroamericano de Población de la UCR, la esperanza de vida al nacer en Costa Rica es de 59.61 años en el año 1952 (hombres 58.52 / mujeres 60.76), que pasa a 79.04 en el 2010 (hombres 76.49 / mujeres 81.71). Por su parte, la tasa global de fecundidad por mujer baja de 6.46 en el año 1952 a 1.83 en el 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html y http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html).En igual sentido, según el Banco Mundial, la expectativa de vida al nacer en Costa Rica es de 60.58 años en el año 1960 y alcanza 79.61 en el 2015, mientras que la tasa de fertilidad (nacimientos por cada mujer) en Costa Rica es de 6.5 hijos para el año 1960, y cae a 1.8 en el 2015 (ver https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR y https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” La naturaleza jurídica de este tipo de jubilación o pensión –que no es de capitalización individual- se deriva del principio de solidaridad social, íntimamente vinculado con la vocación social del Estado costarricense. La base normativa de tal aseveración se encuentra en la Constitución Política:

“ARTÍCULO 50.- El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza. (…)

ARTÍCULO 74.- Los derechos y beneficios a que este Capítulo se refiere son irrenunciables. Su enumeración no excluye otros que se deriven del principio cristiano de justicia social y que indique la ley; serán aplicables por igual a todos los factores concurrentes al proceso de producción, y reglamentados en una legislación social y de trabajo, a fin de procurar una política permanente de solidaridad nacional.” Tal como se dijo, esta normativa constitucional ha sido desarrollada por la Sala con el fin de delinear el principio de solidaridad. Un buen ejemplo de ese desarrollo es el siguiente:

“III.- Sobre el principio de solidaridad. Una adecuada lectura de nuestro texto constitucional acarrea necesariamente la conclusión de que el sistema de derechos fundamentales en él establecido no se encuentra basado en el individualismo utilitarista, sino más bien en una concepción del hombre en el marco de la sociedad en la que se desenvuelve. La Constitución Política de 1.949 parte de la noción de que el ser humano no puede desarrollarse integralmente por sí solo, sino que para ello requiere de la participación de todos los otros miembros de la sociedad. De hecho, expresamente el numeral 50 constitucional impone como uno de los deberes fundamentales del Estado costarricense la búsqueda de una adecuada distribución de la riqueza, objetivo que no puede lograr sin el concurso de sus habitantes. En otras palabras, para lograr una más homogénea estratificación social, los individuos deben contribuir de acuerdo con sus posibilidades, en beneficio de quienes menos poseen. Lo anterior es un derecho fundamental de las personas que ocupan los estratos inferiores, y un deber de todos, principalmente los más beneficiados por el sistema económico. La riqueza en una sociedad no es producida apenas por quienes poseen los medios de producción, sino también por quienes contribuyen a ella con su mano de obra, con su trabajo. En consecuencia, los beneficios producidos por el mercado deben ser redireccionados a fin de que no rediten únicamente en favor de ciertas clases sociales. Relacionado este principio con el de justicia social, positivizado en el ordinal 74 de la Constitución, según el cual las personas deben colaborar recíprocamente en aras de preservar la dignidad humana de todos los miembros de la comunidad, tenemos que el constituyente buscó fomentar una sociedad donde la solidaridad fuera la regla general de convivencia; donde la realización de pequeños sacrificios en favor de grandes metas sociales estuviera por encima de los intereses individuales; es lo que normalmente se conoce como Estado social y democrático de Derecho. Podría así afirmarse que la solidaridad entre los miembros de la colectividad es un principio de rango constitucional, que legitimaría válidamente la imposición de ciertas cargas en favor de una justa redistribución de la riqueza. (Ver en este mismo sentido las sentencias de esta Sala números 1441-92, 5125-93)” (Sentencia n.° 3338-99 de las 18:45 horas del 5 de mayo de 1999).

A partir de estas premisas considero que el análisis de la acción de inconstitucionalidad debe efectuarse desde otra perspectiva, diferente a la acogida por el voto de mayoría. Efectivamente, verifico que la sentencia valoró solo de manera parcial los elementos jurídicos relevantes para la decisión, toda vez que únicamente se concentró en el reproche de la parte accionante, relacionado con el principio de irretroactividad, sin hacer mayor reflexión sobre los elementos necesarios para que un régimen de pensiones sea sostenible y conforme al principio de solidaridad social. En mi criterio debe efectuarse un análisis integral y comprehensivo de la cuestión jurídica planteada, a fin de evitar una extensión inadecuada de los principios constitucionales, como sucedió en este caso con el principio de irretroactividad. En otras palabras, la Sala debió primero analizar la naturaleza de un régimen de pensiones y luego examinar el tema del principio de irretroactividad.

En el sub examine, considero que un régimen de pensiones solo sería constitucionalmente válido en el tanto fuera sostenible y respetara el principio de solidaridad social. En otras palabras, si el legislador concibiera un régimen insostenible, sin algún tipo de previsión para mantener su equilibrio presupuestario, o abiertamente regresivo, entonces tal régimen sería inconstitucional específicamente en cuanto a tal omisión por incumplir los postulados indicados.

De lo anterior derivo que el principio de solidaridad social y el de sostenibilidad del régimen están ínsitos en todo régimen social de pensiones desde el momento de su creación y deben ser tomados en cuenta al interpretar el articulado de tales regímenes, toda vez que constituyen herramientas que lo hacen viable a largo plazo y posibilitan el cumplimiento del Estado Social de Derecho.

La necesidad de que el régimen sea sostenible no es un elemento disponible para el legislador, sino un requisito impuesto también por la realidad material. Tal realidad no pudo ser negada ni siquiera en el voto de mayoría, el cual tuvo que ceder ante la hipótesis de que un régimen de pensiones colapse:

“Para este Tribunal, sólo en un caso extraordinario –una debacle financiera del Estado o del respectivo régimen de jubilaciones y pensiones-, debidamente comprobada –técnica del control de los hechos determinantes-, sería posible modificar las condiciones originales en las que fue otorgada la jubilación o la pensión, escenario que no se está en el presente caso a pesar de la crisis fiscal por la cual atraviesa el gobierno central –déficit fiscal superior a un 3% del P.I.B. y que podría llegar a un 7% -, toda vez que si se adoptan las medidas adecuadas y efectivas para reducir el citado déficit en el corto plazo, es posible cumplir con el principio constitucional del equilibrio financiero consagrado en el numeral 176 constitucional.” En otras palabras, el criterio de mayoría sí aceptaría legislación contraria al principio de irretroactividad en caso de “debacle”. Considero innecesaria tal contradicción porque parto de que la sostenibilidad es un principio inherente a todo régimen solidario de pensiones y obliga a sus participantes –todos ellos- a contribuir en su mantenimiento. Efectivamente, la sostenibilidad del régimen permea la naturaleza jurídica de las pensiones y jubilaciones ligadas a él. El caso hipotético planteado por la mayoría de esta Sala ejemplifica claramente tal ligamen. La satisfacción de la pensión o jubilación se encuentra condicionada por la sostenibilidad del régimen de pensiones. Si el régimen deviene insolvente, como en el caso de la “debacle”, entonces todos los participantes en él verán frustradas sus pretensiones. De ahí que sea factible –incluso necesario- modificar las condiciones de todas pensiones o jubilaciones, siempre y cuando las modificaciones tengan por finalidad proteger la sostenibilidad del régimen y respeten el principio de razonabilidad y proporcionalidad. El acatamiento de este último garantiza, por ejemplo, que tales derechos no serán vaciados de contenido por una reforma posterior.

(…)

Finalizo este argumento acotando que el artículo 34 constitucional sí protege los derechos patrimoniales que ya han sido recibidos por los beneficiarios de un régimen. En ese sentido, no podría promulgarse legislación nueva para pretender la repetición de lo que fue pagado de manera justa con base en la legislación derogada”.

3.- Acerca del considerando XV.

En relación con el vicio de que no se suspendió el trámite del proyecto por el plazo de ocho días hábiles según el procedimiento especial, advierto que ciertamente suscribí la sentencia n.º 2012004621 de las 16:00 horas del 10 de abril de 2012, en la que se resaltó “El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado (…) Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una mayoría agravada.” (Destacado no corresponde al original). Justamente, el hecho de que el margen referido decrezca de modo notable no significa que del todo no haya margen. Ahora, en el sub lite, de acuerdo con el razonamiento del voto de mayoría no se está ante un vicio de tal magnitud como para sustentar una falta de relevancia constitucional, con lo que coincido, toda vez que, reitero, incluso en los procedimientos especiales en cuestión, aunque con menor espacio, el control de constitucionalidad siempre posibilita una distinción entre vicios sustanciales y los que no lo son.

4.- Con respecto a los considerandos XLV, XLVI y XLVII.

En cuanto a la naturaleza de la contribución especial, solidaria y redistributiva, la redacción final del voto de mayoría cita jurisprudencia, según la cual aquella no es asimilable al tributo, y concluye que es una limitación constitucionalmente válida al derecho a la jubilación, surgida del carácter social de ese derecho. Luego menciona que no es un impuesto, sino una carga parafiscal. También indica que, como aportación a la seguridad social, es una contribución parafiscal impuesta por el Estado en ejercicio de la potestad de imperio, que solo se puede crear a través de una ley formal. De igual forma señala que es un tributo destinado a una finalidad económica y social.

Al respecto, debo mencionar que, a los efectos de esta acción de inconstitucionalidad, mi posición es que la contribución especial, solidaria y redistributiva es de naturaleza parafiscal y configura un tipo de tributo. Precisamente, es de pago obligatorio para quienes se encuentren en el supuesto de la norma y, de acuerdo con el numeral 236 bis de la Ley Orgánica del Poder Judicial, los recursos que se obtengan de esta ingresan al Fondo de Jubilaciones y Pensiones del Poder Judicial, es decir, al mismo fondo al que pertenecen los contribuyentes. Además, este tipo de contribución debe ser habilitada legalmente, por lo que la Asamblea Legislativa es competente para estatuir el tributo y definir sus elementos.

Por otra parte, si bien se acusa que hay doble imposición con la cotización general y la contribución especial, solidaria y redistributiva, clarifico que esta última grava de modo progresivo solo las pensiones y jubilaciones más altas, con lo que se pretende dar sostenibilidad al régimen al que pertenecen. En ese sentido, considero que a priori no se trata de una doble imposición, sino del establecimiento de una carga tributaria adicional a quienes ostentan mayor capacidad económica. Si bien ambas figuras forman parte de los ingresos del Fondo de Jubilaciones y Pensiones del Poder Judicial, no menos cierto es que se basan en supuestos distintos: por un lado, está el aporte general del pensionado o jubilado al régimen y, por otro, la contribución que deben pagar quienes tienen las pensiones más altas. En ese sentido, el numeral 71.1 del convenio C102 de la OIT -Convenio sobre la Seguridad Social (norma mínima)- estatuye, que el costo de las prestaciones concedidas en aplicación de ese convenio y los gastos de administración de estas “deberán ser financiados colectivamente por medio de cotizaciones o de impuestos, o por ambos medios a la vez, en forma que evite que las personas de recursos económicos modestos tengan que soportar una carga demasiado onerosa y que tenga en cuenta la situación económica del Miembro y la de las categorías de personas protegidas”. En otras palabras, ese instrumento internacional posibilita la financiación del régimen por dos medios a la vez, a fin de que no se cargue a las personas de ingresos más bajos con cargas demasiado onerosas. Ergo, resulta procedente, amén del aporte general de las personas trabajadoras y pensionadas, imponer una carga tributaria parafiscal destinada a gravar únicamente las pensiones y jubilaciones más altas que fueron otorgadas a la luz de condiciones previas mucho más beneficiosas.

En adición, debo aclarar que, a los efectos de variar las condiciones de un régimen de pensiones y asignar contribuciones especiales para corregir alguna situación de insolvencia, sí resulta necesario demostrar mediante estudios técnicos la insolvencia de este y la idoneidad de las medidas correctivas. Lo anterior es imprescindible, salvo que se trate de beneficios dispuestos en normas absoluta y manifiestamente inconstitucionales, en cuyo caso la magnitud del vicio amerita la supresión de la disposición sin reconocer derechos. En este sentido, no se pueden perpetuar disposiciones legales palmariamente antijurídicas desde su base, verbigracia, como una pensión vitalicia a los hijos y las hijas de personas legisladoras o recibir beneficios absurdos y exorbitantes. En estos últimos supuestos, he afirmado que sus efectos deberían tenerse justamente como inexistentes para el ordenamiento desde el propio momento de su creación. Sobre este tema, di razones diferentes en la sentencia n.º 2020019274 de las 16:30 horas de 7 de octubre de 2020, en estos términos:

“V.- Razones diferentes en cuanto a los reclamos de fondo relacionados con las leyes n.os 9381 y 9388. Previo a conocer los alegatos de fondo, es importante tener claro que estas normas lo que hacen es eliminar el aumento del 30% anual que venían gozando un grupo restringido de personas pensionadas, y lo cambian por uno basado en el aumento del costo de la vida. Precisamente, el quid del asunto consiste en definir si tal reforma es conforme al Derecho de la Constitución.

En primer lugar, estimo que el aumento del 30% anual de que gozaban algunas personas del régimen conocido como Hacienda-Diputados, por sí mismo significa un abuso grosero e imposible de justificar, una lesión al orden constitucional de tan abrumadora magnitud, que desde su propia génesis configura lo que denomino “una norma jurídica inexistente” por razones de inconstitucionalidad, en aplicación mutatis mutandi de la doctrina del acto jurídico inexistente por cuestiones de legalidad, tesitura sostenida por un sector relevante de la ciencia jurídica.

Como acaece en el sub examine, merced a la particular gravedad de la violación al orden constitucional en cuanto al privilegio especialmente desbordado que se le ha conferido a un determinado grupo (nada menos que un aumento anual del 30% en las pensiones sin consideración alguna al estado de la economía y el valor real de la pensión conferida), considero que no se está ante la mera nulidad de una normativa a causa de una declaratoria jurisdiccional común de inconstitucionalidad, sino que, en esta situación extraordinaria, el restablecimiento del orden constitucional demanda una acción mucho más drástica que la simple nulidad. La inexistencia designa una inconstitucionalidad profundamente grosera de la norma impugnada (incluso, en otro proceso podría estar referido a un acto), un grado extremo de nulidad por motivos de inconstitucionalidad a partir del cual se advierte la ausencia de un elemento esencial en el momento propio del surgimiento de la norma objeto de la acción.

Justamente, debido a ese vicio extremo en la génesis propia de la norma, resulta improcedente preservar los efectos derivados de las disposiciones legales manifiestamente inconstitucionales, irrazonables y carentes de justificación alguna, como los favorecimientos económicos otorgados contra los elementos más básicos de la justicia social y la sostenibilidad de un régimen de pensiones. Se trata de disposiciones palmariamente inconstitucionales en su base, merced a lo cual los privilegios desmedidos por ellas otorgados deben tenerse como jurídicamente inexistentes.

Lo anterior se torna aún más evidente y notorio ante la cruda realidad económica del país y las condiciones de los demás regímenes. De ahí que una reforma legal que cambie ese método fijo de revalorización por uno sustentado en criterios objetivos, como el aumento del costo de la vida, no solo enmienda un privilegio desbordado y definitivamente inconstitucional por violación al principio del sano manejo de los fondos públicos, sino que, además, contribuye a la justicia social.

Siguiendo la misma línea de mi voto salvado en la sentencia n. o 2018-19030 de las 17:15 horas de 14 de noviembre de 2018 (el cual cité supra) y los razonamientos que desarrollé líneas arriba en cuanto al principio de irretroactividad, considero que la sostenibilidad es un principio inherente a todo régimen solidario de pensiones. De ahí que estimo constitucionalmente válido, conforme al principio de solidaridad social, que se impongan cargas y se modifiquen las condiciones de las pensiones o jubilaciones más altas, siempre y cuando los ajustes tengan como finalidad resguardar la sostenibilidad del régimen de pensiones y, en adición, se respeten tanto el principio de razonabilidad y proporcionalidad, como el derecho fundamental a la dignidad humana de las personas adultas mayores. Nótese que, como tesis de principio, es válido que, a través de un mecanismo de aumento de pensión o jubilación, la pensión de la persona beneficiada mantenga su valor en términos reales en relación con el poder adquisitivo y las vicisitudes con el paso del tiempo, mas no que la pensión o su metodología de incremento sirvan de instrumento para enriquecer de forma injustificada y antojadiza a unas pocas personas.

En el sub lite, no puede ser irrazonable ni desproporcionado que se elimine un privilegio grotesco y desmedido como lo fue el aumento al 30% anual. Por el contrario, lo que resulta del todo irrazonable y desproporcionado es resguardar un incremento de tal magnitud para un grupo restringido de personas. Es importante subrayar que, concerniente a los montos de las pensiones, tal y como lo indiqué en el considerando anterior, el legislador, por medio de otras normas, fijó mínimos exentos de las contribuciones especiales y una escala gradual de afectación progresiva, lo que, desde mi perspectiva, garantiza montos más que dignos a las personas adultas mayores, máxime en los casos de quienes se beneficiaron con aumentos anuales del 30% a lo largo del tiempo y tienen las pensiones más altas. En ese sentido, si las leyes que modifican las situaciones jurídicas de los beneficiarios salvaguardan la dignidad de la persona al tiempo que son proporcionales, razonables y justificadas, resulta insostenible una pretendida inmutabilidad del ordenamiento acudiendo a situaciones jurídicas consolidadas, pues estas deben ceder ante los principios de la solidaridad social y de sano manejo de los fondos públicos. A partir de lo anterior, el legislador tiene libertad para regular los mecanismos de reajuste de las pensiones de los regímenes que se encuentren en crisis de sostenibilidad u otorgan privilegios abiertamente desproporcionados y grotescos”.

Asimismo, debo precisar que, tal y como lo consigné en mi voto salvado al considerando XLI de este pronunciamiento, el 50% acotado por la Mayoría como límite máximo de contribuciones y deducciones se basó en una interpretación forzada del numeral 71.2 del convenio C102 de la OIT, ya que el artículo 67 de ese instrumento internacional es el que aplica a las reducciones de las pensiones.

En este sentido, el ordinal 71.2 regula:

“2. El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrán ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una rama especial”.

Por su parte, el ordinal 67 del convenio estatuye:

“Artículo 67 Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes:

(i) apartado b) del artículo 15, para la parte III; (ii) apartado b) del artículo 27, para la parte V; (iii) apartado b) del artículo 55, para la parte IX; (iv) apartado b) del artículo 61, para la parte X.

CUADRO ANEXO A LA PARTE XI.-PAGOS PERIÓDICOS AL BENEFICIARIO TIPO:

Partes Contingencias Beneficiarios tipo Porcentaje III Enfermedad Hombre con cónyuge y dos hijos 45 IV Desempleo Hombre con cónyuge y dos hijos 45 V Vejez Hombre con cónyuge en edad de pensión 40 VI Accidentes del trabajo y enfermedades profesionales:

Incapacidad para trabajar Hombre con cónyuge y dos hijos 50 Invalidez Hombre con cónyuge y dos hijos 50 Sobrevivientes Viuda con dos hijos 40 VIII Maternidad Mujer 45 IX Invalidez Hombre con cónyuge y dos hijos 40 X Sobrevivientes Viuda con dos hijos 40 En consecuencia, como se puede observar de la lectura de los numerales citados, en la redacción que finalmente hace la Mayoría se le cambia de manera innecesaria el sentido jurídico-normativo al numeral 71.2 para adecuarlo al caso concreto y fijar un porcentaje máximo del 50%, obviando así la existencia del ordinal 67 del instrumento internacional que puntualmente regula lo atinente a las limitaciones que se les pueden imponer a las pensiones. En adición, nótese que el artículo 71.2 está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección; es decir, tal norma regula a los “asalariados” (población económicamente activa), pero no a los “pensionados o jubilados”.

Partiendo de lo anterior, de forma consecuente con la línea que he venido sosteniendo, no consta que los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial excedan automáticamente la barrera del 40% de un salario de referencia, contemplada en el ordinal 67 del convenio C102 de la OIT. Obsérvese, además, que el límite del 55%, fijado en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial está relacionado con el monto bruto de la pensión, mientras que el 40% convencional con un salario de referencia, por lo que es en el ámbito de la aplicación de la norma legal, donde se debe valorar si, en algún asunto concreto, la barrera contenida en el instrumento internacional se superpone al parámetro previsto en la legislación.

Con base en lo anterior, disiento de la afirmación de la versión final del de Mayoría en cuanto a que la contribución solo resulta confiscatoria en tanto exceda el 50% de las cargas que debe soportar una persona sobre su pensión o jubilación, pues, tal y como lo indiqué supra, estimo que el parámetro es otro y no consta su transgresión automática y evidente con el contenido de los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial.

5.-En cuanto a los considerandos L y LI.

En estos considerandos se asevera que las cotizaciones y contribuciones no pueden exceder el 50% del monto bruto de la pensión en concordancia con lo dispuesto en la sentencia n.º 2020-19274; sin embargo, atinente a este punto reitero mi tesitura de que el tope del 55% regulado en los ordinales 236 y 236 bis de la Ley Orgánica del Poder Judicial no es inconstitucional per se. Ahí, también abordé la posibilidad de imponer, amén de la contribución obligatoria al régimen, una contribución especial adicional a las pensiones más altas. Por consiguiente, remito a los razonamientos consignados en el apartado anterior en lo relativo a estos temas.

Ahora, es importante mencionar que la ley n.º 9544, al adicionar el artículo 236 bis, consignó que la contribución especial aplicaba sobre el exceso de la suma de diez salarios base del puesto más bajo pagado en el Poder Judicial (al momento de entrada en vigencia de esa ley, sobre las pensiones de más de ¢4.138.000,00 según el índice salarial, ver https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial). Sin embargo, no está de más aclarar que el inciso a) de esta norma posteriormente fue reformado por la ley n.º 9796 de 5 de diciembre de 2019 y fijó la contribución a partir del exceso de la suma seis salarios base del puesto más bajo pagado en el Poder Judicial (al primer semestre de 2021, sobre las pensiones de más de ¢ 2.602.800,00 según el índice salarial https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).

En adición, la ley n.º 9544 reguló la aplicación de la contribución especial de forma escalonada: “a) Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso. b) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso. c) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso. d) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso. e) Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%)”.

De ahí que el monto exento y la contribución escalonada fijada a pensiones de más de cuatro millones de colones garantizan sumas más que dignas para la satisfacción de las necesidades de las personas pensionadas y jubiladas, incluso las adultas mayores. Asimismo, considero que la contribución especial es progresiva y gradual a las pensiones más altas, sin que esta, aunada a las demás contribuciones, cargas y deducciones, puedan exceder el 55% de la totalidad del monto bruto de la pensión. En ese sentido, no solo no se demostró que el monto de la pensión impidiera a las personas pensionadas vivir dignamente o que fuera insuficiente, sino que, otrosí, corresponde al ámbito de la aplicación de la norma legal valorar si, en algún asunto concreto, la barrera contemplada en el instrumento internacional (numeral 67 del convenio C102 de la OIT) se superpone al parámetro fijado en la legislación.

Igualmente reitero que la contribución especial impuesta a las pensiones más altas constituye una medida acorde al principio de solidaridad social y, además, es razonable ante el inminente problema de insolvencia que presentaba el Régimen de Pensiones y Jubilaciones del Poder Judicial.

Por último, no estimo que la deducción de un cinco por mil (5 por 1000) de los salarios y pensiones destinados a financiar el funcionamiento de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial sea abiertamente desproporcionada o irrazonable. De la misma manera, si alguna de las partes considera que excede el máximo de cotizaciones, contribuciones y deducciones podrá formular los reclamos correspondientes a los efectos de que estos se ajusten.

6.- En lo relativo al considerando LIV.

Sobre este considerando, debo subrayar que el numeral 34 constitucional recoge el principio de irretroactividad y la protección de los derechos adquiridos y las situaciones jurídicas consolidadas:

“ARTÍCULO 34.- A ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas”.

En relación con lo regulado en este ordinal, la Sala señaló en la sentencia n.° 2765-97 de las 15:03 del 20 de mayo de 1997, “Los conceptos de “derechos adquiridos” y “situaciones jurídicas consolidadas” aparecen estrechamente relacionadas en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en lo que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la “situación jurídica consolidada” representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante es cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo “si…, entonces…M, vale decir: si se ha dado el hecho condicionante, entonces la “situación jurídica consolidada” implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derechos adquiridos o situaciones jurídicas consolidadas), el ordenamiento protege –tornándola intangible – la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y certeza jurídica”.

Al respecto, me parece importante precisar que las sumas recibidas antes de la entrada en vigor de la ley n.º 9544 sí constituyen derechos adquiridos y, de hecho, las normas cuestionadas no los afectan pues ya ingresaron a la esfera jurídica patrimonial de las personas pensionadas. No obstante, es improcedente sostener que las pensiones que han recibido configuren un derecho adquirido para recibir el mismo monto en los meses futuros, ya que no son circunstancias consumadas y, evidentemente, aún no han ingresado a la esfera patrimonial de la persona.

Ahora, en cuanto a la alegada transgresión a las situaciones jurídicas consolidadas, si bien, como tesis de principio, se deben respetar las condiciones en las que se pensionaron o jubilaron las personas, esto no significa que a las prestaciones más altas no se les puedan imponer cargas tributarias progresivas destinadas a corregir alguna situación de insolvencia del régimen y así contribuir con su sostenibilidad. De igual modo, el cambio de las condiciones para optar por la jubilación a las personas funcionarias que se encuentran activas tampoco resulta ilegítimo, porque ellas tan solo tienen una expectativa de pensión o jubilación, salvo cuando se hallen próximos a adquirir el derecho (dentro de los 18 meses siguientes, según lo ha avalado la jurisprudencia de la Sala y se indica en el considerando LXIX de esta sentencia).

7.- En cuanto a los considerandos LV, LVI, LVII y LVIII.

En estos considerandos se abordan los alegatos de las partes accionantes en tanto acusan que la aplicación de las normas 236 y 236 bis de la Ley Orgánica del Poder Judicial a los adultos mayores jubilados y beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial resulta abusiva y arbitraria, puesto que agrava sus condiciones socioeconómicas y ha implicado una disminución abrupta de sus ingresos, lo que que lesiona normativa nacional e internacional referida a la protección de adultos mayores, a su derecho a la calidad de vida y a disfrutar de una vejez digna.

Atinente a estos extremos, remito a las consideraciones desarrolladas por mi persona en los puntos anteriores relativos a las contribuciones generales y especiales, así como a las demás cargas. Reitero, que el 50% acotado por la Mayoría como límite máximo de contribuciones y deducciones se basó en una interpretación forzada del numeral 71.2 del convenio C102 de la OIT, ya que el artículo 67 de ese instrumento internacional es el que aplica a las reducciones de las pensiones. En ese sentido, no consta que los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial excedan automáticamente la barrera del 40% de un salario de referencia, contemplada en el ordinal 67 del convenio C102 de la OIT. Obsérvese, además, que el límite del 55%, fijado en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial está relacionado con el monto bruto de la pensión, mientras que el 40% convencional con un salario de referencia, por lo que es en el ámbito de la aplicación de la norma legal, donde se debe valorar si, en algún asunto concreto, la barrera contenida en el instrumento internacional se superpone al parámetro previsto en la legislación.

Por lo demás, carece de sustento afirmar que las disposiciones cuestionadas transgredan la protección internacional de que gozan las personas adultas mayores, ya que no solo se están tomando medidas para resguardar la sostenibilidad del régimen, sino también, en principio, se les está garantizando un ingreso suficiente a las personas pensionadas y jubiladas. En este sentido, reitero que el monto exento de la contribución especial y gravamen escalonado de esta a las pensiones de más de cuatro millones de colones contempla sumas más que dignas para la satisfacción de las necesidades de una persona adulta mayor.

8.- Respecto del considerando LXX.

En cuanto a mi criterio para considerar improcedente la pretensión de declaratoria de inconstitucionalidad por conexidad de la ley n.º 9796 de 5 de diciembre de 2019, limito mi argumentación a los razonamientos expuestos por el voto de mayoría con excepción de lo planteado en el último párrafo, toda vez que el incumplimiento del presupuesto del artículo 89 citado conlleva un motivo más que suficiente para declarar sin lugar este extremo de la acción.

9.- Concerniente al considerando LXXX.

En relación con este considerando, aclaro que dilucidar si hubo o no cambios en los contratos de trabajo de las personas funcionarias del Poder Judicial es una cuestión propia de ser ventilado en la vía común, mas no en una acción de inconstitucionalidad”.

De ahí que, a partir de tales precisiones efectuadas en mi nota y sin compartir aquello que la contradijere, o bien, se sustentare en las sentencias nros. 2020-19274 de las 16:30 horas de 7 de octubre de 2020 y 2024006250 de las 16:30 horas de 6 de marzo de 2024, me encuentro de acuerdo con la desestimatoria de las acusadas transgresiones a la doble imposición tributaria, así como a los principios de no retroactividad; seguridad jurídica; igualdad; razonabilidad y proporcionalidad; y solidaridad. Finalmente, comparto los razonamientos expuestos en la sentencia de esta acción, con respecto a la falta de argumentación por parte del accionante no solo sobre la supuesta violación a los principios de solidaridad y de razonabilidad y proporcionalidad, sino también en cuanto a la presunta carencia de estudios técnicos.

Por tanto:

Por mayoría se declara parcialmente con lugar la acción de inconstitucionalidad. En consecuencia, se anula el porcentaje de cotización y la contribución especial establecido en el ordinal 5 de la Ley No. 9796 en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada del régimen del Poder Judicial. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia o la paz social, la Sala gradúa y dimensiona el efecto de esta resolución, de modo que, a partir del mes siguiente de la notificación de esta sentencia, la Administración Tributaria deberá realizar el ajuste correspondiente conforme a esta sentencia, de tal manera que la carga tributaria que pesa sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. En lo demás, se declara sin lugar la acción de inconstitucionalidad. El magistrado Rueda Leal emite voto particular y declara sin lugar la acción en todos sus extremos, por cuanto, según el texto expreso del artículo 67 del convenio nro. 102 de la OIT de 1952 denominado ‘Convenio sobre la Seguridad Social (norma mínima)’, la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido del artículo 5 de la ley nro. 9796. Comuníquese este pronunciamiento a los Poderes Legislativo y Judicial, así como a la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese.- Fernando Castillo V.

Paul Rueda L. Luis Fdo. Salazar A.

Jorge Araya G. Aracelly Pacheco S.

Huberth Fernández A. Ana Cristina Fernández A.

1 [1] Como se explicará en líneas infra, este porcentaje se debe leer como 50%, según lo dispuesto por esta Sala en el Voto No. 2021-11957 de las 17:00 hrs. de 25 de mayo de 2021.