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Res. 92528-2025 Sala Constitucional · Sala Constitucional · 13/11/2025
OutcomeResultado
The Chamber admitted the challenge to the Gulf of Papagayo Tourism Project’s legal regime for review, requested responses from the authorities, and clarified that the challenged provisions generally remain valid and applicable until a decision on the merits is issued.La Sala admitió para estudio la acción contra el régimen jurídico del Proyecto Turístico Golfo de Papagayo, confirió audiencia a las autoridades y aclaró que las normas impugnadas continúan vigentes y aplicables en general mientras no se resuelva el fondo.
SummaryResumen
The Constitutional Chamber admits a constitutional challenge against six groups of provisions governing the administration and development of the Gulf of Papagayo Tourism Project, including provisions of the Maritime-Terrestrial Zone Law, its regulation, two special statutes, a national-convenience decree, and the project’s Master Plan. The claimant argues that this regime allows the Costa Rican Tourism Institute to administer an uninterrupted coastal area that may contain forests, mangroves, wetlands, and other components of the State Natural Heritage, which allegedly fall under MINAE and SINAC authority. The claimant also challenges density and land-occupancy parameters as lacking scientific support and violating environmental principles. The order does not determine whether any provision is unconstitutional. It admits the action because the procedural requirements are satisfied, recognizes standing based on the diffuse interest in a healthy and ecologically balanced environment, grants the relevant authorities time to respond, and orders publication of the statutory notice. It expressly clarifies that admission does not generally suspend the validity or application of the challenged provisions.La Sala Constitucional da curso a una acción de inconstitucionalidad contra seis grupos de disposiciones que regulan la administración y el desarrollo del Proyecto Turístico Golfo de Papagayo, incluidas normas de la Ley sobre la Zona Marítimo Terrestre, su reglamento, dos leyes especiales, un decreto de conveniencia nacional y el Plan Maestro del proyecto. El accionante sostiene que este régimen permite al Instituto Costarricense de Turismo administrar de forma continua terrenos costeros que pueden contener bosques, manglares, humedales y otros componentes del Patrimonio Natural del Estado, cuya tutela correspondería al MINAE y al SINAC. También cuestiona parámetros de densidad y ocupación por carecer, según alega, de fundamento científico y vulnerar principios ambientales. La resolución no decide la constitucionalidad de las normas: admite la acción por cumplir los requisitos procesales, reconoce la legitimación fundada en el interés difuso ambiental, confiere audiencia a las autoridades y ordena publicar el aviso legal. Aclara que la admisión no suspende con carácter general la vigencia ni la aplicación de las disposiciones impugnadas.
Key excerptExtracto clave
This action is admitted because it satisfies the requirements established in Articles 73 through 79 of the Constitutional Jurisdiction Law. The claimant’s standing arises from Article 75, second paragraph, of the Constitutional Jurisdiction Law, because the claimant appears in defense of the diffuse interest in a healthy and ecologically balanced environment. Notice of the filing of the action shall be published in the Judicial Bulletin on three consecutive occasions. Legal effects of filing the action: The publication required by Article 81 of the Constitutional Jurisdiction Law is intended to inform courts and bodies that exhaust administrative remedies that the constitutional challenge has been filed, so that no final decision is issued, pending a ruling by the Chamber, in proceedings or procedures in which application of the challenged law, decree, provision, agreement, or resolution is at issue.Esta acción se admite por reunir los requisitos a que se refiere la Ley de la Jurisdicción Constitucional en sus artículos 73 a 79. La legitimación del accionante proviene del artículo 75, párrafo segundo, de la Ley de la Jurisdicción Constitucional, toda vez que acude en defensa del interés difuso a un ambiente sano y ecológicamente equilibrado. Publíquese por tres veces consecutivas un aviso en el Boletín Judicial sobre la interposición de la acción. Efectos jurídicos de la interposición de la acción: La publicación prevista en el numeral 81 de la Ley de la Jurisdicción Constitucional tiene por objeto poner en conocimiento de los tribunales y los órganos que agotan la vía administrativa, que la demanda de inconstitucionalidad ha sido establecida, a los efectos de que en los procesos o procedimientos en que se discuta la aplicación de la ley, decreto, disposición, acuerdo o resolución, tampoco se dicte resolución final mientras la Sala no haya hecho pronunciamiento del caso.
Pull quotesCitas destacadas
"La primera, y quizás la más importante, es que la interposición de una acción de inconstitucionalidad no suspende la eficacia y aplicabilidad en general de las normas."
"The first, and perhaps most important, rule is that filing a constitutional challenge does not suspend the general effectiveness and applicability of the provisions."
Efectos jurídicos de la interposición de la acción
"La primera, y quizás la más importante, es que la interposición de una acción de inconstitucionalidad no suspende la eficacia y aplicabilidad en general de las normas."
Efectos jurídicos de la interposición de la acción
"La segunda, es que solo se suspenden los actos de aplicación de las normas impugnadas por las autoridades judiciales en los procesos incoados ante ellas, o por las administrativas, en los procedimientos tendientes a agotar la vía administrativa, pero no su vigencia y aplicación en general."
"The second rule is that only acts applying the challenged provisions are suspended by judicial authorities in proceedings before them, or by administrative authorities in procedures intended to exhaust administrative remedies, but not the provisions’ general validity and application."
Efectos jurídicos de la interposición de la acción
"La segunda, es que solo se suspenden los actos de aplicación de las normas impugnadas por las autoridades judiciales en los procesos incoados ante ellas, o por las administrativas, en los procedimientos tendientes a agotar la vía administrativa, pero no su vigencia y aplicación en general."
Efectos jurídicos de la interposición de la acción
"Donde no existe contención en relación con la aplicación de la norma, no procede la suspensión de su eficacia y aplicabilidad."
"Where there is no dispute concerning application of the provision, suspension of its effectiveness and applicability is not warranted."
Efectos jurídicos de la interposición de la acción
"Donde no existe contención en relación con la aplicación de la norma, no procede la suspensión de su eficacia y aplicabilidad."
Efectos jurídicos de la interposición de la acción
"En otras palabras, en todos aquellos asuntos donde no existe un procedimiento de agotamiento de vía administrativa, en los términos arriba indicados, la norma debe continuarse aplicando, independientemente de si beneficia -acto administrativo favorable- o perjudica al justiciable -acto desfavorable no impugnado-."
"In other words, in every matter where there is no procedure for exhausting administrative remedies under the terms stated above, the provision must continue to be applied, regardless of whether it benefits the affected person through a favorable administrative act or harms that person through an unfavorable act that was not challenged."
Efectos jurídicos de la interposición de la acción
"En otras palabras, en todos aquellos asuntos donde no existe un procedimiento de agotamiento de vía administrativa, en los términos arriba indicados, la norma debe continuarse aplicando, independientemente de si beneficia -acto administrativo favorable- o perjudica al justiciable -acto desfavorable no impugnado-."
Efectos jurídicos de la interposición de la acción
Full documentDocumento completo
*250339260007CO* CASE FILE:
PROCEEDING:
ACTION OF UNCONSTITUTIONALITY PETITIONER:
[Name 001] CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at fifteen hours forty-six minutes on the thirteenth of November, two thousand twenty-five.
The constitutional challenge filed by [Nombre 001], of legal age, attorney, married once, resident of Dirección5934, identity card [CED72], is admitted for consideration, seeking a declaration that the following provisions are unconstitutional:
Third section: the petitioner argues that, with respect to this area, it must also be made clear that the enactment of Law No. 6370, known as the Law Declaring the Golfo Papagayo Tourism Project to Be of Public Utility, dated 20 de agosto de 1979, redefined the project’s geographical boundaries within the ZMT from those established in 1977, authorizing Nombre3394 to administer a larger coastal area. That statute even provided as follows, expanding the exception or threshold regime, in the final paragraph of its first article: “Article 1.-The real property, whether entire parcels, portions thereof, rights, or legitimate property interests, which by reason of their location is necessary to carry out and implement the tourism project in Bahía Culebra, within the jurisdiction of the province of Guanacaste, is hereby declared to be of public utility. The project shall be situated, based on the Lambert Costa Rica grid of map sheet 3047.1 Carrillo Norte, Costa Rica 1: 50.000 (prepared by the Instituto Geográfico Nacional), between the following coordinates: 2.94 North with 3.50 East and 2.94 North with 3.62 East, as the northern boundary; 2.85 North with 3.50 East and 2.85 North with 3.54 East and 2.84 North with 3.54 East, and 2.84 North with 3.62 East as the southern boundary; 2.94 North with 3.62 East and 2.84 North with 3.62 East, as the eastern boundary; and 2.94 North with 3.50 East and 2.85 North with 3.50 East, and 2.85 North with 3.54 East and 2.84 North with 3.54 East, as the western boundary.
Said territorial portion encompasses the maritime area of the Pacific coastline located from Punta Cabuya to the north, to one kilometer south of Punta Ballena…” (Emphasis added by the petitioner). In view of the foregoing, for purposes of this constitutional challenge, the petitioner states that, under the theory of the case he has been presenting, the aforementioned expansion, highlighted in bold, must be treated as one that warrants separate consideration, so that at least an interpretive ruling may be issued stating, as he argued in the preceding section, that the area “from Punta Cabuya to the north, to one kilometer south of Punta Ballena” may remain under the administration of the ICT, EXCEPT in geographical areas containing forest, mangrove, or wetland, because administration of that PNE shall be the responsibility of SINAC and MINAE.
Fourth section: the petitioner states that consideration must be given to the fact that the power and authority to administer the entire coastline continuously within the geographical area described in provision 74, or Article 1 of Law No. 6370, entails the ability to grant concessions (concesiones) to third parties in locations containing PNE. This is extremely serious and environmentally dangerous because it could lead to the removal of undergrowth (sotobosque), the felling of trees, and harm to or disruption of life cycles within biological corridors located in the concession areas. Accordingly, it is essential that the foregoing be taken into account to prevent irreversible damage to the forest ecosystems located within the ZMT of the tourism project in question. Moreover, such “administration” could also lead to the view that there is authority to lay out routes or streets in forested locations, or to build public roads in locations containing wetlands, forests, or mangroves in order to facilitate “tourism.” This could threaten wildlife within the ZMT, thereby also violating the principle of ecosystem irreducibility (principio de irreductibilidad de los ecosistemas), and could even infringe the right to a healthy climate through the loss of vegetation and the elimination of vital locations or strips where carbon sequestration occurs.
The aforementioned principle of irreducibility seeks to maintain essential ecological processes in forests and is grounded both in the Convention on Biological Diversity (Law No. 7416) and in the Biodiversity Law, as well as in the Malawi Principles for the Ecosystem Approach contained in the Regulations to the Biodiversity Law, which conceptualize that approach as a strategy for the integrated management of land, water, and living resources. These include Principle 5, which states: “For the purpose of maintaining ecosystem services, conservation of ecosystem structure and functioning should be a priority objective,” and Principle 6, which states: “Ecosystems must be managed within the limits of their functioning.” Therefore, the principle of irreducibility of relevant ecosystems may be derived, supported, and developed on the basis of both international environmental law and domestic constitutional, statutory, and regulatory provisions. He states that all these provisions are supported by constitutional Articles 7, 48, 50, and 89, which address environmental human rights.
For that reason, he insists on emphasizing that treating Nombre3394’s administration of the project’s specified coastal strip as uninterrupted is unconstitutional and contrary to international conventions. Various other provisions also impose the obligation to prevent land-use change (cambio de uso de suelo) in areas with forest cover (cobertura forestal) and land suitable for forestry within the ZMT, as well as the duty to restore deforested areas or those granted as concessions under Nombre3394’s abusive administrative authority. Among the applicable legal instruments, he cites the following: • The third paragraph of Article 3 of the United Nations Framework Convention on Climate Change provides that the States Parties must “take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects,” while Article 4 establishes the commitment to promote the conservation and enhancement of sinks and reservoirs of greenhouse gases, including forests. • Article 8 of the Convention on Biological Diversity establishes the duty of the States Parties to manage resources “important for the conservation of biological diversity, whether within or outside protected areas, with a view to ensuring their conservation,” as well as to promote “the protection of ecosystems and natural habitats and the maintenance of viable populations of species in natural surroundings.” • Article 10 of the Convention for the Conservation of Biodiversity and the Protection of Priority Wilderness Areas in Central America contains the State’s obligation to “take all possible measures to ensure the conservation of biodiversity,” including measures “that contribute to conserving natural habitats and their populations of native species.” • Article 3 of the Regional Convention for the Management and Conservation of Natural Forest Ecosystems and the Development of Forest Plantations enshrines the commitment of the States Parties to promote land use consistent with the land’s best capability; prioritize the rehabilitation of degraded and secondary forests; and halt or reduce pressure to convert primary natural forest to other land uses. • Along the same lines, but with respect to mangroves, Article 7 of Executive Decree No. 22550-MIRENEM provides that areas from which mangroves have been removed shall retain their status as mangrove areas.
This provision is of the utmost importance because it establishes their irreducibility and thereby seeks to prevent mangrove areas and wetlands generally from being subjected to land-use change after they have been degraded. Meanwhile, Article 98 of the Wildlife Conservation Law expressly establishes the obligation to restore this type of ecosystem. • With respect to landscape, Article 72 of the Organic Law of the Environment, read in conjunction with constitutional Article 89, provides that when a project requires the landscape to be affected, the resulting landscape must be of at least the same quality as the previous one. Constitutional case law, through decisions Nos. 3705-1993 and 6324-2003, has likewise stated that landscape is a resource forming part of the fundamental right to the environment and is therefore protected under constitutional Articles 50 and 89. He also cites recital VIII of constitutional decision 16975-2008 dated 12 de noviembre de 2008.
He states that, because such a broadly worded provision encompasses an area containing fragile ecosystems, it is vitally important for this Chamber to consider everything stated above, as well as the novel right to a healthy climate that he has discussed. That right was recognized in the recent Advisory Opinion 32/25 of the Inter-American Court of Human Rights, which establishes obligations to reduce or mitigate the impact of climate change, in which forests and wetlands play a fundamental role.
Fifth section: the petitioner also challenges Article 93 of Executive Decree 7841-P, the Regulations to Law No. 6043, insofar as it regulates the aforementioned provision 74, which states: “Special Provisions. Article 93.-In accordance with Article 74 of the Law, the maritime-terrestrial zone included within the Bahía Culebra Integrated Development Project, from Punta Cabuyal to Punta Cacique, shall be placed under the direct administration of the ICT. Concessions within that area shall be granted by said institute; applications shall be submitted to it and processed in accordance with the procedure established in these regulations, insofar as applicable. Nombre3394 shall grant such concessions only when they conform to the Integrated Development Plan or do not interfere with it. Once a concession has been granted, the Institute shall notify the corresponding municipality so that it may collect the applicable fee. In all other respects, the provisions of the Law and the regulations shall govern this area, without prejudice to any special provisions that may be issued.” (Emphasis added by the petitioner).
The unconstitutionality and incompatibility with international conventions of this provision would rest on the same grounds set forth above because, instead of excluding from the ZMT those locations containing forests, wetlands, or mangroves, where concessions could not be granted, the Executive Branch, without technical justification and in abuse of its regulatory authority, remained silent—or followed the position previously requested by the ICT—thereby retaining what provision 74 established under the continuous and uninterrupted “administration” of the ICT. It should be noted that granting “special” concessions entails the issuance of enabling acts under which, solely by means of an improper exception, Nombre3394 will have the power to determine what is appropriate and necessary in those areas. In the past, this may have created, and in the future could create, the possibility of establishing forest management plans, felling forests, or even arbitrarily eliminating ecosystems such as the undergrowth in order to build houses, condominiums, etc., because all of this would be left in the hands of the concessionaires and the ICT, whose only limitation would be the integrated development plan prepared by Nombre3394 itself and the sinister phrase “or do not interfere with it.” It should be noted that there are not even any regulations or safeguards concerning protected areas (áreas de protección) associated with wetlands or mangroves, although these could have been included in provision 93.
In other words, the PNE may not be fully respected and could be eliminated in whole or in part in the future, because concessions are rights that would be administered independently of the remainder of the legal system, and all of this could cause irreversible environmental harm. Therefore, in the petitioner’s view, this provision is permeated by constitutional and conventional defects and is contrary to constitutional Article 50 and the conventions cited above. Indeed, for illustrative purposes, it must be made clear that Nombre3394 has sought or encouraged the felling of forests at locations granted as concessions within this project, as it stated in its response to the constitutional challenge filed in expediente 25-024408-0007-CO11.
See the ANEXO I submitted, in which the “administering entity” states, even with respect to forests that are PNE: “The concept of ‘density or site-coverage coefficient compensation’ does not entail an increase in overall density and coverage, since it operates solely within the maximum total density and coverage authorized for the combined properties of the same concessionaire; furthermore, the concessionaire must comply with national regulations governing its development, including obtaining a tree-cutting permit from SINAC and the environmental approval issued by SETENA, among others, and the regulation does not supersede the jurisdiction of the other public institutions…” As may be read, because this is a tourism enclave, neither ICT nor any other office, such as SINAC, MINAE, or SETENA, has understood that logging may neither be conducted nor approved on forested State-owned land. It is therefore necessary for this to be declared unconstitutional, because the forests are being logged and eliminated, given that the regulations adopt an economically driven approach under which concessionaires may request and are granted even land-use changes (cambios de uso del suelo).
This is not merely asserted by the undersigned petitioner; rather, the information comes directly from the officials of Nombre3394 who administer the Golfo Papagayo tourism project. To elaborate, and still for evidentiary purposes (ad effectum videndi), ANEXO II is submitted, a document entitled PROTOCOL FOR CONDUCTING A RAPID BIOLOGICAL STUDY, Bahía Papagayo PROJECT, LOCATION Province: 05 Guanacaste Canton: Dirección5935 District: Dirección5936 DEVELOPER INFORMATION, Enjoy Hotel & Resort S.A., in which the project biologist who prepared that documentation states, when completing the responses concerning the conditions existing in the PA (project area): “For your information: Where the PA in which the activities, works, or projects are located lies partially or entirely within an Environmentally Fragile Area (Área Ambientalmente Frágil, AAF), as established in Annex No. 3 of the General Regulations on EIA Procedures, and is relevant from a biological standpoint, particularly areas numbered 1, 2, 3, 4, 5, 6, 8, 10 (in the case of mangroves and other types of wetlands protected by law), and 11, this field must be completed on the basis of a rapid biological study conducted pursuant to the Protocol detailed in this section, identifying the principal biotopes present in the PA and how the activity, work, or project might affect them during its development… 6.
General description of the ecosystems or plant communities present in the PA (Forest, old secondary growth, young secondary growth, scrubland, pasture with scattered trees, treeless pasture, crops, abandoned crops undergoing recovery (advanced, young), etc.) A/- The plant communities present in the PA are as follows: The site contains features such as patches of secondary forest and a forested area dominated almost entirely by Guácimo trees. Along the banks of the stream are a few isolated white mangrove shrubs (Laguncularia racemosa), a species classified as Least Concern by the IUCN; moreover, these are within the stream’s protected area (área de protección) and therefore will not be affected by the works. 7. General description of the ecosystems or plant communities present in the project’s surroundings (Forest, old secondary growth, young secondary growth, scrubland, pasture with scattered trees, treeless pasture, crops, abandoned crops undergoing recovery (advanced, young), etc.) A/- The ecosystems or plant communities present around the project comprise different types of ecosystems, regenerating areas, and areas with scattered trees.
North and northeast of the PA, there are wetlands containing mangrove areas, with the coast farther beyond; to the north, there are also areas of tourism development and more urban land use. To the south lies the Corredor Biológico Diría. Each property is bounded by public roads. 8. Are any flora and/or fauna species in the project’s PA subject to any degree or category of protection? Explain. A/- Only the painted wood turtle (Rhinoclemmys pulcherrima) is classified as Vulnerable according to the IUCN… 10. If the project requires cutting trees (meaning trees that are not part of a plantation, were not planted by the developer or property owner, and have a DBH greater than 15 cm), specify the approximate number. A/- Approximately 1650 specimens will need to be cut within the PA. The corresponding cutting authorization will be sought from the local MINAE office. 11. Is there any ecosystem in the PA that may be classified as fragile?
If so, describe it in detail. A/- Four stream channels are located within the PA. These channels must not be affected by the works, because their protected areas must be maintained. In addition, part of the property lies within Corredor Biológico Diriá. Although the project is not located within any protected wildlife area (área silvestre protegida), some of the areas of direct influence contain wetlands that must remain unaltered; wetlands are protected ecosystems under Ley Orgánica del Ambiente N° 7554. Furthermore, both the project’s direct area of influence and its indirect area of influence are located within the Maritime-Terrestrial Zone (Zona Marítimo Terrestre, ZMT), and the necessary mitigation measures must therefore be adopted…” As this authority may see, Nombre3394 has indeed granted concessions at sites that must be regarded as PNE, located both within and outside the ZMT, and this is repeated across various project concessions.
It should not be permitted, because these are State-owned properties rich in biodiversity, where turtles nest, where it is expressly stated that trees that are PNE will be cut, where forests are regenerating, or where biological corridors exist. Everything described not only contributes to environmental damage to PNE, but also fragments various ecosystems, since even public roads and perimeter fences are built in the forests, obstructing natural passage and endangering wildlife. Returning, however, to the unconstitutional provisions, the petitioner states that the phrase in Article 93 of the challenged regulation, which provides “or do not interfere with it,” referring to the Comprehensive Development Plan (Plan de Desarrollo Integral), establishes an indeterminate concept, which is extremely dangerous in environmental matters because it may open thresholds that generate violations of constitutional Articles 50 and 89 at environmentally fragile sites within the ZMT.
He therefore expressly requests that the claim of unconstitutionality also be granted, that this phrase be eliminated, and, in this case, that it be removed from the legal system pursuant to the precautionary principle (criterio precautorio). The claimant further adds that even the Comprehensive Development Plan itself may create opaque areas contrary to environmental protection. It should also be noted that there is a currently effective declaration of national interest (declaratoria de conveniencia nacional) covering the entire enclave or project, through which Nombre3394 may authorize, influence, or encourage logging within PNE; hence, a declaration of unconstitutionality is necessary.
Sixth section: Moreover, note that the final portion of Article 74 of the LZMT provided that the Executive Branch may regulate that provision, BUT only after consulting that Institute. In other words, what may be observed here is an abusive privilege and, in part, the extraordinary power held by Nombre3394 to have matters “administered” entirely according to its own convenience, discretion, and preferences, which may be contrary to the protection of PNE. In the claimant’s view, it is clear that the Executive Branch’s power/duty to issue regulations implementing the LZMT is diminished, because the lawmakers granted a right to exercise authority even beyond the ZMT so that Nombre3394 would have the power to draft and organize regulations and instruct the Executive Branch as to what it wanted, thereby securing its own regulations FOR THE ENTIRE TOURISM DEVELOPMENT OF THE PROJECT, in violation of the principle of progressivity (principio de progresividad) and transparency.
On the other hand, although the Executive Branch is the body that issues regulations, what would be unconstitutional is making it mandatory to “consult” ICT specifically and in advance, as though the provisions of that Institute were binding, which is clearly the intended meaning. In other words, the procedure is presumably that Nombre3394 drafts the regulation and submits it to the Executive Branch for publication. Moreover, as noted, in practice SINAC, Nombre3394, and SETENA regard the granting of logging permits on land that is PNE as routine. This demonstrates that an office responsible for tourism would possess broad and excessive power that even undermines the separation of powers in Costa Rica, because it assumes a form of “joint” jurisdiction with the Executive Branch to regulate provisions having environmental effects. To better understand the point being made, this provision of the LZMT must be assessed together with the remaining challenged provisions, so that it may be seen that Nombre3394 has the power to govern an area as though it were a fiefdom, an aspect that violates the principles of transparency, reasonableness, and proportionality.
For these reasons, the claimant requests that this final portion of Article 74 of the LZMT be declared unconstitutional, so as to eliminate the DUTY to consult Nombre3394 IN ADVANCE regarding any regulations to be issued, as though Nombre3394 were superior, or at least equal, to the Executive Branch.
Seventh section: conclusion: In light of the matters discussed above and to protect the ecosystems in question, the claimant requests a ruling that Article 74, as well as the expansion provided for in Article 1, in the final portion of the Law Declaring the Golfo Papagayo Tourism Project to Be of Public Utility (Ley que Declara de Utilidad Pública el Proyecto Turístico Golfo Papagayo), and the challenged Regulations to the LZMT, must be declared unconstitutional and also incompatible with international conventions (inconvencionales), insofar as they created a threshold removing from the administration of MINAE and SINAC the wetlands, forests, and mangroves located within the strip defined by the aforementioned Article 74, as expanded by Article 1 of Ley n.° 6370. Alternatively, the claimant requests, at a minimum, an interpretive judgment (voto interpretativo) stating that sites that are PNE within the ZMT, in the geographical areas initially described in Article 74 and expanded in the aforementioned Article 1, are excluded from the administration of Nombre3394.
With respect to regulatory Article 93 of Decreto Ejecutivo 7841-P, the claimant requests a declaration that it is unconstitutional for Nombre3394 to administer the entire strip of the ZMT and that, at a minimum, an interpretive ruling is warranted stating that such administration shall not encompass sites that are PNE. Regarding ICT’s power to grant concessions, it must be established that concessions already issued, those issued in the future, and those for which extensions are granted may not encompass sites that are PNE. The claimant further requests a ruling that establishing the Comprehensive Development Plan as the sole limitation on concessions would be proper and consistent with the Constitution, but that the phrase “or that do not interfere with it” is a wholly indeterminate and abusive numerus apertus concept that could cause environmental harm and must be removed from the legal system as unconstitutional.
The petitioner insists that the final portion of provision 74 of the LZMT, which states that the Executive Branch must consult Nombre3394 regarding the regulations for the entire tourism development project, must indeed be removed from our legal system and declared unconstitutional, because it limits and, to a certain extent, constrains the actions of the Executive Branch, and this is neither logical nor, as stated, proportionate or consistent with the principle of reasonableness. He requests consideration of the fact that, through a statutory provision in the LZMT, limitations are imposed on the regulatory power, as provided in constitutional provision 140, subsection 3. It should also be noted that the wording of provision 74 was clearly open-ended and abusive when it stipulated: “The regulations governing that development shall be formulated by the Executive Branch, after consultation with that Institute.” (Emphasis by the petitioner).
It should be noted that this does not merely mean that the Executive Branch may issue regulations for provision 74; rather, the legislators abusively granted the right/power requiring Nombre3394 to be consulted on practically everything to be regulated within and outside the maritime-terrestrial zone (zona marítimo-terrestre, ZMT), since the phrase indicates that this obligation encompasses not only matters pertaining to the coastal area, but also the “…Integrated Development Project of Bahía Culebra….” The foregoing manifestly constitutes an abuse, because the development as a whole extends beyond the ZMT; consequently, the phrase “that development” is unconstitutional, or it must at least be interpreted as referring solely to the coastal portion and as having no connection with sites that constitute PNE. SECOND: Law No. 6758 of 04/06/1982, Governing the Implementation of the Papagayo Tourism Project, states, insofar as it is challenged as unconstitutional and incompatible with international conventions: “Article 2.—In the area designated for the development of this project, only the works provided for in the Master Plan approved by the Instituto Costarricense de Turismo, and all works consistent therewith, may be carried out, in accordance with the provisions of this law and pursuant to the technical standards issued by that Institute for such purpose.” (Emphasis by the petitioner).
“Article 12.—The Board of Directors of the Instituto Costarricense de Turismo may grant concessions (concesiones) for the use of project lands in the area designated for it, subject to the terms and conditions established by the Institute for such purpose and in accordance with the provisions of Article 1073 of the Financial Administration Law of the Republic.” (Emphasis by the petitioner). The petitioner states that provision 2 generally reflects the continuing position that Nombre3394 shall be the entity responsible for making the appropriate administrative decisions both within and outside the ZMT. It even leaves Nombre3394 as the sole entity authorized to issue technical standards, and, because no restrictions are specified, this extremely broad generalization naturally includes the power to regulate forests, wetlands, mangroves, biological corridors, matters related to a healthy climate, such as carbon sequestration, and the landscape, among others.
The foregoing reveals unconstitutionality and incompatibility with international conventions, because it disregards the technical criteria and safeguards established in provisions such as the Ley Forestal with respect to PNE, the provisions of the Paris Agreement, and the Convention on Biological Diversity in conjunction with Article 7 of the Political Constitution, which clearly demonstrate that expertise is required from offices possessing direct environmental authority as established in the various provisions, as explained in the first point. For this reason, section 2 is tainted by unconstitutionality and incompatibility with international conventions, and he therefore requests that it be so declared, because only technical and specialized offices should issue environmental technical standards. Provision 12 of Law No. 6758 likewise suffers from the same defects, insofar as the legislators provided for the possibility of granting concessions not only in the ZMT, as established in the first point of this application, but also throughout all expropriated areas that are under the exclusive control of the ICT, including PNE and even biological corridors.
He states that, in fact, according to the documentation cited for purposes of inspection (a efectos videndi), Nombre3394 has contributed to undermining the classification of PNE, and this must not be permitted, because through that administrative authority it has, by action or omission, allowed logging and impacts that fragment biological corridors, among other things. The petitioner alleges that, in responding to this action, Nombre3394 will likely state that the notarial instruments used when all the properties were acquired described them as pastureland; however, more than 30 years later—that is, in this 2025—many sites now consist of lands containing forests, wetlands, and even mangroves that have grown through the natural regeneration of the forest, or whose registered classification was incorrectly stated because the surveyors had no understanding whatsoever of tropical dry forests and their structures.
The reality is that, as of this year, many sites have forest cover (cobertura boscosa) or are lands suited to forestry that would constitute PNE because they belong to the State; accordingly, they should not be granted under concession, since MINAE and SINAC are the agencies that must exercise exclusive administration. Because the challenged provisions failed to account for PNE, the principle in dubio pro natura and the principle of ecosystem irreducibility (irreductibilidad de los ecosistemas) require that these remnants of tropical dry forest be protected and that provisions 2 and 12 be declared unconstitutional. He emphasizes that, in the biological report previously cited for purposes of inspection, the professional stated that remnants of mangrove vegetation remained within the protected areas (áreas de protección); as may be imagined, those few specimens are living proof that a mangrove ecosystem once existed at the site, but that this vegetation was unconstitutionally eliminated through human action, because these sites constitute PNE.
He recalls the need for the authorities to apply the principle of ecosystem irreducibility, supplemented by the aforementioned provision 7 of Decreto Ejecutivo n.° 22550-MIRENEM, which establishes that areas stripped of mangrove vegetation shall retain their status as mangroves and that ecosystem restoration (recomposición ecosistémica) must occur. But how could such restoration occur if Nombre3394 has granted concessions to business operators to build hotels, condominiums, or shopping centers? It is because of matters such as this that he insists consideration must be given to the fact that the enclave created by exception has resulted in a substantial loss of biodiversity and PNE in Costa Rica. Nor does he overlook the fact that biological corridors on State-owned lands should be preserved; here, however, these sites through which life flows appear to be viewed as though the structures were not being built on public-domain property (bienes demaniales) entitled to proper respect, and it is possible that the biological corridor Diría is being fragmented because of the lack of foresight and failure to appreciate the nature of PNE.
Once again, solely for purposes of inspection, he requests consideration of official letter SETENA-SG-0646-2025 of May 20, 2025, in ANNEX III, which contains information on several areas granted under concession within the Proyecto Turístico Golfo de Papagayo and acknowledges the forest cover being retained for the benefit of concessionaires who seek to eliminate it pursuant to unconstitutional enabling acts issued by SINAC or MINAE. As this Authority will be able to observe, concessions within the Proyecto Turístico Papagayo contain extensive forest cover—that is, PNE—but because Nombre3394 is the administrator and approves the project concessions, hotels, tennis courts, and other structures would be built, as he has indicated, on forested areas. Everything continues to move forward while ignoring that, on State-owned lands where forests exist or previously existed, it is impermissible to grant concessions or approve land-use changes (cambios de uso del suelo); nevertheless, the administrators proceed, causing, by action or omission, serious harm from the perspective of wildlife, ecosystems, and rights such as the right to a healthy climate and the right to a healthy and ecologically balanced environment.
This makes a declaration of unconstitutionality and incompatibility with international conventions necessary, because the most basic element of the principle of ecosystem irreducibility is being impaired under the banner of creating and consolidating a mega-hotel tourism hub. Remaining within the Planet’s boundaries is a matter of long-term survival; recognizing the legally binding nature of respect for the planetary boundaries that keep the Earth within the “safe operating space” is a matter of short-term justice, and this proceeding is therefore brought in an effort to restore environmental soundness to the challenged provisions. The petitioner recalls that, worldwide, we have entered a stage in which, instead of speaking of global warming, the terminology has changed and it is now said that we have entered an era of global boiling; we must therefore move forward, and civil society asks you, as administrators of environmental/climate justice, to observe what is occurring throughout the world, where we have exceeded six of the nine planetary boundaries.
It should be noted that, in the recent judgment in Pueblo Indígena Nombre91514 y su Miembros v. Colombia, dated July 04, 2024, the Inter-American Court of Human Rights considered the following regarding this issue: “States must take the ‘triple planetary crisis’ into account when fulfilling their obligations to respect and guarantee the right to a healthy environment. The triple planetary crisis describes the interconnectedness and combined effects of three global threats: environmental pollution, biodiversity loss, and the climate crisis arising from the exploitation and use of fossil fuels and methane emissions. In this regard, the United Nations Environment Assembly of the United Nations Environment Programme (UNEP) has stated that this combined crisis poses a critical danger to life on Earth, requiring urgent and coordinated action at the global level to combat its effects. The United Nations Framework Convention on Climate Change (UNFCCC) also underscores the existential nature of this threat, emphasizing that the devastating consequences of these interrelated crises affect the health of the planet and all its forms of life.
Accordingly, the Court notes that the triple planetary crisis is a complex and multifaceted challenge requiring an integrated and urgent response to ensure the sustainability of the planet and the well-being of its inhabitants.” This Chamber is not being asked to assess technical evidence or to determine what is or is not a forest; it is, however, being asked to declare that an expert opinion must be issued to incorporate the environmental variable (variable ambiental) into the challenged enclave, which has been placed under the exclusive administration of the ICT. It must be recognized that the exceptional system created through various bodies of law cannot, in this century, permit circumstances in which PNE undergoes a land-use change so as to become tourism sites containing houses, hotels, condominiums, golf courses, and the like. Forests and biological corridors must be protected, and it would violate constitutional provision 50 to allow sites containing these natural ecosystems to be transformed into developments that fragment fragile ecosystems and interrupt vital cycles.
The mistaken judgments of legislators from the last century or this one cannot prevail over and override the principle of progressivity (principio de progresividad), so as to eliminate forest land use (uso de suelo forestal) and give precedence to tourism or urban land use; accordingly, it is requested that rational and applicable provisions be made regarding the enclave, or tourism hub, which is solely under the authority of ICT, in order to make way for criteria associated with the protection of soil, forests, wetlands, mangroves, wildlife, and the climate, as would be expected under the ecocentric paradigm shift that must prevail in a social and environmental state governed by the rule of law. It should be noted that this is not a request to change what is currently in operation, which may have been developed in places where only pastures existed, but rather to provide that exceptions exist and that the definition of forest established in the Ley Forestal, what is regarded as a wetland under the Ley Orgánica del Ambiente, and, for example, the regulatory provision protecting mangroves must be respected, and that Nombre3394 must be excluded from that power of exception granted generically in the challenged laws and regulations.
It is requested that the existence of concessions (concesiones) in areas that constitute PNE, biological corridors (corredores biológicos), or places where mangroves previously existed be declared unconstitutional and contrary to international conventions, and that it be provided that Nombre3394 may neither grant concessions nor administer sites constituting PNE, nor grant extensions in places possessing that nature of planetary protection. At a minimum, it is respectfully requested that the challenged provisions 2 and 12 be interpreted to establish that Nombre3394 may not grant concessions in sites containing PNE or biological corridors and that, where such circumstances exist, they must be reviewed by the Procuraduría General de la República so that it may determine the appropriate course of action. This also provides grounds for this Chamber to make such provisions as may be appropriate and to calibrate or determine the manner of proceeding at sites containing PNE, mangroves, or biological corridors that have been eliminated or fragmented and granted under concession.
THIRD: Decreto Ejecutivo n.° 33132-MP-T of 09 February two thousand five, published in La Gaceta n.° 97 of 22 May 2006, which is a decree of national interest concerning the development and implementation of the Proyecto Turístico Golfo de Papagayo, provides: “The President of the Republic, the Minister of the Presidency, and the Minister of Tourism, in exercise of the powers established in Article 140, subsections 3) and 18), of the Political Constitution; Articles 25 and 27, subsection 1), of the Ley General de la Administración Pública, Nº 6227 of 2 May 1978; and Article 1 of Ley Nº 6370 of 03 September 1979, the Law Declaring the Proyecto Turístico del Golfo de Papagayo to Be of Public Utility. Whereas: 1º—Tourism has become the country’s principal source of foreign currency and an important source of employment for Costa Ricans. 2º—Pursuant to Article 1 of Ley Nº 6370 of 3 September 1979, the lands necessary for the realization and implementation of the Tourism Project in Bahía Culebra, located in the Provincia de Guanacaste and now known as Proyecto Turístico Golfo de Papagayo, under the administration of Instituto Costarricense de Turismo, were declared to be of public utility. 3º—That Project has become the leading tourism-development hub in all of Central America. 4º—Through opinion C-210-2002, the Procuraduría General de la República emphasized that, by law, land use within that project is for tourism, which prevails over any other type of use. 5º—The guidelines established in the Master Plan for Proyecto Turístico Golfo de Papagayo make it a model of sustainable tourism development by establishing properly planned development under state administration and supervision, incorporating environmental variables, low densities and coverage, appropriate treatment of wastewater, etc. 6º—It is in the interest of the Government of the Republic to support the efforts of Instituto Costarricense de Turismo to promote the development of Proyecto Turístico Golfo de Papagayo as an international model of sustainable tourism development.
Por tanto, THEY DECREE: Article 1º—The development and implementation of Proyecto Turístico Golfo de Papagayo, under the administration of Instituto Costarricense de Turismo and located in the cantons of Liberia and Carrillo in the Provincia de Guanacaste, are hereby declared to be of national interest. Article 2º—For the optimal development of this Project, all government departments, ministries, and public institutions are urged to provide it with all possible assistance and cooperation, within the limits of their material resources and the scope of their respective authority. Article 3º—This Decree shall take effect upon its publication….” The petitioner states that decrees of national interest clearly establish exceptions to the prohibition against logging forests located on private property, pursuant to provision 19, subsection b), of the Ley Forestal, which appears in Title III, Private Forest Property, Chapter I, Forest Management (manejo de bosques).
This decree of national interest contains multiple inconsistencies that conflict with the Political Constitution. To begin with, it is generic, and its recitals do not contain even a single georeference or indicate how the economic, social, and environmental interests were balanced. On that basis alone, a violation of the principle of objectification (principio de objetivación) is established and apparent, since it does not even mention an environmental impact assessment file (expediente de evaluación de impacto ambiental) for the overall project or a strategic environmental assessment (evaluación ambiental estratégica, EAE) that should have supported the declaration. In other words, in issuing the decree of national interest, the three signatory ministers did not even follow scientific criteria in undertaking an environmental enabling act of such magnitude, which leads him to assert that mere administrative discretion was exercised and that the decree is therefore unconstitutional.
He states that this is not a matter of asking this Chamber to examine or analyze technical evidence; rather, there is no evidence whatsoever, and for that reason a violation of the principle of scientifically grounded protection (principio de tutela científica) is alleged. The principle of objectification itself is abundantly clear in constitutional rulings numbers 2005-14293, 2006-17126, and 2009-2009, which have repeatedly quoted the following paragraph: “Regarding the objectification of environmental protection (objetivación de la tutela ambiental): as this Court noted in judgment number 14293-2005, issued at fourteen hours and fifty-two minutes on nineteen October two thousand five, this principle cannot in any way be confused with the preceding principle [referring to the precautionary principle (principio precautorio)], since, as derived from Articles 16 and 160 of the Ley General de la Administración Pública, it entails the need to substantiate decisions in this field through technical studies, both with respect to acts and to provisions of general application—whether statutory or regulatory—from which arises the requirement of ‘adherence to science and technology,’ thereby constraining the Administration’s discretion in this field.
Accordingly, in light of the results derived from those technical studies—such as environmental impact studies (estudios de impacto ambiental)—if objective technical criteria demonstrate the probability of evident harm to the environment, natural resources, or human health, the proposed project, work, or activity must be rejected; and where there is ‘reasonable doubt,’ decisions must be made in favor of the environment under the pro-nature principle (principio pro-natura), which may entail the adoption of both compensatory and precautionary measures in order to protect the environment adequately.” Along the same lines, it has also been held that: “…the principle prohibiting arbitrariness (principio de la interdicción de la arbitrariedad) requires that decisions affecting the environment be properly supported by technical and scientific criteria…” (see decisions No. 634-2021 and No. 21308-2020).
For the foregoing reasons, he requests that the claim of unconstitutionality be upheld because the declaration of national interest lacks technical and scientific criteria. The petitioner further considers it evident from the decree that it would permit clear-cutting (tala rasa) of forests located within State-owned properties, although, curiously, the minister of MINAE did not participate, despite this being a fundamental matter because of the environmental implications within the area of Proyecto Turístico Golfo Papagayo and because declarations of this nature are provided for in the Ley Forestal. In any event, it bears emphasizing that the decree of national interest should not possess sufficient legal, constitutional, much less international-conventional force to modify or authorize forest clearing within a site constituting PNE or containing biological corridors such as Diriá. Under provision 19 of the Ley Forestal, such national-interest authorizations apply only to privately owned forest land, whereas the lands on which Proyecto Turístico Golfo de Papagayo is located are public-domain property (bienes demaniales).
Provision 13 of the Ley Forestal, which is linked to Article 50 of the Constitution, regards the forests located there as PNE; consequently, permitting land-use change (cambio de uso del suelo) is entirely unlawful, although such changes have been taking place, as he believes he has demonstrated through official documents. In other words, as administrator of the properties located within the project, Nombre3394 would have neither the possibility nor the authority to suggest, much less promote, a land-use change, because, as stated, those properties are public-domain lands, and the forests, wetlands, biological corridors, and mangroves existing there in 2025 must be protected; moreover, ecosystem-restoration processes (procesos de restauración ecosistémica) should be under way because those areas are PNE. Stated differently, not only would it be unconstitutional to grant concessions over those sites containing forest ecosystems, but it would also be unconstitutional to rely on the declaration of national interest to justify or suggest the removal of even a single tree from a forest; still less would there be any option to prepare management plans (planes de manejo) or anything of that nature.
A declaration to that effect is therefore requested, because all of this contravenes provisions 13 and 18 of the Ley Forestal, which are connected by subject matter to Article 50 of the Constitution and to the principle of non-reduction of ecosystems (principio de irreductibilidad de los ecosistemas), as developed and substantiated above. This Chamber has stated: “…the State’s obligation to fulfill the constitutional purposes established in Article 50 of the Constitution, since, as the jurisprudence of this Chamber has repeatedly emphasized, the right to a healthy and ecologically balanced environment permeates the entire legal system, both vertically and horizontally, such that it is impossible to conceive of its entities and bodies departing from the fundamental purpose of environmental law, which is the protection and conservation of the environment…” (Voto n.º 21258 – 2010, date of the decision: 22 December 2010 at 2:00 p.m.).
For the foregoing reasons, he requests that the entire decree of national interest be declared unconstitutional, since even if the relevant studies existed, or even if it had been signed by the Presidency and the minister of MINAE, it would not be constitutionally valid, because these are lands whose existing forests are indisputably PNE. Accepting that Nombre3394 may make environmental decisions affecting forest cover (cobertura boscosa) or biodiversity would distort the environmental public interest established in provision 11 of the Ley de la Biodiversidad.
Even land-use change (cambio de uso del suelo) also entails impacts on wildlife (vida silvestre), as regulated by section 9, subsections 1) and 2), of the aforementioned Ley de la Biodiversidad, since our legislators placed a high value on life in all its forms, irrespective of its current or potential economic value. By connection, those provisions would be related to constitutional provisions 48, 50 and 89. Indeed, the principle of ecosystem irreducibility (principio de irreductibilidad de los ecosistemas) establishes a State duty to restore forests damaged by anthropogenic or natural causes; accordingly, it would be utterly contradictory to think that Nombre3394 could authorize—much less encourage—land-use change so that roads, hotels, villas, shopping centers, or condominiums may be built on lands that are PNE, as has already occurred with the concessions granted. In the recent judgment no. 2024003959 of 16 de febrero de 2024, this Chamber stated: “For its part, according to the ‘World Declaration of the International Union for Conservation of Nature (IUCN) on the Environmental Rule of Law,’ the in dubio pro natura principle means that ‘in cases of doubt, all matters before courts, administrative agencies, and other decision-makers shall be resolved in a manner that favors environmental protection and conservation, with preference given to the least harmful alternatives.
Actions shall not be undertaken when their potential adverse effects are disproportionate or excessive in relation to the benefits derived from them’ (see principle V). In this regard, according to the document ‘95 Environmental Legal Principles for Ecologically Sustainable Development’ (approved at the XIX Edition of the Ibero-American Judicial Summit-2018 and by the Full Court in article XIX of session no. 28-2020 of 25 de mayo de 2020), ‘Every person applying environmental rules shall always bear in mind the pro natura principle, under which risks shall be avoided, general collective interests shall take precedence over private interests, preservation of the environment shall be favored, and, in case of doubt, the interpretation affording the broadest protection to the environment shall be preferred.’ The in dubio pro natura principle, therefore, does not depend on the existence of a danger of serious or irreversible harm—as occurs with the precautionary principle (principio precautorio)—but instead entails a ‘general rule of conduct governing the relationship of the State—and society in general—with the environment, applicable to all decision-making spheres in which there is a risk of environmental impact and requiring us to refrain from choosing conduct that may harm the environment when other options exist’ (Olivares and Lucero, 2018).” (Emphasis added by the petitioner).
Indeed, the case law of the Constitutional Chamber also states, in unconstitutionality judgment no. 2013012973 concerning the regulatory plan (plan regulador) for the beaches of Nombre de Jesús and Nombre57555 over PNE: “The State’s natural heritage (patrimonio natural del estado) is public-domain property whose conservation and administration are entrusted by law to the Ministry of Environment and Energy through the National System of Conservation Areas (Ley Forestal, arts. 6 subsection a and 13 para. 2°, and 14; Ley Orgánica del Ambiente, article 32, para. 2°). It comprises two important components: a) Protected Wildlife Areas (Áreas Silvestres Protegidas), regardless of their management category, declared by Law or Executive Decree: forest reserves, protected zones, national parks, biological reserves, national wildlife refuges, wetlands, and natural monuments (Ley Forestal 7575, arts. 1°, para. 2°, 3° subsection i; Ley Orgánica del Ambiente 7554, article 32; Ley de Biodiversidad N° 7788, arts. 22 et seq. and 58; Ley del Servicio de Parques Nacionales N° 6084, article 3° subsections d and f, in conjunction with Ley Orgánica del MINAE N° 7152 and its Regulations; Ley de Conservación de la Vida Silvestre N° 7317, article 82, subsection a). b) All other forests and forest lands or lands suitable for forestry belonging to the State and public institutions (article 13 of the Ley Forestal), which are subject to an immediate legal designation…” Advisory Opinion OC 32/25 of the Inter-American Court of Human Rights establishes: “107…
Biodiversity loss is accelerated by factors such as pollution, ecosystem fragmentation, overexploitation, and the effects of climate change… 273. This Court likewise reiterates that the right to a healthy environment, as an autonomous right, protects environmental components such as forests, rivers, seas, and others as legal interests in themselves, even in the absence of certainty or evidence concerning risk to individual persons. Nature must be protected not only because of the effects that its degradation could have on other human rights, but also because of its vital interdependence with the other organisms that make life on the planet possible…” (Emphasis added by the petitioner). In light of the foregoing, he requests that the arguments presented be weighed and that this abhorrent, abusive authority to order land-use changes within the Golfo de Papagayo tourism project be removed from the domestic legal system in order to prevent the harmful effects of climate change.
Costa Rica cannot afford to lose forest ecosystems simply to favor tourism entrepreneurs wishing to build their hotels and condominiums, and he therefore requests such a declaration. It should be considered that the Paris Agreement (Ley n.° 9405), in provisions 4.2 and 7.2.2, establishes that each State must take measures to mitigate climate change, since adaptation is a global challenge that concerns all persons, States, and companies; this means that forests must be protected and, from that perspective, retaining Nombre3394’s authority to approve land-use changes in forests located on public-domain lands would be incompatible with the Convention. Moreover, should there be any doubt regarding the legal basis for this declaration of national convenience (declaratoria de conveniencia nacional), for purposes of examination it should be noted that, when submitting its report in the unconstitutionality action contained in the aforementioned case file no. 25-024408-0007-CO, Nombre3394 stated as follows: “The declaration of national convenience for the project (Decreto Ejecutivo N.° 33132 de 2005) further strengthens its position within State public policies by deeming it a priority for economic development, job creation, and the attraction of foreign direct investment.
This declaration is based on Ley Forestal N.° 7575, article 3, which defines activities of national convenience as those whose social benefit exceeds their environmental cost, a condition that must be demonstrated through the corresponding technical instruments…” (Emphasis added by the petitioner). Taking the foregoing into account, he considers that land-use change would be treated as something accepted by ICT, because it would be contemplated as a vested right (derecho adquirido) held within the tourism project, since it is stated beyond doubt that the declaration arose under the umbrella of the Ley Forestal. However, as explained above, it should not apply in places that are PNE. The quoted paragraph highlights the project’s purely economic significance and its attraction of investors, thereby excluding the environmental dimension from the sustainable-development equation; for this reason, he reiterates the argument above that the sustainable development invoked by Nombre3394 is merely a slogan used to sell and promote a project that, environmentally, has left Costa Rica with profound dissatisfaction.
Finally, as emphasized in the relevant aforementioned official communication, it is an established fact that SINAC has been granting permits for tree felling (tala de árboles) precisely on the basis of this unconstitutional declaration of national convenience, and he therefore insists that this decree must be removed from the legal system as soon as possible. FOURTH: The petitioner challenges the following provisions of Regulation no. 4572 of 10/07/1995, entitled “Plan Maestro General del Proyecto Turístico Golfo de Papagayo”: “Article 5. Concessionaires within the Tourism Hub must comply with the following specific guidelines for the design and construction of their tourism projects: 5.1 Regarding the design and construction of tourism projects… i) Average limit of twenty rooms per hectare: Without prejudice to the specific considerations that the Implementing Office must make for a particular development project according to its scale and topographical location, only an average of twenty rooms may be built per hectare of concession land, regardless of whether the development involves lodging or residential dwelling units.
The Implementing Office must monitor compliance with this principle, even where the project design entails concentrating the rooms in a small number of buildings. j) Site-coverage ratio (coeficiente de ocupación de superficie): A site-coverage ratio not exceeding a maximum of 30% (treinta por ciento) of the total area originally granted under concession must be maintained, and the designs of the proposed tourism projects must conform to that ratio.” (Emphasis added by the petitioner). The petitioner states that the cited provisions, 5.1 subsections i) and j), establish numerical parameters that have no scientific or technical justification and that those established percentages violate the principle of objectification (principio de objetivación), or scientific protection (tutela científica), recognized in the previously cited judgments of this same Chamber, no. 2005-14293, 2006-17126 and 2009-2009, as well as the principle prohibiting arbitrariness (principio de interdicción de la arbitrariedad), also cited above and recognized in this Chamber’s decisions no. 634-2021 and No. 21308-2020.
The petitioner states that there was, and still is, no scientific or technical basis providing any justification whatsoever for concluding that a maximum limit of 20 rooms per hectare (without specifying square-meter construction areas) is supported by a study determining that this is an appropriate amount to build in locations containing PNE. No environmental safeguards were established regarding the aggregate impact of 20 rooms per hectare, much less was the cumulative effect of all of this throughout the entire project at the Papagayo tourism hub considered, and that omission constitutes a constitutional defect. Advisory Opinion 23/17 of the Inter-American Court of Human Rights stated: “165. The Court has indicated that the environmental impact study (estudio de impacto ambiental) must encompass the cumulative impact generated by existing projects and the impact that proposed projects would generate…
The impact caused by other existing projects must likewise be taken into account. This analysis makes it possible to determine more reliably whether the individual and cumulative effects of existing and future activities entail a risk of significant harm.” (Emphasis added by the petitioner). Based on the foregoing statement by the Inter-American Court of Human Rights, the concept of cumulative effects must be understood as one of the minimum Inter-American standards applicable to any assessment, and this was never evaluated because, as he has stated, no studies existed to quantify and measure the impact of 20 rooms per hectare in each and every concession; therefore, that parameter, imposed at Nombre3394’s discretion, is constitutionally defective.
In the applicant’s view, that factor of 20 rooms, without any specification of the number of square meters of construction, currently violates the in dubio pro natura principle and the principle of non-regression of ecosystems (principio de irreductibilidad de los ecosistemas), because the project is located within forested sites that, as he has noted, are PNE, where the cumulative effect has not been assessed as a whole. If this is a mega-tourism project, as can be seen from the enactment of Article 74 of the LZMT, through the decree of national convenience, and up to the provisions of the Regulations for the General Master Plan of the Golfo de Papagayo Tourism Project, it is more than evident that all of this should have been environmentally assessed as a whole beforehand, pursuant to the preventive and precautionary principles. Since this has not occurred, he sees a violation of the principle of scientific protection and requests a declaration of unconstitutionality.
To date, the only thing that is clear is that the Executive Branch established a parameter, at the discretion of Nombre3394, for the ENTIRE geographical area of the Golfo de Papagayo tourism development project, and this must be declared contrary to constitutional provisions 50 and 89 and the aforementioned principles. Likewise, under that 20-room criterion, the parameter may be deemed indeterminate and violates Article 8 of the Convention on Biological Diversity, which establishes the duty of the States Parties to manage resources “important for the conservation of biological diversity, whether within or outside protected areas, to ensure their conservation,” as well as the duty to promote “the protection of ecosystems and natural habitats and the maintenance of viable populations of species in natural surroundings.” He again recalls that Article 7 of Decreto Ejecutivo n.° 22550-MIRENEM provides that areas that have been stripped of mangroves shall retain that status; therefore, the ICT should instead be managing the restoration of damaged or eliminated ecosystems, if it were a good administrator of sites containing PNE.
However, as is clear, it merely promotes construction in forested areas. For the same reasons of unconstitutionality and incompatibility with treaty law, he further argues that provision 5.1 subsection j) also contains a criterion permeated by discretion that is extremely dangerous. The applicant considers that the provision, without technical grounds, that “a site-coverage ratio not exceeding 30% (thirty percent) of the total area originally granted under concession” was environmentally harmless lacks any basis whatsoever. The cumulative effect of all of this throughout the entire project, when all concessions are added together, exposes us to the risk of irreversible environmental damage to forest ecosystems and biodiversity in a geographical area that is inherently PNE. The applicant asserts that this Chamber will find no support anywhere validating that maximum 30 percent site-coverage ratio and ensuring that it has no negative impact; consequently, this factor should be removed from our legal system, and it should at least be provided that the areas must be calculated on a case-by-case basis, based on technical studies and a strategic environmental assessment (evaluación ambiental estratégica, EAE), particularly when natural heritage of the State (patrimonio natural del Estado) exists in the surrounding area.
Indeed, according to constitutional case law and the development of the principle of non-regression of ecosystems and the prohibition on land-use change (cambio de uso del suelo) on State-owned forest lands, everything points toward the need to be categorical and unequivocal. Given that there is even a decree of national convenience permitting logging, we can see how dangerous it is to retain those criteria of 20 rooms per hectare and a 30 percent site-coverage ratio, since all those numerical parameters are genuinely far removed from establishing environmental safeguards at sites containing PNE. To date, the damage to life cycles in ecosystems affected by provisions such as those challenged herein remains unknown. In other words, it cannot even be argued that it is better to have those parameters of 20 rooms per hectare and a 30 percent site-coverage ratio, because these are factors that would operate in places where anthropogenic interventions (intervenciones antrópicas) involving the removal of undergrowth or forests, or the construction of roads that fragment habitats, are impermissible, and he therefore requests that the Chamber so rule.
He now asks again: where did that 30% permitting the concentration of buildings come from? Why could it not have been 15 % or 50 %? The point, however, is that because no scientific grounds exist, the regulation and establishment of a 30% ratio, or of 20 rooms without specifications concerning size or construction area, would be tainted by unconstitutionality for violating the principle of objectification (principio de objetivación). At present, 20 rooms of 500 square meters each could be built—that is, single-story rooms that would internally contain their respective divisions, such as a kitchen, game and television room, garage, single or double sleeping quarters, swimming pool, etc.—which together could cover indeterminate areas of sites that are PNE; as can be seen, this may have great significance because of that indeterminacy. Indeed, it should be noted that 20 rooms of 500 square meters, which might sound like something minor, would in fact cover one hectare, where the environmental and visual impact on soil resources, landscape, forest, climate, and water at a site where PNE exists would be substantial.
Therefore, this other parameter would be unconstitutional, and he requests that it be so declared. FIFTH: The applicant states that, from the LZMT through the provisions of the Regulations for the General Master Plan of the Golfo de Papagayo Tourism Project, the Executive Branch, under the criteria of Nombre3394, has structured a legal framework under which a tourism project is administered by the Institute, giving priority to economic criteria while disregarding the environmental variable, in violation of provisions such as constitutional Articles 50 and 89. It is astonishing that, within this “structure” or development model, situations violating the principle of the right to a healthy and ecologically balanced environment have been allowed to filter through, causing environmental concerns to go unnoticed and lose effectiveness over the years, while the parameters protecting forests or biodiversity were eroded both within and outside the ZMT.
For this reason, it is necessary to challenge the provisions he has identified as a whole. In view of the foregoing, he requests a declaration of unconstitutionality and incompatibility with treaty law, because he considers that we are clearly faced with an exceptional, atypical regime that has produced an orchestration of wills in which the ICT’s highest-ranking officials wield the baton so that, as in a symphony, the Executive Branch, SINAC, MINAE, and SETENA have over the years failed to act as they should in a Social and Environmental State Governed by the Rule of Law. RELIEF SOUGHT: For the reasons stated, the applicant requests that the action be granted and that Article 74 of the Ley de la Zona Marítimo Terrestre; Article 93 of the Reglamento de la Ley de la Zona Marítimo Terrestre, Decreto Ejecutivo 7841-P; Article 1, final paragraph, of Ley n.° 6370, entitled Ley que Declara de Utilidad Pública el Proyecto Turístico Golfo Papagayo; Articles 2 and 12 of Ley n.° 6758 que Regula la Ejecución del Proyecto Turístico de Papagayo; Articles 1 and 2 of Decreto Ejecutivo n.° 33132-MP-T, which is the decree of national convenience for the development and implementation of the Golfo de Papagayo Tourism Project; and Article 5.1, subsections i) and j), of Reglamento n.° 4572 of the Instituto Costarricense de Turismo, entitled “Plan Maestro General del Proyecto Turístico Golfo de Papagayo,” be declared constitutionally defective and incompatible with treaty law.
He requests a finding that there is a common thread linking the challenged provisions that allows their unconstitutionality to be analyzed both separately and as a whole. With respect to what he has stated above regarding each challenged provision, he asks the Chamber to calibrate the effects of how they must be interpreted and, on the other hand, requests the removal from the legal system of the matters identified, because, in his view, they violate several principles of environmental law and constitutional provisions 7, 48, 50 and 89, in addition to several ratified international instruments and several advisory opinions of the Inter-American Court of Human Rights. This action is admitted because it meets the requirements set forth in Articles 73 to 79 of the Ley de la Jurisdicción Constitucional. The applicant’s standing derives from Article 75, second paragraph, of the Ley de la Jurisdicción Constitucional, because he appears in defense of the diffuse interest (interés difuso) in a healthy and ecologically balanced environment.
A notice concerning the filing of the action shall be published in the Boletín Judicial on three consecutive occasions. Legal effects of filing the action: The purpose of the publication provided for in Article 81 of the Ley de la Jurisdicción Constitucional is to notify the courts and the bodies that exhaust administrative remedies (agotan la vía administrativa) that the constitutional challenge has been filed, so that no final decision shall be issued, pending the Chamber’s ruling in the matter, in any proceedings or procedures in which the application of the law, decree, provision, agreement, or decision is at issue. Several rules follow from this legal provision. The first, and perhaps the most important, is that the filing of a constitutional challenge does not suspend the general effectiveness and applicability of the provisions. The second is that only acts applying the challenged provisions are suspended when undertaken by judicial authorities in proceedings brought before them, or by administrative authorities in procedures intended to exhaust administrative remedies, but the general validity and application of those provisions are not suspended.
The third rule is that the Chamber may calibrate the scope of the action’s suspensive effect. The fourth is that, in principle, in cases involving a direct action, as in this case, filing does not have a suspensive effect (see voto n.° 537-91 of the Tribunal Constitucional). The fifth rule is that, when an unconstitutional omission is alleged, no suspension may be ordered; in other words, neither the prevention of the omitted conduct nor the performance of that conduct may be ordered, because, in the latter case, doing so would entail deciding the constitutional challenge on an interlocutory basis. That is, the suspension of the application of the challenged provisions at the administrative level operates only in cases where a procedure to exhaust administrative remedies is underway, which presupposes that an affected party has filed an appeal to a higher authority or a motion for reconsideration against the final act.
Where there is no dispute regarding the application of the provision, its effectiveness and applicability may not be suspended. In other words, in all matters in which no procedure to exhaust administrative remedies exists under the terms stated above, the provision must continue to be applied, regardless of whether it benefits the party seeking judicial relief—a favorable administrative act—or harms that party—an unfavorable act that was not challenged.
Within fifteen days following the first publication of the aforementioned notice, persons appearing as parties in matters pending as of the date this action was filed, in which the application of the challenged provision is at issue, or persons having a legitimate interest (interés legítimo), may enter an appearance in order to support the admissibility or inadmissibility thereof or, where appropriate, to expand upon the grounds of unconstitutionality relating to the matter in which they have an interest. It is further advised that, pursuant to Articles 81 and 82 of the Constitutional Jurisdiction Law (Ley de Jurisdicción Constitucional), and as the Chamber has repeatedly ruled (decisions 0536-91, 0537-91, 0554-91 and 0881-91), this publication does not suspend the general validity of the provision, but only its application in the cases and under the conditions specified. The response to the hearing granted in this decision must be submitted only once, using only one of the following means: physical documentation filed directly with the Secretariat of the Chamber; the fax system; electronic documentation through the ONLINE MANAGEMENT System (Sistema de GESTIÓN EN LÍNEA); or to the email address ..., which is used exclusively for receiving reports.
In all cases, the response and all other documents must expressly state the expediente number to which they pertain. Responses submitted electronically must bear the signature of the responsible person signing them, either by digitizing the physical document bearing that person’s signature or by means of a digital signature (firma digital), in accordance with the provisions established in the Law on Certificates, Digital Signatures and Electronic Documents (Ley de Certificados, Firmas Digitales y Documentos Electrónicos), Nº 8454, for purposes of establishing the authenticity of the filing. It is hereby advised that electronically generated or digitized documents submitted through the Online Management System or to the specified email address must not exceed 3 Megabytes. Let notice be given.
*250339260007CO* ACCIÓN DE INCONSTITUCIONALIDAD [Nombre 001] SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las quince horas cuarenta y seis minutos del trece de noviembre de dos mil veinticinco.
Se da curso a la acción de inconstitucionalidad interpuesta por [Nombre 001], mayor, abogado, casado una vez, vecino de Dirección5934, cédula de identidad [CED72], para que se declaren inconstitucionales las siguientes normas:
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