← Environmental Law Center← Centro de Derecho Ambiental
Res. 17611-2020 Sala Constitucional · Sala Constitucional · 16/09/2020
OutcomeResultado
Section 9 of article 26 of the Organic Law of the Judiciary is annulled as unconstitutional, regarding the automatic dismissal of judicial employees due to bankruptcy or insolvency.Se anula por inconstitucional el inciso 9 del artículo 26 de la Ley Orgánica del Poder Judicial, referente al cese automático del nombramiento de servidores judiciales por quiebra o insolvencia.
SummaryResumen
The Constitutional Chamber upheld an unconstitutionality action against section 9 of article 26 of the Organic Law of the Judiciary, which automatically terminated the appointment of any judicial employee declared bankrupt or insolvent. The complainant, an administrative coordinator with over 23 years of service, alleged that the rule violated her rights to work, family protection, legal certainty, privacy, human dignity, innocence, and the principles of reasonableness and proportionality, since her insolvency was voluntary and without fraud, aimed at paying debts. The Chamber accepted the opinion of the Attorney General's Office, pointing out that the rigidity of the provision prevented assessing individual circumstances and establishing a proportionate measure, rendering it unreasonable and unconstitutional. Section 9 of article 26 was unanimously annulled, while article 12 was excluded from analysis due to lack of standing.La Sala Constitucional declaró con lugar una acción de inconstitucionalidad contra el inciso 9 del artículo 26 de la Ley Orgánica del Poder Judicial, que establecía el cese automático del nombramiento de cualquier servidor judicial al ser declarado en quiebra o insolvencia. La accionante, coordinadora administrativa con más de 23 años de servicio, alegó que la norma violaba sus derechos al trabajo, protección familiar, seguridad jurídica, intimidad, dignidad humana, inocencia, y los principios de razonabilidad y proporcionalidad, pues su insolvencia fue voluntaria y sin fraude, para pagar deudas. La Sala acogió el criterio de la Procuraduría General de la República, señalando que la rigidez del precepto impedía valorar circunstancias individuales y establecer una medida proporcional al caso, resultando irrazonable e inconstitucional. Se anuló por unanimidad el inciso 9 del artículo 26, mientras que el artículo 12 fue excluido del análisis por falta de legitimación.
Key excerptExtracto clave
In view of the foregoing considerations, this advisory body considers that the complainant's standing is partial, only insofar as she challenges the provisions of section 9 of article 26 of the Organic Law of the Judiciary, as it is the rule applied in the underlying matter. On the merits, this representation considers that the provision in said section is unconstitutional due to the rigidity of its wording, as it does not allow any margin of application for the legal operator and its necessity in relation to the generality of the Judiciary's employees has not been demonstrated (principle of reasonableness and proportionality). Therefore, the annulment of section 9 of article 26 is recommended, without prejudice to the Chamber deeming necessary an interpretation in conformity with the Constitutional Law of said rule in the terms indicated. [...] The action is granted. Section 9 of article 26 of the Organic Law of the Judiciary is annulled as unconstitutional.En vista de las anteriores consideraciones, este órgano asesor estima que la legitimación de la accionante es parcial, únicamente en cuanto impugna lo dispuesto en el numeral 26 inciso 9) de la Ley Orgánica del Poder Judicial, al ser la norma aplicada en el asunto base. En cuanto al fondo, esta representación considera que lo dispuesto en dicho numeral, resulta inconstitucional por la rigidez de su redacción, al no permitir margen de aplicación al operador jurídico y no demostrarse su necesidad con relación a la generalidad de los funcionarios del Poder Judicial (principio de razonabilidad y proporcionalidad). Por lo anterior, se recomienda la anulación de lo dispuesto en el numeral 26 inciso 9) indicado, sin perjuicio de que la Sala estime necesaria la interpretación conforme al Derecho de la Constitución de dicha norma en los términos indicados. [...] Se declara con lugar la acción. Se anula por inconstitucional el inciso 9) del artículo 26 de la Ley Orgánica del Poder Judicial.
Pull quotesCitas destacadas
"la aplicación de los principios de razonabilidad y proporcionalidad hace cuestionar la constitucionalidad de las normas impugnadas. [...] la disposición normativa no permite graduación alguna ni la atención de circunstancias particulares frente a los casos concretos, pues la única consecuencia posible ante la declaratoria de quiebra o insolvencia, es el cese del nombramiento o la imposibilidad de ingreso al Poder Judicial, sin importar de cuál funcionario se trate."
"the application of the principles of reasonableness and proportionality calls into question the constitutionality of the challenged rules. [...] the normative provision does not allow any gradation or consideration of particular circumstances in concrete cases, since the only possible consequence upon a declaration of bankruptcy or insolvency is the dismissal or impossibility of entering the Judiciary, regardless of which employee is involved."
Considerando IV.b, argumentos de la Procuraduría
"la aplicación de los principios de razonabilidad y proporcionalidad hace cuestionar la constitucionalidad de las normas impugnadas. [...] la disposición normativa no permite graduación alguna ni la atención de circunstancias particulares frente a los casos concretos, pues la única consecuencia posible ante la declaratoria de quiebra o insolvencia, es el cese del nombramiento o la imposibilidad de ingreso al Poder Judicial, sin importar de cuál funcionario se trate."
Considerando IV.b, argumentos de la Procuraduría
"la rigidez de su redacción, al no permitir margen de aplicación al operador jurídico y no demostrarse su necesidad con relación a la generalidad de los funcionarios del Poder Judicial (principio de razonabilidad y proporcionalidad)."
"the rigidity of its wording, as it does not permit any margin of application for the legal operator and its necessity in relation to the generality of the Judiciary's employees has not been demonstrated (principle of reasonableness and proportionality)."
Considerando IV.b, criterio de la Procuraduría
"la rigidez de su redacción, al no permitir margen de aplicación al operador jurídico y no demostrarse su necesidad con relación a la generalidad de los funcionarios del Poder Judicial (principio de razonabilidad y proporcionalidad)."
Considerando IV.b, criterio de la Procuraduría
Full documentDocumento completo
*180165910007CO* SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at nine twenty a.m. on dieciseis de setiembre de dos mil veinte.
Constitutional challenge (acción de inconstitucionalidad) filed by [Nombre 001] against Articles 12 and 26, subsection 9), of the Ley Orgánica del Poder Judicial No. 7333 of 5 de mayo de 1993.
Whereas:
Judicial. She states that she is submitting a certified copy of the appeal in which the claim of unconstitutionality was raised. She explains that the body conducting the proceeding based the notice of charges (intimación de cargos) on the assertion that she had become ineligible to serve as an employee of the Poder Judicial because she had “ been judicially declared insolvent,” pursuant to subsection 9 of Article 26 of the Ley Orgánica del Poder Judicial. She states that the notice in the administrative proceeding was based on the complaint filed by [Nombre 002] and [Nombre 003], respectively Coordinadora de Unidad and Jefa de Administración Salarial del Departamento de Gestión Humana, who, through official letter n.o [Valor 016], informed the Tribunal de la Inspección Judicial of the judicial proceeding handled under n.[Valor 002] by the Juzgado Civil de Cartago, in which she, as petitioner, requested a declaration opening civil insolvency proceedings (concurso civil de insolvencia).
She argues that in that proceeding, first-instance judgment n.° [Valor 042] de las 14:38 horas de 8 de agosto de 2017 was issued, by which she was declared insolvent due to debts incurred with various banking and lending institutions in the amount of ¢81.321.557,04 colones. She asserts that she was the petitioner in the judicial proceeding and that no creditors’ proceeding (concurso de acreedores) was brought against her. She maintains that, availing herself of the legal avenue afforded by the civil legal system, she initiated the proceeding to seek a solution to her economic and financial situation, thereby establishing court-regulated repayment and satisfying all her debts. She states that the Tribunal de la Inspección Judicial, through decision (voto) n.o [Valor 018] de 4 de octubre de 2018, ordered the revocation of her appointment, considering her insolvency to constitute extremely serious misconduct under subsection 9 of Article 26, in the following terms: “[...] it is imperative that all its officials and employees be persons of integrity and possess high levels of commitment, responsibility, honesty, loyalty, decorum, and good faith, understood as conduct carried out transparently on the basis of the trust placed in them [...that] it is on the basis of that value of integrity that this authorized power arises and must be directed toward assessing the conduct and actions of the entire judicial workforce, including in their private lives [...that] the employment relationship must be one of trust in which the employee is a person who can be trusted and to whom the care of property may be entrusted, particularly property belonging to a public entity, and therefore there must be assurance that the person hired is honorable and responsible for his or her actions [...that] a public official may be administratively sanctioned not only for violations of express rules, but also for engaging in immoral acts that affect the public service or are committed in connection with it, or that, although occurring in the person’s private life, are incompatible with the public function entrusted to that person, [...arguing that] it is through subjection to the Ley Orgánica del Poder Judicial and related rules that all its employees are monitored through oversight of their actions and conduct both in the performance of their duties and in their private lives.
(See Art. 28 subsection 2. of the cited Law and provision 49, subsection c), of the Estatuto de Servicio Judicial).” She states that the specific regulatory scope challenged as unconstitutional is the ground based on a judicial declaration of insolvency contained in Articles 12 and 26, subsection 9, of the aforementioned law. She argues that the foregoing, by act and omission, violates constitutional rules and principles. She notes that those provisions state: “Article 12.- Without prejudice to the other requirements imposed by law, admission to the judicial service requires that a person be mentally and physically fit to perform the function, according to its nature. However, persons against whom a final order committing the case to trial (auto firme de apertura a juicio) has been issued may not be appointed, nor may persons convicted of an offense and sentenced to imprisonment, persons subject to disqualification from holding public positions or offices; persons judicially declared bankrupt or insolvent, persons who habitually consume alcoholic beverages to excess, use unauthorized drugs, or have serious behavioral disorders, such that they could affect the continuity and efficiency of the service.” (-the underlining and boldface do not appear in the original and are used solely to highlight the central and relevant content challenged through this constitutional challenge) “Article 26.- Subject to the conditions and procedures established by this Law, the duties of persons holding judicial positions shall cease upon: [...] 9.- Having been convicted, by final judgment, of an offense punishable by disqualification from holding public positions or offices, and having been judicially declared bankrupt or insolvent.” (-the underlining and boldface do not appear in the original and are used solely to highlight the central and relevant content challenged through this constitutional challenge).” She asserts that it is contrary to Constitutional Law (Derecho de la Constitución) for those articles to establish a judicial declaration of insolvency as a ground for termination of her appointment without allowing any margin for discretion or assessment, even of an excusable circumstance, that gave rise to that status and, above all, without considering factors or the “principles of consistency, proportionality, causal reasonableness, legitimate purpose, good faith, family necessity, privacy, assessment of a duly established loss of objective trust in relation to the duties I perform, the existence of actual harm to the image or institutional integrity of the Poder Judicial, as well as the absence of serious, much less extremely serious, misconduct affecting the judicial public service, gender-related considerations, among others, all weighed against whether or not there is an impact on the continuity and efficiency of the judicial service, as is in fact assessed and defined for other grounds in those same articles, as may be read literally in the transcription of those articles provided above.” She emphasizes that the Tribunal de la Inspección Judicial, in decision n.o [Valor 018] , characterized her, because of the declaration of insolvency she sought, as an official lacking integrity, commitment, responsibility, honesty, loyalty, decorum, and good faith, and that this therefore created a relationship of mistrust, considering that the Poder Judicial “needs assurance that the person hired is honorable and responsible for her actions ”; it further deemed that conduct incompatible with public service.
She adds that in the proceeding conducted under expediente n.o [Valor 001], because the ground was deemed to operate by operation of law (de pleno derecho), those matters were not assessed, and even the evidence she sought to introduce was rejected. She asserts that the assessment made by the Tribunal de la Inspección Judicial does not establish the actual existence of any serious harm to the judicial service, the institutional image, or the public interest, but instead punishes only a possible unfounded risk or mere expediency. She states that accepting the foregoing would mean termination from her permanent position as Profesional 2 en Administración Pública, assigned to the Sección de Proyección Institucional de la Dirección de Planificación del Poder Judicial, in which she has served impeccably for more than 23 years. She sets out the following background for the analysis of the constitutional challenge: “ In light of the foregoing, it is relevant to inform this Honorable Sala Constitucional of the outcome of the research conducted concerning the ground for termination of employment or service based on a judicial declaration of insolvency.
For that purpose, Proyecto de Ley N° 10.753 was analyzed—that is, the bill that became the current Ley Orgánica del Poder Judicial Ley N" 7333—which allows us to demonstrate the analysis, discussion, and reports of legislative committees and joint subcommittees composed of legislators and justices of the Corte Suprema de Justicia at that time, thereby reflecting, as a highly significant historical fact, the legislative intent underlying the challenged provisions. Likewise, it will be explained whether the ground challenged herein does or does not exist in the rules governing public-service and employment relationships, both in the public sector, (-specifically, in the Poder Ejecutivo, Poder Legislativo, Tribunal Supremo de Elecciones y Registro Civil, Sistema Bancario Nacional, Contraloría General de la República, Procuraduría General de la República-1), and in the private sector. i.) Proyecto de Ley No 10.753.- Through this bill, the legislators of that historical legislative period considered and discussed what would become the law now known as Ley No 7333, Ley Orgánica del Poder Judicial.
It should be noted, as a relevant matter, that this bill, because of the scale and specificity of its content, as well as its national and institutional significance for the Poder Judicial, led to its original text, as well as matters concerning the approval and/or rejection of motions—intended to produce substitute texts—being analyzed and discussed by a joint legislative subcommittee appointed for that purpose and composed of various legislators with the support of justices of the Poder Judicial, including Dr. Daniel González, Dr. Luis Paulino Mora, and others. The analysis and research into the content of that bill yielded the following matters of importance to this constitutional challenge: ü At folios [Valor 019] (images [Valor 020] ), the original wording of Article 12 appears, referring to “insolvent persons” as a general bar to appointment.
ü At folios [Valor 021] (images [Valor 022]), the original wording of Article 26, subsection 9.1, appears, which merely referred to the commission of any of the grounds (causales) set forth in Article 12 as grounds for termination of appointment (cese de nombramiento). ü At folios [Valor 023] (images [Valor 024], a discussion is identified between the deputy, in his capacity as chair of that joint legislative subcommittee, and Magistrate Daniel González concerning insolvency (insolvencia) and bankruptcy (quiebra) as grounds, in which it may be noted that the deputy refers to those grounds as involving “a matter of public trust,” stating that the person in question has been unable to manage his affairs and subsequently seeks to enter judicial service; thus, in his argument, he characterizes that situation as an issue of “unsuitability,” particularly if there has been—he states—“fraudulent bankruptcy, that is, a criminal offense has been committed.” Magistrate González refers to the existence of a judicial declaration of insolvency (declaratoria judicial de insolvencia), which does not necessarily describe a person whose business affairs have gone poorly, but rather one whose assets are being judicially administered. ü At folio [Valor 025] (image [Valor 026]), the legislative discussion concerning the various grounds under the cited articles appears, emphasizing that the participants were concerned with the service and the administration of justice.
That discussion, of course, involves the central issue in this constitutional challenge (acción de inconstitucionalidad), namely, the declaration of insolvency, and states that the basic rationale underlying the grounds must be understood so that it is absolutely clear that they apply insofar as those circumstances “affect the public service.” ü At folios [Valor 027], [Valor 028], [Valor 029] (images [Valor 030], [Valor 031], [Valor 032]), Motion No. [Valor 035], submitted by Deputy Ovidio Pacheco, is documented. It sought to amend the wording of the aforementioned Article 26, subsection 9.) and, insofar as relevant here, provided, among other things, for the express inclusion of “persons judicially declared bankrupt or insolvent” as grounds for termination of appointment. That wording was ultimately approved and remains in force to date. ü At folios [Valor 033] (image [Valor 034]), the joint legislative committee considered the aforementioned Motion N° [Valor 035] and discussed its content.
For those purposes, the legislative record shows that Deputy Ovidio Pacheco made no reference whatsoever to any substantive rationale, purpose, or cause justifying the express inclusion of the grounds challenged in this action; rather, his justification concerned merely a matter of form, so that Article 12 would not have to be referenced. That formal consideration was viewed favorably because “the motion seeks to clarify, at least, the actual grounds on which a judicial officer may be dismissed.” It bears repeating that, for purposes of that motion, the record contains no suitable substantive rationale, purpose, or cause justifying the express inclusion of the grounds for termination challenged in this action. ü At folios [Valor 036] (image [Valor 037]), the legislative discussion concerning disciplinary grounds (causales disciplinarias) appears, expressly referring to those grounds on which the service relationship (relación de servicio) may be terminated for that reason and emphasizing the public-service interest inherent in judicial functions.
Accordingly, the officer’s continued employment prevails unless it is “seriously detrimental to the judicial service,” or unless, for that reason, “there are doubts concerning the officer’s integrity.” ü At folio [Valor 080] (image [Valor 081]), the grounds challenged in this constitutional action, as set forth in Article 26, subsection 9.), had already been added as substitute text. ü At folio [Valor 082] (image [Valor 065]), particular attention must be drawn to the opinion issued by the Comisión Legislativa de Gobierno y Administración, in which it expressly requested the removal of the insolvency and bankruptcy grounds contained in the aforementioned Article 26, subsection 9.). The justification and explanation provided by the legislators was as follows: “With respect to bankrupt and insolvent persons, they are subject to circumstances which, if they do not affect the employment relationship with the institution, should by no means be treated as grounds for dismissing a judicial employee; allowing this would amount to punishment based on mere risk.” (The underlining and boldface do not appear in the original and are included solely to highlight the importance of this content to the present constitutional challenge.) ü At folio [Valor 038] (image [Valor 039]), the legislative discussion concerning the scope of the disciplinary regime (régimen disciplinario) appears.
It highlights Deputy Allan Solano’s position, in which, with reference to insolvency and bankruptcy as grounds for termination of appointment, he criticizes making “punishment based merely on expediency or risk” and matters concerning “private life” into grounds for termination. ü At folios [Valor 040] (image [Valor 041]), there appears a discussion between Deputy Santana Esquivel and Magistrate Luis Paulino Mora, as members of the Subcomisión Mixta Legislativa, in which they analyze the relevance of the opinion issued by the Comisión Legislativa de Gobierno y Administración concerning the repeatedly cited grounds under Article 26, subsection 9.), in order to decide definitively whether to retain or amend those grounds. For those purposes, it is highly relevant to quote their statements on the matter verbatim, as follows: “MAGISTRATE LUIS PAULINO MORA: [...] Judicial employees must be protected by a certain degree of public confidence because, ultimately, we are responsible for resolving every kind of dispute that exists between the citizenry and the State and within State institutions.
For that reason, it has been considered that there is a certain loss of confidence in a person who has been declared insolvent, given that he has been unable to manage his financial assets and may eventually be responsible for managing the citizenry’s financial assets; this is why provisions of this kind have traditionally been found. That is the only observation I could make regarding whether it should be removed or retained. My recommendation is to retain the provision that persons in a state of bankruptcy or insolvency may not serve as judicial officers. DEPUTY SANTANA ESQUIVEL: Let us continue, then. We will retain this article as it stands [...].” (The underlining does not appear in the original and is included solely to highlight the importance of this content to the present constitutional challenge.) As may be seen with complete clarity, it was Magistrate Luis Paulino Mora’s justification that prompted the legislative decision to retain the grounds for termination stated in the aforementioned Article 26, subsection 9.), and consequently those defined in Article 12 of the same law.
That argument centers on the following points: a.) By referring to the “resolution of disputes,” it justifies only the jurisdictional work (labor jurisdiccional) of the Poder Judicial and omits—and thus the legislature also failed to assess—the administrative judicial-service relationship, such as the judicial work I perform as Coordinadora de Unidad; b.) It states that there is “a certain loss of confidence” because a judicial officer has been declared insolvent; in other words, it would punish that officer by terminating the judicial-service appointment based on conduct whose assessment does not effectively, objectively, causally, directly, intrinsically, proportionately, or reasonably establish the existence of a reason that seriously harms the institution’s service functions or the citizenry, as measured against the duties I perform, irrespective of my insolvency. I reiterate that the assessment must encompass not only jurisdictional work but also, as relevant to me personally, the performance of administrative duties.
It further states that the officer “may eventually be responsible for financial resources,” once again revealing an empty argument lacking any technical, actual, truthful, suitable, or causal basis for finding serious harm to the institution’s service functions, since not all judicial employees fall within that assumption in an administrative judicial-service relationship. That is my case because, in performing my duties as Coordinadora de Unidad de la Dirección de Planificación, I have not been assigned, and consequently do not perform, any function involving the administration, custody, control, or disposal, under any title, of financial resources belonging to the Poder Judicial or, plainly, to the citizenry by virtue of my duties. There is therefore no basis to believe—much less establish by any means—that serious harm to the judicial service exists. I further state before your Authority that I am fully aware of my duties and responsibilities in the judicial service, as demonstrated by my unblemished record of more than 23 years of service.
Moreover, there has never been in the past, nor is there currently, any complaint or proceeding against me seeking to demonstrate that I committed misconduct in office (falta de servicio) through the improper use of public funds and that such conduct was causally attributable to the economic and financial circumstances that I unfortunately experienced and that resulted in my insolvency, for the reasons presented in my defense in the case being processed by the Tribunal de la inspección Judicial. I also establish before your Authority that the criminal case initiated ex officio pursuant to law as a result of the declaration of insolvency, for the purpose of investigating whether I had committed the offense of fraudulent insolvency (insolvencia fraudulenta), was designated for dismissal by the prosecutor’s office because there was no finding whatsoever of any acts, amounts, or transactions meeting the statutory definition of fraud.
This was likewise determined by the Organismo de Investigación Judicial, according to report [Valor 004] concerning complaint No. [Valor 005] under unique case number [Valor 006], confirming once again that my conduct complied with civil law and with the procedure that such law provides for the orderly repayment of my debts, and that I had to resort to that judicial proceeding on my own initiative because of the pressing financial circumstances I faced. The “traditional” character purportedly found in other legislation and invoked to justify including the grounds challenged in these proceedings must not be treated as a rule requiring equivalent application as grounds for termination from judicial service. This is especially true because, as will be demonstrated below, insolvency is not conceived of in other legislation in the manner regulated by Ley N° 7333. Thus, this argument likewise becomes a basis lacking logic, truthfulness, suitability, or a causal connection to any serious harm to the institution’s judicial-service functions—harm that I have never caused—and which legislative drafting failed to consider, particularly in a punitive disciplinary matter (materia disciplinaria sancionatoria) whose resulting sacrifice harms me through the loss of my employment.
From the investigation and documentary evidence contained in the legislative record for Bill No 10.753, it may be concluded with complete certainty that the inclusion of insolvency (insolvencia) as grounds for ineligibility for appointment and for declaring the termination of an appointment in the judicial service is unjustified and unfounded, particularly because it is inconsistent with the overall regulatory framework governing disciplinary matters under Ley No 7333, which is aimed at demonstrating, following due process (debido proceso), serious harm to the judicial service, nor does it establish the existence of serious misconduct, much less extremely serious misconduct, in the judicial public service as a fundamental element for the punitive application of the challenged grounds. As is evident, in my case this would entail the far greater sacrifice of losing my job and the resulting harm to me personally and to those who depend on me financially, all because of a mere expectation of an alleged risk that, in my case, does not exist and has not been assessed by the Judicial Inspection, since it applies the grounds as a matter of law.
As was demonstrated, and as several bodies warned during the legislative consideration of that bill, it was argued that allowing those grounds as stated would mean punishing a mere danger or simple risk based on considerations of mere judicial convenience, without proof when weighed against decisions born of necessity involving aspects of private life that do not affect the judicial service—in my case, not even slightly, much less seriously or extremely seriously. I attempted to demonstrate this point in the administrative proceeding before the Tribunal de la Inspección Judicial; however, by order of October 18, 2017, it rejected the testimonial and technical evidence I offered for that purpose, finding that “[...] they bear no relation to the allegations in the notice of charges; it should be noted that this disciplinary proceeding is not concerned with the reasons that led to the accused being declared insolvent, as that matter was analyzed in the corresponding judicial proceeding.
Nor is she being accused of any failure in the performance of her duties; accordingly, the testimonial evidence offered is rejected [...].” In this regard, it should be noted, as already stated, that the Tribunal de la Inspección Judicial regards the disciplinary proceeding as involving a pure question of law, without considering other relevant aspects of the employment relationship, through a strict application of the measure regulated by article 26, subsection 9.) of that Law, resulting for the party (sic) in Voto No [Valor 018], which ordered the revocation of my appointment on the ground that the declared insolvency constituted extremely serious misconduct, without actually establishing in that disciplinary proceeding—as already stated—the existence of such extremely serious misconduct based on proven harm to the service I provide to the Poder Judicial, to its institutional image, or to any similar interest, but solely by express provision of article 26, subsection 9.), repeatedly cited above.
In this connection, it should be noted that, in Voto N° [Valor 018], in which the Tribunal de la Inspección Judicial ordered the revocation of my appointment through the express application of article 26, subsection 9.), repeatedly discussed above, it determined that I had engaged in extremely serious conduct because of my insolvency status. Its conclusive finding of the existence of “extremely serious conduct” was also based on article 28, subsection 2., of the Ley Orgánica del Poder Judicial and article 49, subsection c., of the Estatuto de Servicio Judicial, which provide: “Article 28.- Following the established procedure and after being afforded an opportunity to present a defense, the following employee may be removed from office: [...] 2.- An employee who, because of improprieties or failures in the performance of his or her duties or in his or her private life that may affect the proper functioning or image of the Poder Judicial, has become subject to that penalty.” “Article 49.- In addition to the specific duties established by the Ley Orgánica del Poder Judicial, judicial employees shall have the following duties: […] c) To conduct themselves with dignity in the performance of their duties and in their private lives.” As may be seen, those provisions refer directly to harm to the “proper functioning or image of the Poder Judicial,” as well as to maintaining “dignity,” matters that were not demonstrated during the proceeding leading to the decision adopted.
Nevertheless, in a subjective, abusive, unfounded, and merely argumentative manner, they determined, in their view, that I am not a person of integrity, nor a person with high levels of commitment, responsibility, honesty, loyalty, decorum, or good faith, because of the loss of trust allegedly caused by insolvency due to an asserted lack of integrity. It should be noted that, in Voto No [Valor 018] itself, the Tribunal de la Inspección Judicial found as proven facts only the judicial decision declaring my insolvency, my number of years of service credited for seniority with the Poder Judicial, and the absence of prior disciplinary sanctions—not any harm to the service or to the image of the Poder Judicial, nor any personal shortcomings affecting dignity, a concept that must be defined with great care because of the constitutional protection afforded in this area, which places the honor of every person above all else.
At this point, I wish to emphasize that voluntarily submitting to insolvency proceedings, as I have stated, was the alternative afforded to me by the legal system in civil matters to resolve my economic and financial situation, thereby establishing a court-regulated payment schedule to satisfy all my debts and protect my creditors’ interests, all as an act of good faith. This was confirmed in criminal proceedings when it was determined that my insolvency was not fraudulent, and that matter has been closed by the Public Prosecutor’s Office, as will be discussed below. ii.) Provisions related to the alleged unconstitutionality.- In this section, we shall set forth the highly relevant provisions under which a judicial declaration of insolvency constitutes grounds for disciplinary action involving sanctions. The particular relevance of the provisions discussed below stems from the fact that they govern employment relationships in other Branches of the Republic, entities within the Sistema Bancario Nacional, legal advisory and technical bodies, and bodies responsible for oversight and auditing of the Public Treasury.
We shall also refer to specific general provisions governing the civil service, corruption and illicit enrichment, and the private sector. a.) Provisions that make NO reference or mention whatsoever to a judicial declaration of insolvency as grounds for disciplinary action involving sanctions. Ley Orgánica de la Contraloría General de la República, N° 7428, • nor is there any regulation of that matter in its Estatuto Autónomo; • Ley Orgánica de la Procuraduría General de la República, N" 6815; • Ley Orgánica del Banco Central de Costa Rica, N" 7558; • Reglamento Autónomo de la Asamblea Legislativa; • Reglamento al Estatuto de Servicio Civil; • Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, N° 8422; • Ley General de Control Interno, N° 8292. As may be seen, neither the Procuraduría General de la República nor the Contraloría General de la República, in their capacities as legal advisory and technical bodies and as bodies responsible for oversight and auditing of the Public Treasury, have any regulation on the matter.
Likewise, no such regulation exists for the Banco Central de Costa Rica or the Asamblea Legislativa, or generally in specific legislation against corruption and illicit enrichment or governing internal control, so as to establish a declaration of insolvency as “traditional” grounds or as a necessary measure to prevent risks of disciplinary administrative liability. b.) Provisions that DO refer to a judicial declaration of insolvency as grounds for disciplinary action involving sanctions or as a prohibition.- • Ley Orgánica del Tribunal Supremo de Elecciones y Registro Civil, N° 3504. Its article 27 provides, insofar as relevant: “[...] Persons who are subject to criminal proceedings under an order committing them for trial, persons serving a sentence disqualifying them from public offices and positions, persons convicted of offenses ordinarily punishable by imprisonment, insolvent persons and bankrupts whose insolvency or bankruptcy has not been classified as excusable, persons habitually given to drunkenness, persons who have been removed from judicial or electoral offices, and, in general, all persons who fail to exhibit good conduct or whose moral background is questionable may not be appointed to positions in the Tribunal or the Registro [...].” (.- Underlining and boldface are not in the original and are included solely to highlight content of importance to this constitutional challenge-).
As may be seen, although this Entity, classified as a fourth Branch of the Republic, includes the grounds in question for appointment purposes, it does so only subject to an “excusable” standard. This permits and requires the person applying the provision to assess the specific reasons for the declaration of insolvency, the person’s economic and financial circumstances, and any resulting effect on the public service, including even the potential unsuitability of the appointment, but only where there is a proven, real, and actual risk or danger of harm to the public service. That Law does not establish insolvency as grounds for terminating an appointment. • Ley Orgánica del Sistema Bancario Nacional, No 1644. Its article 22 provides, insofar as relevant: “The following persons may not be appointed as members of a board of directors: 1) Persons who, during the year preceding their appointment, have been sued in enforcement proceedings by any bank belonging to the Sistema Bancario Nacional to collect their own unpaid debts, or who have been declared bankrupt or insolvent […]” (.- Underlining and boldface are not in the original and are included solely to highlight content of importance to this constitutional challenge-).
It should be noted that, under this Law, the grounds likewise apply for appointment purposes, but not to just any official; rather, they apply exclusively to members of a board of directors—that is, to the highest-ranking authorities of the banking organization. The Law also establishes an assessment criterion and statutory limitation with respect to a declaration of insolvency made during the 1 year preceding the appointment; in other words, outside that period, the prohibition against appointment to that senior position does not apply, even if insolvency still exists. It bears emphasizing that this Law does NOT establish insolvency as grounds for terminating an appointment, even when the position is a senior one, such as membership on the board of directors of a banking institution. • Ley del Estatuto del Servicio Civil, N° 1581. Article 8, subsection g.) of this Law provides, insofar as relevant: “The Director General de Servicio Civil shall be appointed by the Presidente de la República following a competitive examination, shall report directly to the President, and shall meet the following requirements: [...] g) Not have been declared insolvent or bankrupt; and [...].” (-the underlining and boldface are not in the original and are included in that form solely to highlight their content as a matter of importance to this constitutional challenge (acción de inconstitucionalidad)).
It should be emphasized in this case that, as with the preceding provisions, the statutory regulation of the ground consisting of a declaration of insolvency (declaratoria de insolvencia) is specifically established for appointment purposes, not generally for public officials under the civil service regime, but specifically for the Director General de Servicio Civil. That law does not establish insolvency as a ground for termination of appointment. • Código de Trabajo. Article 85(c) thereof, insofar as relevant, provides: “The following are grounds that terminate the employment contract without liability for the worker and without extinguishing the rights of the worker or the worker’s successors in interest to claim and obtain payment of any benefits and compensation to which they may be entitled pursuant to the Código or special provisions: [...] c.) Force majeure or an unforeseen event, insolvency, composition proceedings (concurso), bankruptcy, or judicial or extrajudicial liquidation, or the incapacity or death of the employer.
This rule applies only when the events to which it refers necessarily, immediately, and directly result in the closure of the business or the permanent cessation of work, and when the statutory priority afforded to the support creditors of the deceased, insolvent, or bankrupt person has been satisfied [...]”. (-the underlining and boldface are not in the original and are included in that form solely to highlight their content as a matter of importance to this constitutional challenge) As may be seen from the foregoing quotation, the Código de Trabajo, as the general law governing employment relationships in the private sector, establishes the ground under discussion, but instead does so as a ground benefiting the worker, in the sense that if it is the employer who becomes insolvent, the worker is entitled to terminate the employment contract without liability. It even establishes a conditional ground requiring an assessment before that statutory basis may be applied, namely that it applies only if the necessary, immediate, and direct consequence is the closure of the business or the permanent cessation of work.
That law does not establish insolvency as a ground for terminating a worker’s appointment.” She explains insolvency as a legal mechanism in civil matters for paying creditors, in the following terms: “i.) Regarding insolvency. Civil insolvency proceedings are regulated as a legal option in Articles 884 et seq. of the Código Civil, which, insofar as relevant, provide:
“Article 884.- For a person’s insolvency to produce all the effects attributed to it by law, it must be judicially declared.” “Article 886.- Whenever, upon application by one or more creditors, it is shown that the debtor’s assets are insufficient to cover the debtor’s debts, a declaration opening composition proceedings shall be appropriate. Insufficiency of assets shall be presumed when the debtor fails to disclose, and the Registro de la Propiedad does not show, assets sufficient to satisfy all the debtor’s obligations. Composition proceedings shall also be opened at the debtor’s own request if the debtor has two or more creditors.” (-the text highlighted in boldface is not in the original and is included in that form solely to highlight its content as a matter of importance to this constitutional challenge-) In the same regard, and with respect to procedural matters, a judicial declaration of insolvency is regulated by Articles 760 et seq. of the Código Procesal Civil, which, insofar as relevant, provide: “Article 760.- Grounds.
At the request of any creditor who establishes that two or more enforcement proceedings are pending against the debtor, arising from different instruments and creditors, that the creditor’s claim under an enforceable instrument is due, and that the debtor’s assets are insufficient, composition proceedings shall be opened if the debtor, after being ordered to do so by the court, fails to pay or, within three days, to identify sufficient assets upon which an attachment (embargo) may be levied. The order containing the demand shall be served personally or by delivery of a notice at the debtor’s residence. The demand shall be dispensed with in the urgent cases specified in the following article. Proof that two or more enforcement proceedings exist shall not be required if two or more creditors request the opening of the proceedings. The same declaration shall be issued at the debtor’s request, and the debtor shall submit a statement of assets and liabilities, or state the reasons preventing the debtor from doing so, and shall also submit the debtor’s books, if any.” (-the text highlighted in boldface is not in the Original and is included in that form solely to highlight its content as a matter of importance to this constitutional challenge-).
Accordingly, legal scholarship has established that insolvency is “[...] The condition of a debtor who lacks sufficient assets to satisfy due obligations is called insolvency. It is not a matter of the person failing to pay one or more obligations; rather, insolvency is determined by the lack of sufficient assets to meet the debts [...]”. (- Ickowez Faingezicht, Roxana. 1999 pp. 29) For its part, the case law of the Sala Segunda de la Corte Suprema de Justicia has stated the following on this subject: “When analyzing the financial situation of a debtor who has multiple creditors and insufficient assets, which justifies collective enforcement, pursuant to Article 982 of the Código Civil, creditors must be considered on the basis of their existence as such, without regard to the nature of the claim—commercial or civil—or whether it arises from a personal debt or a joint and several guarantee, because it is precisely the existence of claims capable of being enforced against the obligor’s assets that makes collective proceedings necessary.
(Sala Segunda. Judgment: [Valor 096] at ten minutes past ten on 31 de mayo de mil novecientos noventa y uno) In light of the foregoing, it is clear that civil law allows any citizen to submit to this type of proceeding as a mechanism for paying debts in an orderly manner due to a lack of sufficient assets and income to meet them. Insolvency proceedings should not be condemned or characterized negatively without assessing the reasons that gave rise to them, particularly in a case such as mine, in which it was demonstrated that there were not even any acts, amounts, or transactions classified as fraudulent, as determined by the Organismo de Investigación Judicial in report [Valor 004] concerning complaint N° [Valor 005] under unique expediente number [Valor 006].” She explains the causes of her insolvency as follows: “As the petitioner, I instituted proceedings for a Declaration of Insolvency before the Juzgado Civil de Cartago pursuant to Articles 884 et seq. of the Código Civil and 760 et seq. of the Código Procesal Civil, as any Costa Rican citizen might be entitled to do under civil law, as a viable and lawful mechanism for honoring the debts that burdened both my personal and family finances.
As I duly explained in the civil proceedings, the financial decline I experienced began during my most recent marriage because of the inequality that always existed in the allocation of obligations, which required me to bear the greater share of housing, utilities, food, and my son’s education expenses, as well as all his expenses from before his birth and all the specialized medical treatments, examinations, vaccinations, and other care he had to receive from approximately six months of age because of recurring respiratory problems, lactose intolerance that caused gastric problems, vision treatment, otorhinolaryngological treatment for nosebleeds, and other conditions, since his father never incurred any expenses for his son’s healthcare. Furthermore, that relationship was marked by psychological and financial abuse, for which reason I had to seek psychological assistance from the Servicio Médico de Empleados de Poder Judicial, because among the effects caused by so many years of abuse were my constant apprehension and permanent fear of my former spouse, both for my physical safety and my son’s, as well as diminished self-worth and strong feelings of sadness, frustration, and depression, among others.
Among the situations I experienced, it was common for my former husband, whenever he became upset about something—which happened frequently—in addition to his continual insults, sarcasm, humiliation, and violent outbursts, to stop contributing his share of the family expenses, forcing me to cover all household expenses. This was not possible on my salary alone, so I had to use credit cards or other sources of borrowing to get by, because asking him for money for the expenses would anger him even more and cause him to erupt, become violent again, insult me, and belittle me. It was also common for me to cover in full the expenses arising from our son’s education, including school and later secondary-school activities, because he refused to pay those expenses. The same occurred with the person who cared for our son, whose year-end bonus (aguinaldo) he refused to pay in December, which I also had to cover.
In addition, I assisted my former husband with some personal expenses because, at that time, since my gross salary was higher than his, he asked me to do so and, I reiterate, I did not have the courage to say no. All of the foregoing affected our family finances in some way and, even more so, my personal finances. When the marriage ended, my emotional and personal condition deteriorated to such an extent that I necessarily had to receive treatment again from Psicóloga Yesennia Paniagua Gómez, Profesional del Servicio Médico de Empleados del Poder Judicial, who detected (sic), during a clinical assessment, that I was being subjected to psychological and/or emotional abuse, as well as financial abuse, because it was systematic abuse that caused me to feel diminished as a woman and as a person. My entire personal and financial life suffered a severe disruption, which led me to seek a legal solution, precisely because I have never considered evading my responsibilities as a debtor.
Quite the opposite: the solution offered to me by legal counsel was specifically to seek a declaration of insolvency, particularly because I had no assets with which to satisfy the credit transactions and because, as a mother and female head of household, I also had to meet a series of priorities, including clothing, healthcare, food, education, and housing for myself and my son [Nombre 012], as well as for my elderly parents. My sole source of income was my salary from the Poder Judicial, which, it bears noting, was offered to the Civil Judge in those proceedings as the sole means of paying the creditors.
As may be seen, judicial insolvency (insolvencia) was the mechanism available under civil law to meet the need to honor my debts in the best possible manner, as well as to enjoy the constitutional right that I possess to a dignified life, which was being rendered ineffective by the financial burden borne by the undersigned. This aspect was acknowledged by the Civil Court of Cartago itself, in judgment N° [Valor 042] declaring my insolvency, when it stated:
“Taking into consideration the gross salary received by the claimant, in relation to the other documented obligations, together with the presumed cost of a dignified life for any person who is a rights-holder, it is evident that the imbalance in this debtor’s finances is so severe that it is impossible for him to pay, on time and in full installments, the debts he incurred, in relation to his constitutional right to a dignified life.” It is a Judge of the Republic who, through the legal mechanisms provided by Costa Rican civil legislation for resolving a legal dispute brought before him, accepts and endorses the payment mechanism for settling and thereby honorably paying my debts, namely, through the salary earned as a result of my work in the Poder Judicial, but distributed equitably among my creditors so as to maintain orderly payment of the debts. The entire foregoing situation, including the discharge summary (epicrisis) prepared by Psychologist Yesennia Paniagua Gómez, a professional with the Servicio Médico de Empleados del Poder Judicial, was submitted and offered as evidence before the Tribunal de la Inspección Judicial under expediente N° [Valor 001], as a pending matter relevant to this action; nevertheless, it was summarily rejected without further assessment on the ground that it was unrelated to the subject matter of the proceeding.” She describes her profile and duties as a professional in the Dirección de Planificación del Poder Judicial:
“The purpose of this section is to place on record my professional profile and the duties I have performed since the date on which the Civil Judge judicially declared me insolvent, on the basis of the matters already explained. Three periods will be identified, involving different administrative, nonjudicial positions that I have held since that date in the Dirección de Planificación del Poder Judicial, as a result of my dedication to serving the institutional framework of the Poder Judicial. At the time insolvency was declared, I held a permanent administrative position as Professional 2 in Public Administration, assigned to the Sección de Proyección Institucional of the Dirección de Planificación del Poder Judicial. The principal administrative duties under my responsibility were as follows: i. Designing and conducting research, plans, work programs, projects, and complex analyses in various areas of the administrative field; ii.
Collecting, classifying, tabulating, and analyzing varied and complex information in order to propose the adoption of institutional policies; iii. Preparing procedural manuals; iv. Conducting structured, semi-structured, technical, specialized, and other interviews as part of the assigned activities; v. Participating in the establishment of indicators for monitoring work plans, programs, and projects; vi. Preparing, analyzing, and interpreting tables, charts, trends, and varied information; vii. Drafting reports, procedures, and other documents arising from the activities performed, including the relevant recommendations and observations; viii. Maintaining various controls over the activities under her responsibility and ensuring compliance with the established programs, dates, and deadlines; ix. Attending meetings, seminars, talks, and other similar activities; and x. Responding to inquiries.
As of 1 de marzo de2017, I was promoted on a permanent basis to the administrative position of Unit Coordinator 2, assuming responsibility for coordinating the Unidad de Gestión Administrativa of the Dirección de Planificación, whose principal duties are: i. Coordinating, carrying out, and supervising the Unit’s technical and administrative work in accordance with the guidelines and policies established by management; ii. Assisting in the preparation and formulation of work programs and annual operating plans; iii. Preparing, analyzing, and interpreting statistics, tables, charts, and diverse information; iv. Ensuring that the records, files, controls, and statistics of the Unit under her responsibility are kept up to date; v. Assisting the Heads of the Subprocesses or Sections in coordinating professionals and serving as facilitators for the various projects or thematic areas assigned to each subprocess; vi.
Participating in the preparation of work programs related to internal control; and vii. Guiding lower-level staff in performing their duties. Since 21 de febrero de 2018, I was again promoted—on an acting basis—to Unit Coordinator 3, assuming responsibility for the Evaluation Subprocess of the same Dirección de Planificación, whose principal duties are: i. Coordinating, carrying out, and supervising the professional, technical, and administrative activities performed within a Unit; ii. Assisting her superiors in developing project proposals, research, and technical studies aimed at improving efficiency and effectiveness in carrying out the activities within her area of responsibility; iii. Conducting research related to the Unit’s work program; iv. Collecting, classifying, and analyzing varied information related to the Unit’s area of responsibility and formulating recommendations; v. Participating in the preparation of work programs, the annual operating plan, internal control, and SEVRI, among others; vi.
Attending meetings with superiors and colleagues to analyze problems arising from the Unit’s activities and propose changes, adjustments, and solutions; and vii. Preparing, analyzing, and interpreting statistics, tables, charts, and diverse information. As may be seen, I do not perform senior management duties, much less judicial functions, but rather administrative management duties whose work product is subject—as a routine matter of internal control—to the approval and final decision of my superiors. It is therefore established that I do not administer, safeguard, control, or otherwise dispose of, under any title, financial resources belonging to the Poder Judicial or to third parties by virtue of my position; that I do not issue final administrative acts (actos administrativos); and that I do not provide services to the public, to such an extent that I am not subject to any type of bond (caución) by reason of my duties.
Furthermore, I am pleased to inform you that throughout all my years of service, which now exceed 23 años, I have never been subject to disciplinary sanctions and have an impeccable record, which even resulted in my receiving the Certificado al Mérito Judicial in 2015.” She asserts that artículo 12 and inciso 9 del numeral 26 de la Ley Orgánica del Poder Judicial are unconstitutional for the following reasons:
“The ground consisting of a judicial declaration of insolvency is treated as a measure or criterion of suitability for appointment (artículo 12 de la Ley N° 7333-), as well as a ground for termination of appointment (artículo 26 inciso 9. de la Ley N° 7333-), thereby impairing that special protection afforded to the right to work. As demonstrated by the analysis of the bill that became that Ley Orgánica del Poder Judicial, this ground was incorporated into that body of law without addressing or providing for the circumstances that may surround such a judicial declaration in relation to the effective public service provided by the Poder Judicial, whether judicial or administrative in nature. Nor does it provide for any conditional ground or assessment prior to applying that statutory provision, which, when artículo 26 inciso 9. De dicha ley is applied, results automatically in termination of appointment as the most severe disciplinary measure, even where there is no damage, harm, or adverse effect upon the service, the reputation, or the institutional integrity of the Poder Judicial, much less upon society, and where there is no proven serious misconduct, much less extremely serious misconduct, affecting the judicial public service as a result of the declaration of insolvency.
This is demonstrated by the grounds for the sanction set forth by the Tribunal de la Inspección Judicial in Voto No [Valor 018] in my particular case, which—without further evidence or proof based on the procedure it followed—characterizes me, because of the declaration of insolvency, as an official lacking integrity, commitment, responsibility, honesty, loyalty, decorum, and good faith, and states that the situation gives rise to a relationship of distrust, on the ground that the Poder Judicial ‘needs assurance that the person hired is honorable and accountable for his or her actions,’ considering such conduct incompatible with public service. Nevertheless, in the proceeding conducted under expediente N° [Valor 001], those matters were not assessed; indeed, the evidence I sought to submit was rejected on the ground that the provision applied automatically as a matter of law. The only facts deemed proven were the judicial ruling concerning my insolvency, the number of seniority increments I had accrued in service to the Poder Judicial, and the absence of prior disciplinary sanctions—not any adverse effect upon the service or reputation of the Poder Judicial, nor any personal shortcomings affecting dignity, which is the basis of the provisions invoked.
The assessment conducted by the Tribunal de la Inspección Judicial does not establish the actual, causal, or objective existence of any serious adverse effect upon the judicial service, the institution’s reputation, or the prevailing public interest of the Poder Judicial, thereby punishing only an unfounded potential risk or mere expediency arising from the automatic application of the law. In addition, the proposed sanction seriously violates an elementary principle of labor law that applies supplementarily to public employment relationships: the protective principle (principio protector) and, consequently, the application of the in dubio pro operario rule (in dubio pro-operario). This will later be associated with the violation of the presumption of innocence (principio de inocencia) to which I am entitled. Accordingly, the revocation of appointment imposed upon me on the stated ground should have constituted the measure of last resort (última ratio), with the sanction most favorable to the worker being selected, in application of the principles governing constitutional law and the review for conformity with international conventions (control de convencionalidad), particularly in view of a sanction that is manifestly and flagrantly contrary to the legal system.” As is well known, this rule is also applicable when interpreting the facts or, if preferred, when weighing the probative value of the evidence (valor de la prueba), seeking the most favorable condition and the continuity of the service relationship (relación de servicio).” She argues that her declaration of insolvency (declaratoria de insolvencia) resulted from a decision of her own that she made pursuant to freedom of will (autonomía de la voluntad), and that she therefore used a legal option afforded to her by the legal system (ordenamiento jurídico) to seek a solution to her economic and financial situation and thereby establish regulated payment of her debts.
She asserts that the legal institution of insolvency (instituto de la insolvencia) is not a sanction, offense, or crime unless it is declared fraudulent. With respect to freedom of will, she partially transcribes decision [Valor 043] . She cites section 28 of the Constitución Política. She adds that the declaration of insolvency, which she herself petitioned for, does not harm, affect, or violate morality or public order. She further states that the notice of charges (traslado de cargos) issued by the Tribunal de la Inspección Judicial neither specifies nor seeks to prove any of the foregoing, nor any impairment of public service due to the existence of a serious or extremely serious offense arising from the insolvency. She maintains that no analysis was made as to whether her condition harms third parties, since her creditors will have their claims satisfied under the insolvency proceeding rules (reglas concursales) through the withholding of a portion of her salary.
She states that, based on the wording of subsection 9) of article 26, the Tribunal de la Inspección Judicial does not require any type of harm or loss to a third party (in this case, the Poder Judicial as employer), but instead applies its literal wording by operation of law (de pleno derecho). She contends that the assessment made is merely subjective. She recounts that she is facing a ground that seeks the termination of her appointment, without any proof, assessment, or actual or objective causal connection regarding impairment of public service or verification of a serious or extremely serious offense against the administrative judicial public service (not the jurisdictional service). She notes that this provision imposes the most burdensome measure as punishment for an expectation or a potential risk or danger, which in her case is nonexistent. She states: “it is evident that the warning issued by the Comisión Legislativa de Gobierno v Administración, which reviewed Bill No 10.753, has become a reality, when it warned that a mere danger or potential risk would be punished without even an actual, direct, objective, or causal assessment showing deterioration of, impairment to, or harm to the administrative service provided by the Poder Judicial.
At this point, I emphasize what was stated in the record of Bill 10.753, specifically at folio [Valor 025] (image [Valor 026]), where the legislative discussion concerning the different grounds in the cited articles underscores that they were concerned with the service and the administration of justice, and where, with reference to insolvency, it is stated that the basic rationale of the grounds must be understood so that it is absolutely clear that they apply insofar as those circumstances ‘affect the public service.’” She asserts that she does not administer, control, or dispose of financial resources belonging to the Poder Judicial, and therefore no type of bond (caución) arising from her duties applies to her, nor does she perform tasks involving the issuance of final administrative acts (actos administrativos finales). She argues that, in her case, what “Magistrate Luis Paulino Mora said at the time during the legislative discussion of that ground is applied, namely, that I am responsible for resolving all types of disputes that exist between citizens and the State (-which does not apply to me-); that the ground of insolvency entails a certain loss of trust (-this has not been demonstrated in my case, particularly since throughout my judicial career I have demonstrated to date my merit and fitness for my professional duties-); and that I will potentially have control over citizens’ financial assets (which does not apply to me).” She adds that there is a serious and ongoing infringement of family protection and legal certainty because, as a female head of household, the measure would result in termination of her appointment, undermining her ability to meet her own needs and those of her son and parents; moreover, her creditors would no longer have their claims satisfied because there would be no salary from which a proportional amount could be withheld, as she has no attachable assets.
In connection with the right to family protection, she cites judgment no. [Valor 097]. She states: “Like article 56 of our Constitución Política, which establishes a protective limitation on the State with respect to the right to work, the Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly, provides, among other things, for every individual’s right to a dignified life, the right to work, and protection against unemployment, all without discrimination of any kind, including on grounds of economic status or circumstances, as in my case. In the same vein, Convention III and Recommendation III adopted by the International Labour Organization, of which Costa Rica is a member, concerning discrimination in employment and occupation, prevent situations from occurring in either State bodies or private enterprises that entail discrimination to the detriment of the sacred rights that, by nature and by virtue of our humanity, constitute the heritage of every individual.
From all of this arose Law No 2694, of 22 November 1960, that is, the International Labour Organization Convention on the prohibition of discrimination in employment, which remains in force and prohibits ‘[...] every kind of discrimination determined by distinctions, exclusions, or preferences based on considerations of race, color, sex, age, religion, marital status, political opinion, national ancestry, social origin, parentage, or economic status, that restrict equality of opportunity or treatment in employment or occupation.’ In that regard, it should be noted that the prohibition arising from that conventionality review (control convencional) has only one exception, defined in article 2 of that same Law N' 2694, which provides: ‘Excluded from the foregoing prohibition are those distinctions, exclusions, or preferences warranted by the qualifications necessary for the proper performance of the functions or tasks inherent in the type of position or employment, exclusively in accordance with their nature and the worker’s circumstances.’ With respect to the foregoing, it has been demonstrated that, in my case, discrimination is realized through the exhaustive statutory ground (causal taxativa) that results in termination of the appointment based merely on convenience, a mere danger, or a potential risk, without any effective, actual, objective, or causal assessment of the administrative service under my responsibility as a result of my judicial declaration of insolvency.” She concludes that the infringement of her fundamental rights to protection of work, family, and legal certainty is ongoing and amounts to discrimination based on her economic status .
She adds that the Tribunal de la Inspección Judicial did not even assess a low level of risk in her case, because, had it done so, it would have imposed suspension from employment as a precautionary measure (medida cautelar), in accordance with the authority established in article 202 of the same law no. 7333, since this is a ground for termination of appointment. ii) “Violation of the right to culpability and innocence (derecho de culpabilidad e inocencia) because there was no impairment of public service or harm to third parties, nor was a serious—much less an extremely serious—offense against the judicial public service established through the proper application of due process (debido proceso). An (sic) act performed in good faith is punished by the greater sacrifice of termination of appointment based on a potential risk that was neither proven nor evaluated, as well as on mere or apparent institutional convenience that is unfounded and unjustified.” She argues that the provisions challenged in this constitutional action (acción de inconstitucionalidad) flagrantly violate the essential content of article 39 of our Carta Magna and the principles comprising Constitutional Law (Derecho de la Constitución), because the judicial declaration of insolvency is intended to serve as a ground for preventing appointment to judicial service, as well as for removing an official, without any further assessment or proof of actual, causal, and objective harm or loss to the institutional integrity of the Poder Judicial.
She adds that this ground is applied based on considerations of mere unjustified convenience and criteria concerning a potential risk, without any demonstration that there is even a minor, moderate, or serious impediment to the service provided by the Poder Judicial or, specifically, by the Dirección de Planificación. She maintains that disciplinary application of that ground does not take into account whether the work is jurisdictional or administrative, nor are criteria assessed or applied that demonstrate the existence of any impairment of the public service provided by the Poder Judicial. She states that the Tribunal de la Inspección Judicial applies the ground by operation of law and that, in her case, without further assessment, it denied the expert and testimonial evidence (prueba técnica y testimonial) she offered, which was intended to demonstrate her performance, whether any impairment of public service existed, among other matters.
Notwithstanding the foregoing, the Tribunal de la Inspección Judicial characterized her as an official lacking integrity, commitment, responsibility, honesty, loyalty, decorum, and good faith; it further stated that a relationship of distrust exists because the Poder Judicial “needs assurance that the person hired is honest and accountable for her actions” and, consequently, that her conduct is incompatible with public office. She states that, in order to provide a rationale for the disciplinary measure imposed, the tribunal characterized insolvency as an extremely serious offense incompatible with public service and made unproven assessments in violation of her due process rights. She argues that she is deemed “culpable ” for having sought in good faith the application of a legal institution provided for in the legal system. She insists that insolvency—unless declared fraudulent—is not a crime that disqualifies her from public office, nor is it a sanction that should result in termination of her appointment.
She states that she is deemed “culpable” without any assessment of her “innocence ” in relation to impairment of the services, goals, or objectives of the Poder Judicial, or the existence of possible or potential risks arising from the management or disposition of public resources. She states that she would be subjected to the disciplinary punishment of termination of her appointment, in violation of her “fundamental right to innocence .” She argues that the challenged provisions contravene the constitutional parameters and principles identified above, as well as “ the principle of congruence (principio de congruencia), which is required by the very standards of legal certainty and due process.” She reiterates that only the Tribunal Supremo de Elecciones and the Registro Civil provide for declarations of insolvency in connection with appointments; nevertheless, they do so under an “excusable ” standard, which allows the person applying the provision to assess the precise reasons for the declaration of insolvency, the person’s economic and financial circumstances, and whether fraudulent insolvency exists, in order to assess any potential impairment of public service or the “existence of a serious or extremely serious offense against the judicial public service.” It partially cites judgment no. [Valor 098] of this Chamber, in connection with good faith as a principle of Constitutional Law.
She mentions that, throughout her twenty-three years of service in the Poder Judicial, she has applied the highest ethical standards, as well as the institution’s values, which she sought to establish through testimonial evidence (prueba testimonial) that the Tribunal de la Inspección Judicial rejected on the grounds that “[...] it is unrelated to the allegations set forth in the notice of charges (traslado de cargos); it should be noted that this disciplinary sanctioning proceeding does not concern the reasons that led to the accused being declared insolvent, as that matter was analyzed in the respective judicial proceeding. Nor is she being accused of any failure in the performance of her position; therefore, the testimonial evidence offered is rejected [...]”. She notes that the Tribunal de la Inspección Judicial considers the proceeding to involve purely legal issues, without considering other aspects of the service relationship.
She states that she petitioned for the declaration of insolvency (declaratoria de insolvencia) on her own initiative, which substantiates her good faith in seeking a financial solution and paying her creditors. She reiterates that the notice of charges made no reference to any breach of institutional ethical standards or values arising from the judicial declaration of insolvency or to any “adverse effect on the judicial service, the institutional image, or the prevailing public interest of the Poder Judicial, nor to the existence of serious or very serious misconduct in the judicial public service as a result thereof, all because no such effect or misconduct exists.” She describes three grounds for disciplining judicial officers. She states that the challenged provisions appear to punish the existence of a “loss of trust” arising from the judicial declaration of insolvency; nevertheless, an objective loss of trust exists when the employee’s good faith, performance, and loyalty toward the employer are assessed, such that it is substantiated and demonstrated—in a consistent and proportionate manner—that the employee’s conduct creates a real and imminent harmful conflict leading to the conclusion that continuation of the employment relationship is impossible.
She cites judgments nos. [Valor 044], [Valor 045], [Valor 046], and [Valor 047] of the Sala Segunda de la Corte Suprema de Justicia concerning objective loss of trust. She argues that if the judicial declaration of insolvency is intended to substantiate the Poder Judicial’s “loss of trust,” resulting in termination of appointment (cese del nombramiento), then, because this is a disciplinary sanctioning matter, the legal provision must establish in its content the constitutional standard of serious, causal, reasonable, and objective culpability on the part of the official in relation to the public service and public interest, so as to demonstrate that continued employment is genuinely impossible or, alternatively, to exonerate the judicial employee for “failure to demonstrate those factors that prevent her from performing the public position.” iii) “Violation of the Right to Privacy, Human Dignity, and the Pro Homine principle.
Absence of a legitimate purpose for the disciplinary sanction of termination of appointment in view of the greater sacrifice entailed by that disciplinary sanction, where there is no adverse effect on the public service, the institutional framework, or the image of the Poder Judicial, nor any showing of serious, much less very serious, misconduct in the judicial public service arising from the insolvency.” She mentions that the rights to privacy and human dignity in the face of discrimination have been developed by this Chamber and by international human rights provisions and case law. She indicates that these rights are treated as forms of protection for the individual. She cites excerpts from judgments nos. [Valor 048], [Valor 049], [Valor 050], [Valor 051], [Valor 052], [Valor 053], [Valor 054], [Valor 055], and [Valor 056]. She states that it was in good faith, and solely in an effort to find a solution to her financial circumstances, that she petitioned for the declaration of insolvency.
She reiterates the argument concerning Article 28 of the Constitución Política and the absence of harm to the Poder Judicial. She considers that the declaration of insolvency contemplated in the challenged articles, which results in termination of appointment, does not serve a legitimate punitive purpose; this infringes the fundamental rights to privacy and human dignity and also creates a high degree of discrimination based on economic circumstances. She argues that the foregoing would affect the persons who depend on her. She partially cites judgment no. [Valor 057] concerning the principle of legitimate purpose. She explains that, through this constitutional challenge (acción de inconstitucionalidad), she does not seek to deny the Poder Judicial’s authority and powers to direct, supervise, and discipline within its administrative service relationship; however, her fundamental rights must be respected, since objective and reasonable sanctioning elements must be established before a penalty may be imposed, based on actual proof of serious or very serious misconduct or of an adverse effect on the judicial service, institutional image, or public interest, rather than mere suspicion, mere convenience, or a possible risk; in other words, a ground lacking technical and legal substance that illegitimately punishes her years of service in the Poder Judicial, with consequences for her privacy and dignity, because she would be treated as though she had committed a criminal act or a serious or very serious offense.
She mentions that “the legislative intent reflected in the file for bill 10.753, when the different grounds contained in the cited articles were discussed in the legislature, emphasizes that the legislators were concerned with the service and the administration of justice and that, with reference to insolvency, the basic rationale of the grounds must be understood so that it is absolutely clear that they apply insofar as those circumstances ‘affect the public service,’ which is not my case.” She maintains that, in view of the rights to privacy and human dignity, as well as the application of the pro homine principle, the challenged provisions must be applied in the manner most favorable to the human person. She partially transcribes judgments nos. [Valor 058], [Valor 059], and [Valor 060] of this Chamber. She explains that all restrictive and punitive measures, including termination of appointment, must safeguard human dignity, the protection of privacy, and the principle of proportionality, all under the pro homine principle, so that the magnitude of the potential or possible harm is assessed.
She argues that, in her case, the insolvency arose from a marital relationship that led to numerous loans being taken out in her name to alleviate financial mismanagement, which ultimately resulted in the dissolution of the relationship. She adds that, as a result of the foregoing, psychologist Yesennia Paniagua Gómez, a professional with the Servicio Médico de Empleados del Poder Judicial, determined that she was being subjected to psychological and/or emotional abuse, as well as financial abuse, because it involved systematic abuse that caused her to feel diminished as a woman and as a person. She argues that there is a gender-related factor constituting a genuine and excusable reason that must be considered in assessing what ultimately led her to decide to petition for a judicial declaration of insolvency, which she did for the sake of her own human dignity and that of those who depend on her.
She states that it would have been very easy for her to allow judicial debt-collection proceedings to be brought in connection with those loans, since she has no attachable assets and her salary could not bear any further restrictions. She states that voluntarily resorting to civil proceedings to be judicially declared insolvent has caused emotional and depressive repercussions for her and her family, and even revictimization from the psychological and emotional abuse she experienced. She asserts that she mentions the foregoing because the Poder Judicial adopted the “Política de Igualdad de Género” so that a gender perspective would be incorporated into all the work of that Branch of the Republic. She mentions that the foregoing is supported “by the legal framework for the protection of human rights, at both the national and international levels, which enshrines, among others, the protection of the rights to equality without discrimination of any kind, equal protection of the law, and access to prompt and effective justice, all of which are enshrined in the principles comprising the Declaración Universal de Derechos Humanos, Convención Americana de Derechos Humanos o Pacto de San José, Pacto Internacional de los Derechos Civiles y Políticos, Convención para la eliminación de todas las formas de discriminación contra la mujer, and Constitución Política de Costa Rica.” She adds that this policy “recognized that ‘Equality before the law means the possibility of differential treatment when circumstances differ, that is, when persons are situated unequally,’ and likewise that ‘The principle of equity encourages judges, as well as all legal practitioners, to take into account, on equitable grounds, the human background of disputes and to consider the personal, family, and social circumstances in each case and their consequences,’ which is not being applied because of the unconstitutional content challenged through this action.” She notes that the policy’s objective is “to guarantee equal opportunities for women and men and non-discrimination on the basis of gender in judicial decisions, in the public service of the administration of justice, and in the internal operation of the Poder Judicial.” She explains that “this Política de Igualdad de Género was based on the ‘Reglas de Brasilia sobre el Acceso a la Justicia de las Personas en Condición de Vulnerabilidad,’ under which Rule 19 states: ‘Violence against women means any action or conduct based on gender that causes death or physical, sexual, or psychological harm or suffering to women, whether in the public or private sphere, through the use of physical or psychological violence.’ It may therefore be noted that this situation of vulnerability caused by such psychological violence, as established by the Poder Judicial’s own medical authorities in the field of psychology, demonstrates a circumstance requiring consideration from the standpoint of gender protection and equality, taking into account my personal, family, and social circumstances and their consequences.” iv) “Violation of the principles of Proportionality and Reasonableness of the disciplinary sanction.
Absence of a suitable connection and consistency between the conduct regulated, the severity of the disciplinary sanction, and the greater sacrifice it entails. Existence of discrimination on the basis of my economic circumstances.” She states that, in addition to the violation of the fundamental human rights and principles contained in our Political Constitution and the Law of the Constitution that have been invoked as grounds for this constitutional challenge (acción de inconstitucionalidad) against Articles 12 and 26, subsection 9), specifically regarding the invocation of a judicial declaration of insolvency (declaratoria judicial de insolvencia) as grounds for denying the appointment of a judicial employee, as well as for establishing disciplinary grounds for termination of appointment (cese de nombramiento), there is also a violation, by act and omission, of the constitutional principles of proportionality and reasonableness in the resulting termination of appointment.
She notes that these provisions lack real, suitable, necessary, causal, and objective elements for assessing consistency, balance, and connection with the essential content of sanctioning law (derecho sancionatorio). She adds that, in their application, no analysis is made of the factual circumstances, the judicial employee’s personal circumstances for purposes of determining whether the situation is excusable, the corresponding sacrifice entailed by the measure, or the resulting grounds for termination of appointment due to the existence of a judicial declaration of insolvency, all of the foregoing in relation to whether or not the public service provided by the Poder Judicial, its institutional image, or the prevailing public interest arising from the performance of the position has been affected. She states that the application of these grounds likewise does not require proof of serious or very serious misconduct affecting the judicial public service.
She cites the decisions of this Chamber, Nos. [Valor 061] and [Valor 062], concerning the principles of proportionality and reasonableness. She explains that it is necessary to apply a proportionality test (test de proporcionalidad) to the challenged provisions in order to identify and substantiate the existence of the alleged violation of fundamental rights. She adds that the test contains three subprinciples that operate as rules to be taken into account, in the sense that they are standards against which the matter must be examined; that is, it must be determined whether the means selected satisfy the requirements of suitability, necessity, and proportionality in the strict sense, and if the answer is unsatisfactory, the consequence would be the unconstitutionality of the provision. She maintains that this test seeks to determine the legitimate aim and suitability of the measure, as well as the necessity and proportionality of the provision, and that the Inter-American Court of Human Rights has established that States Parties are obligated to adopt the necessary domestic measures to bring their conduct and legislation into conformity with conventional standards.
She states the following: “Before applying this proportionality test, considering the means and purpose of the challenged provisions, we must ask ourselves a question: is it necessary to apply, as the sole and most severe disciplinary sanction, the termination of appointment of a Poder Judicial official who has been judicially declared insolvent in order to effectively guarantee the administrative public service for which that official is responsible within the Poder Judicial? Conducting the proportionality test will give us that answer, because, in this specific case, proportionality seeks, as values, balance and moderation in the application of provisions that tend to restrict fundamental rights or to result in the application of a disciplinary sanction.” She presents the analysis as follows: “a.) As the first element of the proportionality test, we have the ‘Means employed by the legal provision versus its purpose,’ that is, its appropriateness, suitability, and effectiveness.
In this regard, the means employed by the legal provision must be suitable, appropriate, capable, and effective in achieving the proposed aim; that is, the means selected must be the most appropriate in light of the factual possibilities, taking into account the aim to be achieved. There must be an assessment of consistency and a practical connection between the means and the immediate purpose of the provision, since if that purpose is not capable of being achieved, the measure is disproportionate even if the restriction itself is suitable. In the case before us, Articles 12 and 26, subsection 9.) of Ley N° 7333 respectively establish, insofar as relevant, the prohibition against appointing to judicial service persons who have been judicially declared insolvent, as well as grounds for terminating the appointment of persons serving in judicial positions for the same reason, namely, having been judicially declared insolvent.
As stated in this action, and because those statutory provisions do not expressly or implicitly state their purpose, consideration must be given for those purposes to the legislative debate conducted by the Comisión Mixta Legislativa, which considered and determined the final wording of Bill No 10.753, now Ley N° 7333, (-as previously noted-), as an element defining the legislative intent underlying those grounds. In that regard, the purpose established for the statutory provisions challenged herein is deemed precautionary, based on considerations of trust concerning the management of financial resources and the resolution of disputes submitted for adjudication, because during that legislative debate, in the express words of Mag. Luis Paulino Mora, then a member of that Comisión Mixta Legislativa, it was stated that ‘[...] Judicial employees must enjoy a certain degree of trust from the public because, ultimately, we are responsible for resolving all kinds of disputes [...] with respect to a person who has been declared insolvent, there is a certain loss of trust in that person, given that the person has been unable to manage his or her financial assets and may eventually be in a position to manage the financial assets of the citizenry [...]’; this was the basis and/or criterion for making the ultimately approved text of those statutory provisions final.
The means used by those provisions to achieve that purpose are, on the one hand (-Article 12-), to prohibit the appointment as judicial employees of persons who have been judicially declared insolvent; and, on the other hand (-Article 26, subsection 9.-), to provide for termination of appointment on those same grounds, namely, having been judicially declared insolvent. In this regard, it must be emphasized as a highly relevant consideration that, in both cases, the wording associates those grounds, for purposes of the proportionality analysis explained above, with other grounds relating to criminal convictions resulting in imprisonment and to persons subject to disqualification from holding public positions or offices. In light of the foregoing, in my case, as is evident and documented in the record of civil insolvency proceeding No [Valor 002], the Juzgado Civil de Cartago, in Judgment N° [Valor 063], by which it declared me insolvent, merely ordered that, by operation of law, I be separated from and deprived of the authority to administer and dispose of property belonging to me that may lawfully be attached, and warned me not to leave my domicile or depart the country without judicial authorization, under penalty of being prosecuted for disobedience to authority; however, it never ordered that, as a result of the insolvency, I be disqualified from holding public positions or offices.
In addition to the foregoing, and as I already mentioned supra, the criminal proceeding initiated ex officio by statutory mandate as a result of the declaration of insolvency, for the purpose of investigating whether I had committed the offense of fraudulent insolvency, was designated for closure by the prosecutor because there was no finding whatsoever of the existence of acts, amounts, or transactions characterized as fraudulent, as determined by the Organismo de investigación Judicial in report [Valor 004] concerning complaint N° [Valor 005] under unique case number [Valor 006]. Based on the foregoing, it is evident that the means employed by those statutory provisions are not only unsuitable, inappropriate, and incapable of achieving the proposed aim; treating a judicially declared insolvent person as lacking the qualifications for judicial service—to such an extent that those already employed have their appointments terminated—also entails a case-specific and trivial application based on an apparent and unjustified loss of trust.
As already stated, this instead appears to favor the imposition of a sanction requiring the employee to bear the greatest possible sacrifice because of a contingent, unproven situation involving mere risk, mere danger, or convenience, without any effective, genuine, and objective assessment of the general institutional purpose, namely, public service. I insist once again that this aspect was not assessed by the Tribunal de la Inspección Judicial either; moreover, it rejected the testimonial and expert evidence I offered for those purposes, through which I could have demonstrated the causes of my economic and financial situation, as well as my institutional performance in an administrative, rather than adjudicative, capacity. It should also be added that the legislative intent contemplated these grounds because of an official’s potential use of resources in resolving disputes, that is, in the performance of purely adjudicative duties rather than administrative duties, which—as in my case—do not involve administering, holding in custody, disposing of, controlling, or safeguarding any public funds whatsoever; moreover, I do not serve members of the public, nor does the resolution of any dispute depend on that administrative work.
Accordingly, the first parameter of this test may be considered to establish that the provision is disproportionate, because there is no consistency between the means and the immediate purpose of the provision in accordance with the standard required by the Law of the Constitution. Although preventing the appointment, and terminating the appointment, of a person in that situation might be regarded as the means of achieving the stated aim, the countervailing consideration—the restriction imposed without determining whether the situation is excusable and without regard to innocence, in light of the extraordinary sacrifice it causes and in violation of the aforementioned standards—gives rise to the alleged disproportionality. This is particularly so when, as in my case, the application of this disciplinary sanction does not include an assessment of whether the prevailing public service, the image and institutional integrity of the Poder Judicial, public order, morality, or third parties have been affected, or whether serious or very serious misconduct affecting the judicial public service occurred as a result of those grounds. b.) As the second element of the proportionality test, we have the ‘Means employed by the legal provision versus the need for regulation.’ In this regard, the issue assessed is whether those means are needed to achieve the intended regulation; that is, this is the requirement to optimize the least burdensome means, under which it must be determined whether the aim could be achieved in another manner that would affect the individual less.
For these purposes, different means must be compared to determine the least burdensome alternative capable of achieving the intended legal regulation. In light of the foregoing, an excessive measure is condemned where the sacrifice imposed by the provision is claimed to be urgent or imperative.” With respect to the provisions challenged through this constitutional challenge (acción de inconstitucionalidad), it was already stated in subsection a.) above of this test that the means they employ to achieve that regulatory purpose are, on the one hand (-Article 12-), to prohibit the appointment of persons as judicial officers if they have been judicially declared insolvent; and, on the other (-Article 26 subsection 9.), to order termination of appointment on that same ground, namely, having been judicially declared insolvent. In light of the foregoing, those means must be analyzed in relation to the need to implement the regulation, considering alternatives consistent with the parameters of constitutional law (derecho de la constitución), given the sacrifice that this regulatory need causes or may cause.
It bears noting that the applicability of the regulatory measure and its resulting necessity must be assessed in light of the range of situations that may arise in each specific case, such as whether the person holds a judicial or administrative position. In my case, I have already indicated that I am a judicial officer whose duties and role as Coordinator were detailed above, with more than 23 years of service, during which I have never been disciplined and have maintained an impeccable record (sic), which even led to my receiving, with great honor, the Certificate of Judicial Merit in 2015. Likewise, I emphasize that, in performing my administrative rather than judicial duties, I do not administer, hold in custody, control, dispose of, or safeguard any public funds whatsoever; moreover, I do not serve the public, no resolution of any dispute involving third parties depends on my administrative work, and I neither issue final administrative decisions nor serve the public.
Furthermore, my supervisors are aware—and I offer their testimony as evidence before your Authority because the Tribunal de la Inspección Judicial rejected that evidence—that I perform professional duties in accordance with institutional requirements and in adherence to the ethical and moral values expected and required of a judicial officer. Insolvency arose in my life for the reasons already explained, under circumstances in which there is even a psychological medical opinion certifying that I was being subjected to psychological and/or emotional abuse, as well as economic abuse, because it involved systematic abuse with a gender-related dimension, constituting a genuine and excusable cause that ultimately compelled me to decide to seek a judicial declaration of insolvency. In the administrative proceeding (procedimiento administrativo) conducted by the Tribunal de la Inspección Judicial, no assessment, analysis, or determination is made as to whether termination of appointment should be applied because of a regulatory need based on proven facts involving loss of trust or some other circumstance.
This means that it is based on an alleged or apparent effect—at least a minor one—on the prevailing public service and that, under the principle of causation (principio de causalidad), this effect supposedly results from my judicial declaration of insolvency. Instead, the proceeding was initiated by directly and expressly assuming that ground, stating that “[...] I lost the qualification required to be an officer of the Poder Judicial, pursuant to Article 26 subsection 9 of the Ley Orgánica del Poder Judicial [...]” as the central and sole element of the charges served on me, without determining whether a serious or extremely serious offense affecting the judicial public service had occurred as a result of the insolvency. The only alternative sanction would entail the most severe exercise of disciplinary authority (potestad disciplinaria), namely, termination of appointment, based merely on a risk or supposed danger or on a possible institutional expediency that has no causal, objective, or actual basis or foundation in relation to the public service, the image and institutional integrity of the Poder Judicial, or any third party.
This is especially so where it creates a high degree of discrimination based on my economic circumstances through a regulatory provision that is apparently neutral but liable to impose a severe particular disadvantage without a reasonable and legitimate objective or justification under binding national and international human-rights law. In other words, it has not been established—under any circumstance or criterion—that retaining a person who has been judicially declared insolvent is seriously detrimental to the judicial service, such that the regulatory need could result only in that termination of appointment. I emphasize again that, at the labor-court level, as illustrated by expediente [Valor 011], the judge with jurisdiction over the case granted preliminary protective measures (medidas cautelares anticipadas), reasoning that the Poder Judicial, through the Court, has established “the standard for imposing discipline.
If the justices have been treated with a gentle hand, a more humble judicial employee does not deserve a heavy hand [...] if the conduct of the senior judges, known throughout the country and affecting the image of the judiciary, did not warrant revocation of appointment, it is unjust to punish the petitioner more severely [...also stating] A new paradigm has been created by the Chinchilla Sandí et al. case, from which a sounder, less repressive disciplinary system emerges, allowing lesser sanctions and reserving revocation of appointment for extremely serious cases [...].” As a fundamental element of this proportionality test, we likewise emphasize what was already mentioned above concerning the recent proceeding [Valor 012], brought against [Nombre 013], who was then an Assistant Prosecutor, on grounds of negligence in the performance of his duties, in which the Tribunal de la Inspección Judicial sanctioned him WITH ONE MONTH WITHOUT PAY, CLASSIFYING THE OFFENSE AS SERIOUS, for assisting the then Fiscal General in processing judicial cases against members of the supreme branches of government.
That conduct became public knowledge and caused the dismissal of the influence-peddling case against former legislators Víctor Morales and Otto Guevara Guth in favor of the importer of Chinese cement, [Nombre 014]. As may be seen, in that case, which affected the institutional integrity and image of the Poder Judicial as well as third parties and was classified as serious because it involved negligent performance of duties, the sanction imposed was a disciplinary measure less severe than termination of appointment. Similarly, for purposes of the proportionality of punitive measures, there is disciplinary case number [Valor 013], heard against [Nombre 015], a Family Court judge at the Tribunales de Goicoechea, discussed above, who was charged with negligence in the performance of her office and failure to perform her duties. Corte Plena found that the administration of justice and its structure could have caused the delays attributed to her, even though negligence in her conduct—and consequently a direct impact on the public—was demonstrated in at least two cases.
The question, then, is: What is the least burdensome disciplinary measure that should apply in the case of a judicial declaration of insolvency where there has been no showing whatsoever of any type of harm or of any serious or extremely serious offense affecting the public service or the image or institutional integrity of the Poder Judicial? Is it proportionate to prevent the appointment of a person and, on the other hand, to terminate the appointments of persons who have been judicially declared insolvent where there has been no showing whatsoever of harm or of any serious or extremely serious offense affecting the public service or the image or institutional integrity of the Poder Judicial? We insist that legal provisions, particularly punitive provisions because of their more burdensome implications, must achieve the intended legal regulation on the basis of recognized constitutional principles and principles established under international conventions.
In light of the foregoing, the application of the provisions challenged as unconstitutional is plainly disproportionate. The punitive means are excessive in relation to the urgent or compelling need purportedly requiring the sacrifice imposed by the provision, especially—as has already been stated and demonstrated—when there is no harm whatsoever to the prevailing public service, the image or institutional integrity of the Poder Judicial, public order, morals, or third parties. In my case, I need my job not only to meet the immediate basic needs of those who depend on me and my own personal needs, but also because the salary I receive is the sole means through which my creditors will be paid, in accordance with the judicial rules governing the insolvency proceeding, which was the very purpose for which I initiated that judicial proceeding. Accordingly, it is evident that the provisions challenged through this action are so disproportionate, and consequently so irrational and discriminatory, that they provide no means by which the person exercising disciplinary authority may, where excusable circumstances exist, have appropriate regulatory options for the various specific cases in which—as in mine—there may be grounds excluding liability (causas eximentes de responsabilidad), instead of imposing the excessive sacrifice of termination of appointment.
Rather, they should allow the least burdensome alternative to be selected, thereby achieving the intended legal regulation without incurring excessive disciplinary sanctions and regulation. I do not disregard—nor do I intend to disregard—my employer’s supervisory and oversight authority. I am therefore willing to have my professional performance as an officer of the Poder Judicial in Public Administration, assigned to the Dirección de Planificación, functionally audited to determine whether my judicial declaration of insolvency has caused or is causally connected to any effect on the judicial service, or whether there is any genuine and objective risk or detriment warranting application of the disciplinary sanction because a serious or extremely serious offense was committed in the performance of my duties in connection with the ground at issue. c.) As the third and final element of the proportionality test to be applied, we find the “Means employed by the legal provision versus the cost-benefit,” that is, proportionality in the strict sense (proporcionalidad en sentido estricto).
In this regard, the sacrifice—as a cost—is weighed against the existence of some benefit or advantage, whether material or otherwise. There must be a benefit, and that alternative must be the least restrictive or least burdensome while also being the most effective. Three matters must be considered: the structure of the provision and how it is weighed, its rationality, and its legitimacy, among which close connections exist. The greater the degree to which one principle is not satisfied or is impaired, the greater the importance of satisfying the other must be. To that end, the legally protected interests (bienes jurídicos) or rights in conflict must be identified in order to determine the relationship between the greater sacrifice and the higher-ranking legally protected interest, and thereby determine whether a relationship or balance exists between them.
In the case before us, it was already mentioned in point a.) above of this test that the means employed by the provisions challenged through this proceeding to achieve that regulatory purpose are, on the one hand (-Article 12-), to prohibit the appointment of persons as judicial employees if they have been judicially declared insolvent and, on the other hand (-Article 26, subsection 9.-), to order the termination of appointment (cese de nombramiento) on that same ground, namely, having been judicially declared insolvent. It must therefore be understood that the provision’s structure is exhaustive and punitive in nature. In light of the foregoing, those means must be analyzed in terms of cost-benefit, with cost understood as the sacrifice entailed by the punitive measure of termination of appointment, weighed against the benefit or advantage obtained by the Judiciary through the imposition of that sacrifice, all, of course, in relation to the purpose pursued by the provision.
We previously stated that the purpose established for those challenged legal provisions is precautionary, based on an issue of trust concerning the management of financial resources and the resolution of disputes submitted for judicial adjudication, all of which is grounded in an understanding of the legislative debate concerning the ground included in the bill that became today’s Ley N" 7333, in which the Joint Legislative Committee that affirmed the retention of those grounds relied on the opinion of Magistrate Luis Paulino Mora, who stated: “[...] Judicial employees must enjoy a certain degree of trust from the public because, ultimately, we are responsible for resolving every kind of dispute [...] when a person has been declared insolvent, there is a certain loss of trust in that person, given that the person has been unable to manage their own financial assets and may eventually be responsible for managing the financial assets of the public […]” (-folios [Valor 040] (images [Valor 064] of bill No 10.753-).
It should again be clarified that this debate arose because the Legislative Committee on Government and Administration issued its report on the scope of that ground of insolvency, stating: “[...] As regards bankrupt and insolvent persons, they have conditions that, if they do not affect the employment relationship with the institution, should under no circumstances be considered grounds for dismissing a judicial employee; allowing this would amount to imposing a penalty based on mere danger […]” [-folio [Valor 082] [image [Valor 065] of bill N° 10.753-). It was also stated that, in my case, the Judiciary has conducted no proceeding whatsoever to assess and analyze, and thereby determine, whether there has been even a slight adverse effect on the prevailing judicial public service, the image or institutional standing of the Judiciary, or whether there has been serious or extremely serious misconduct in the judicial public service and, under the principle of causation (principio de causalidad), whether this resulted from my judicial declaration of insolvency; instead, it simply ordered the initiation of the proceeding conducted by the Tribunal de la Inspección Judicial, directly and expressly assuming that the ground applied and stating that “[...] I lost the status required to serve as an official of the Judiciary, as established in numeral 26, subsection 9, of the Ley Orgánica del Poder Judicial [...]”; this was the central and sole element of the statement of charges served upon me, and the testimonial and technical evidence that I offered for those purposes in my own defense was rejected, that is, so that the termination of appointment could be imposed per se, without demonstrating a need for regulation through proven facts involving a loss of trust or any other circumstance showing harm to the Institution, or the existence of serious or extremely serious misconduct in the judicial public service in connection with the challenged ground.
Why do I mention the foregoing so insistently? Because, where my professional performance in an administrative capacity has caused no adverse effect, not even a slight one, on the judicial service, and where there has not even been an administrative proceeding aimed at establishing such an effect or the existence of serious or extremely serious misconduct arising from that performance, but instead the exhaustive ground for termination of appointment has been directly applied based on mere danger, a possible risk, or mere unfounded expediency, this would mean that the ground, in terms of the public purpose it pursues, provides no real or objective benefit or advantage to the Judiciary, much less that the sacrifice imposed on me by the termination of my appointment is fair or proportionate, particularly because the judicial declaration of insolvency was an action initiated by me in good faith, not only to improve my economic and financial situation, which was caused mainly by the psychological and/or emotional, financial, and gender-based abuse already explained, but also to pay my creditors responsibly under the judicial oversight required by that proceeding.
Without wishing to praise myself, it also means that, because the least restrictive or least burdensome alternative was not considered, the penalty additionally causes the Judiciary to lose a human resource with more than 23 years of experience in judicial service and who, as shown by the evidence requested by the Tribunal de la Inspección Judicial itself from the Dirección de Gestión Humana, has received no disciplinary sanctions during those years of service. We have no objection concerning the legitimacy of the challenged provisions, since it is consistent with legal theory regarding the means by which they were created, namely, by statute and, consequently, by the ordinary legislature. Nevertheless, as the Inter-American Court of Human Rights stated in its Judgment of 24 de febrero de 2011, Gelman v. Uruguay: “[...] The mere existence of a democratic system does not, per se, guarantee permanent respect for international law, including international human rights law, as has even been recognized by the Inter-American Democratic Charter itself.
The democratic legitimacy of certain facts or acts in a society is limited by international standards and obligations for the protection of human rights recognized in treaties such as the American Convention, so that the existence of a genuine democratic system is determined by both its formal and substantive characteristics. Accordingly, particularly in cases involving serious violations of the rules of international human rights law, the protection of human rights constitutes an insurmountable limit on majority rule, that is, on the sphere of matters ‘capable of being decided’ by majorities through democratic institutions, in which ‘conventionality control’ (control de convencionalidad) must also prevail [...], as a function and duty of every public authority and not solely of the Judiciary [...]”. Along the same lines, regarding the legitimacy of domestic law, the Inter-American Court of Human Rights stated in its Judgment of 23 de noviembre de 2009 in Radilla Pacheco v. Mexico: “[...] For this Court, the mere repeal or enactment of provisions in domestic law does not guarantee the rights enshrined in the American Convention in accordance with the obligation set forth in Article 2 of that instrument.
State practices conducive to the effective observance of the rights and freedoms enshrined therein must also be developed. Consequently, the existence of a provision does not in itself guarantee that its application will be appropriate. The application or interpretation of provisions, as judicial practices and manifestations of the State’s public order, must be consistent with the same purpose pursued by Article 2 of the Convention [...]”. At this point, we consider it necessary to mention, for purposes of that Honorable Chamber’s analysis and interpretation, the necessary application of conventionality control, it being understood that when a State has ratified an international treaty such as the American Convention on Human Rights—as Costa Rica has—its judges and public authorities in general are also subject to it, which requires them to ensure that the practical effectiveness of those binding international rules is not nullified through the application of laws contrary to their provisions, object, and purpose.
In this regard, the Inter-American Court of Human Rights itself has stated that the authorities must exercise not only constitutional review (control de constitucionalidad), but also conventionality control ex officio, a function that must not be limited exclusively by the claims or actions of the applicants in each specific case. (…) That Honorable Constitutional Chamber, in its case law and based on the principle of effectiveness (principio de efectividad), has recognized such conventionality control as a binding standard for deciding specific cases in which violations of fundamental human rights, such as those alleged in this action, may be established. In this regard, it has stated: “[...] The international-law principle of effet utile requires the State, in interpreting and applying human-rights treaties and treaties that are not self-executing (non-self executing), to encourage all bodies of the State apparatus to produce lasting effects in the domestic legal order consistent with the international obligations undertaken, so that all necessary measures must be adopted as a whole to ensure that the terms of an international agreement have effects that are in harmony with domestic law.
This is followed by mechanisms for cooperation among States and international organizations and for monitoring the compatibility of domestic legislation with international conventions.” (-Voto No [Valor 099]) For the application of such conventionality control, it is useful to mention the cases decided by the Inter-American Court of Human Rights known as Canese v. Paraguay (31-8-2004), Kimel v. Argentina (2-5-2008), Usón Rramirez (sic) v. Venezuela (20-11-2009), and Fontevecchia and D´Amico v. Argentina (29-11-2011). In deciding each case, that Inter-American Court applied the aforementioned proportionality test (test de proporcionalidad), stating with respect to each of its elements: a.) Regarding the first element of the proportionality test, namely, the “Means employed by the legal provision versus its purpose,” that is, its suitability and effectiveness, it has stated that even if the purpose is appropriate or legitimate in every case (whether involving punishment or civil compensation), this does not mean that the measure in question is suitable, necessary, or proportionate (Usón Ramírez -para. 66-).
It has likewise stated that a measure is suitable if it serves to safeguard the legally protected interest (bien jurídico) sought to be protected, that is, if it is capable of contributing to the achievement of that objective (Kimel -para. 71- and reiterated in Fontevecchia D´Amico -para. 53-). b.) Regarding the second element of the proportionality test, namely, the “Means employed by the legal provision versus the need for regulation,” it has stated, with reference to the necessity requirement, that the measure must respond to a compelling public interest, that the restriction must interfere to the least possible extent, and that it must not impose limitations beyond what is strictly necessary (Canese -para. 96-, Kimel -para. 76-, Usón Ramírez -para. 48-, and Fontevecchia D´Amico -para. 43-).
Based on the foregoing, it may be conclusively determined that the legal provisions challenged through this proceeding are disproportionate and consequently irrational and discriminatory on the basis of my economic circumstances, thereby violating the fundamental rights I have invoked. I ask this Honorable Chamber to carefully analyze my situation in relation to the challenged statutory provisions, based on the factual and legal grounds asserted in this constitutional challenge.” The following relief is requested: “For the reasons stated and based on the doctrine, criteria, and case law invoked, which adequately support and demonstrate the violation of fundamental rights under Articles 24, 28, 33, 39, 51, and 56 of our Political Constitution—namely, the rights and principles of proportionality and reasonableness of the disciplinary sanction (sanción disciplinaria), due to the absence of a connection between the disciplinary sanction and the sacrifice involved; violation of the right to privacy (derecho de intimidad), human dignity, and the pro homine principle (principio Pro-Homine), due to the absence of a legitimate aim for the disciplinary sanction of termination of appointment (cese de nombramiento), in light of the sacrifice involved and in the absence of any adverse effect on the public service or proof of serious or very serious misconduct; violation of the right concerning culpability and innocence (derecho de culpabilidad e inocencia), due to the absence of any adverse effect on the public service, by sanctioning a potential risk that was neither proven nor assessed and merely on the basis of unjustified convenience; and violation of the right to work (Derecho al Trabajo) as a fundamental human right and, consequently, violation of the right to protection of the family (Derecho a la Protección a la Familia) and legal certainty (Seguridad Jurídica), arising from an act undertaken in the exercise of my freedom of will—I respectfully request that this Constitutional Chamber grant the following relief: i.) Admit this constitutional challenge for legal review and processing against Articles 12 and 26, subsection 9.1, of Ley N° 7333, Ley Orgánica del Poder Judicial, of 05 de mayo de 1993, insofar as the scope of their provisions has been described herein. ii.) Grant this challenge and declare Articles 12 and 26, subsection 9.), of Ley No 7333, Ley Orgánica del Poder Judicial, of 05 de mayo de 1993, unconstitutional insofar as the scope of their provisions has been described herein, specifically as regards the reference to a judicial declaration of insolvency (declaratoria judicial de insolvencia) as grounds for barring appointment as a judicial employee and, in particular, as grounds for termination of appointment in the judicial service, which, through action and omission, is deemed to violate the aforementioned constitutional and treaty-based rules and principles. iii.) Direct the appropriate Judicial Authorities to suspend, as a precautionary measure (medida precautoria)—instrumental and provisional in nature—any administrative act (acto administrativo), as a final act, intended to determine the application against me of the disciplinary grounds for termination of appointment as a judicial employee, as final procedural acts at the appellate stage involving exhaustion of administrative remedies (agotamiento de vía administrativa), until such time as this Authority rules as required by law.
The foregoing is requested as a matter of high priority or urgency, with a view to safeguarding my legal certainty with respect to my legitimate rights and interests and thereby preventing the Superior Council of this Judicial Branch, acting as an administrative body, from issuing a final decision applying the cited provision, thus potentially violating my fundamental rights and causing harm that would be difficult or impossible to remedy, as well as undermining the direct effectiveness of the very principle of constitutional supremacy. The foregoing is supported by Article 41 of the Political Constitution, Article 81 of the Ley de la jurisdicción Constitucional, and the case law that this Authority has issued (sic) in this regard concerning precautionary matters (such as Voto N° [Valor 066] and consistent decisions), which encompasses the right to request and obtain from the judicial body the necessary, suitable, and appropriate interim measures (medidas cautelares) to guarantee the effectiveness of the judgment on the merits, as an essential function of interim relief (tutela cautelar).
The factual and legal scope invoked in this challenge satisfies the requirements for this request, namely the appearance of a valid claim—fumus boni iuris—the danger posed by delay—periculum in mora—and extreme urgency, based on the governing criteria of appropriateness, suitability of the measure, and necessity, all under the constitutional and treaty-based rights invoked in this challenge. iv.) Afford the Procuraduría General de la República the hearing required by law. v.) Publish the notices required by law. vi.) Order the State to pay costs and damages.
Regarding the alleged unconstitutionality of Article 26, subsection 9, of the Ley Orgánica del Poder Judicial. It states that the petitioner (accionante) maintains that this provision violates the principles of reasonableness and proportionality recognized in the Constitución Política, with respect to the disciplinary sanction (sanción disciplinaria), because there is no connection between the disciplinary sanction and the sacrifice it entails; as well as the alleged violation of the Right to Privacy, Human Dignity, and the Pro Homine principle, due to the “absence of a legitimate purpose for the disciplinary sanction of termination of appointment in relation to the sacrifice it entails, without any impairment of the public service or proof of serious or extremely serious misconduct; violation of the right to culpability and innocence due to the absence of any impairment of the public service, by sanctioning a potential risk that has neither been proven nor evaluated, as well as on the basis of mere unjustified expediency; and violation of the Right to Protection of the Family and Legal Certainty as a result of an act undertaken in exercise of freedom of will.” It adds that she believes that “it was warned during the legislative proceedings on the bill in which the cited provision was discussed that allowing such grounds would mean sanctioning a mere danger or simple risk for reasons of mere judicial expediency, an aspect unsupported by evidence when weighed against decisions arising from necessity that involve aspects of her private life.” Regarding the petitioner’s allegations, it explains that a declaration of bankruptcy or insolvency (declaratoria de quiebra o insolvencia) imposes a series of conditions upon the bankrupt person, depending on the case, ranging from disqualification from administering their property or dispossession of property, closure of checking accounts, and loss of legal capacity to incur obligations or enter into contracts, among others; in each case, the declaration results from the debtor’s cessation of payments and is synonymous with failure to comply with a monetary obligation.
It states that the legislature maintained the importance of retaining, as grounds for application of the disciplinary regime (régimen disciplinario) within the Judicial Branch, a situation in which a judicial officer was judicially declared to be in such a condition—Article 26, subsection 9), of the Ley Orgánica del Poder Judicial—and as grounds for ordering that person’s termination from office after the disciplinary proceeding (procedimiento disciplinario) so determined, while at all times respecting the rights of the judicial officer and due process (debido proceso). It argues that, according to the discussion held in legislative bodies when the general reform of the Ley Orgánica del Poder Judicial, introduced by law n.o 7333 of 5 de mayo de 1993, was being analyzed, former Justice Luis Paulino Mora Mora (qdDg) stated that “judicial employees must be protected by a certain degree of public trust because, ultimately, we are responsible for resolving every kind of dispute that exists between the citizenry and the State and within State institutions; that is why it has been considered that, when a person serving there has been declared insolvent, there is a certain loss of trust in that person, given that he has been unable to manage his financial assets…” (expediente 10.753, folio [Valor 076])”.
It states that the foregoing falls within the Judicial Branch’s disciplinary authority (potestad disciplinaria) over its officers, which is necessary as an instrument guaranteeing citizens that they will receive high-quality, prompt, effective, and efficient public service, provided by an appropriate organization and judicial officers who are highly qualified to perform their duties. It explains that the petitioner is incorrect when she asserts that allowing such grounds would mean sanctioning a mere danger or simple risk for reasons of mere judicial expediency, because the provision applies when a declaration of bankruptcy or insolvency is issued in judicial proceedings; in other words, there is an entire judicial proceeding in which matters related to breaches of the credit obligations undertaken by the debtor are discussed and which concludes with that declaration, in addition to the imposition of a series of measures or restrictions so that the person may resolve that situation.
It adds that the legislature considered the foregoing to entail a situation of distrust and sought to ensure the probity of judicial officers so as to have certainty that they are responsible in fulfilling their obligations both at work and in their private lives. It asserts that the imposition of this type of sanction reflects the absolute scope of the principle of legality (principio de legalidad), because it is imposed for engaging in conduct prohibited by a legal provision, which is inconsistent with the petitioner’s allegations that the provision permits a mere danger or simple risk to be sanctioned. It mentions that, as stated by the Tribunal de la Inspección Judicial in vote n.o 1923-18 de las 13:41 horas de 4 de octubre de 2018, a relationship of “special subjection” (sujeción especial) exists between judicial officers and the Judicial Branch, arising from activities that, by their nature, require a certain degree of regulation and oversight, which is carried out by monitoring their conduct both in the performance of their duties and in their private lives.
It partially quotes Article 28 of the Ley Orgánica del Poder Judicial and section 49 of the Estatuto del Servicio Judicial: “Ley Orgánica del Poder Judicial: ARTICLE 28.—An officer may be removed from office, following the established procedure and after being afforded an opportunity to present a defense, if the officer: (…) 2.—Through improprieties or failings in the performance of their office or in their private life that may affect the proper provision of service or the image of the Judicial Branch, has become subject to that sanction. (Emphasis not in the original). Estatuto de Servicio Judicial: Article 49.—In addition to the specific duties established by the Ley Orgánica del Poder Judicial, judicial officers shall have the following duties: c) To conduct themselves with dignity in the performance of their office and in their private lives; (Emphasis not in the original).” It states that the relationship of special subjection has been extensively analyzed by this Constitutional Court and that, in vote n.o [Valor 105] de las 8:30 horas de 10 de abril de 2018, the Court held that observance thereof is a guarantee both of the exercise of an effective defense and of the lawfulness of the sanctioning conduct: “Such sanctioning authority is exercised within the framework of a legal relationship, a relationship of special subjection between the public official and the body of law applicable to this type of relationship, within which we find a series of principles that serve as a kind of guide insofar as they direct the meaning of the rules and that, in sanctioning matters, constitute a twofold guarantee, because observance thereof guarantees the exercise of an effective defense, as well as the lawfulness of the sanctioning conduct.” It argues that Article 153 of the Constitución Política grants the Judicial Branch one of the most important powers of the State, namely the administration of justice, a task that this Branch of the Republic carries out through the activities performed by the persons who work for the institution and collaborate in fulfilling the entrusted duty.
It adds that the peaceful and satisfactory resolution of disputes brought before it by society, in order to maintain social peace, largely depends on the credibility accorded to those who participate in the institutional resolution of such disputes. It considers that the petitioner is incorrect when she states in her initiating pleading that her Right to Privacy, Human Dignity, and the Pro Homine principle have been violated, because subsection 9) of Article 26 of the Organic Law is complemented by Articles 28 and 49 of that legislation, which have constitutional and legal support regarding the duty to conduct themselves properly both in the performance of their judicial duties and in their private lives. It quotes an excerpt from a judgment of the Sala Segunda de la Corte Suprema de Justicia: “Public officials are entrusted with the confidence of the State as employer and of users of the service, and therefore must exhibit impeccable and honest behavior, as well as irreproachable conduct.
Accordingly, in the case of public officers, regardless of their nature, function, and category, their misconduct must be assessed strictly and meticulously, because the public interest is at stake and the worker’s interest must yield to it (regarding the greater rigor with which misconduct by public officers is classified, see, among others, votes number [Valor 106] de las 10:30 horas del 26 de octubre de 2001, [Valor 107] de las 9:30 horas del 22 de mayo de 2002 of this Chamber). Officers of the State are required to exercise a special duty of diligence in all matters related to the work they perform—after all, they are responsible for ensuring that their function is performed in accordance with criteria of objectivity, impartiality, efficiency, and professionalism, among others—and therefore the trust placed in them takes on particular significance when analyzing the misconduct attributed to them, especially if such misconduct is related to their specifically assigned tasks or may affect them (in this regard, see, among others, votes number [Valor 067] de las 10:30 horas del 30 de noviembre, [Valor 068] de las 9:30 horas del 5 de diciembre, both of 2001, of this Chamber). c) The foregoing is of vital importance in the present case, as we are dealing with a public official who must possess the personal qualities necessary to work in the public service of Justice and be deserving of the trust placed in him—moral fitness and suitability, among other requirements established in section 18 of the Estatuto de Servicio Judicial—.” It partially transcribes judgment n.o [Valor 069] de las 15:00 horas de 3 de noviembre de 2004 of this Chamber, which elaborated upon the duties of every public official: “(…) to devote oneself to the office efficiently and loyally, which entails the duty of attendance and loyalty to the institution; to observe the hierarchical order, which translates into a duty of obedience (to comply with the directives and orders of the superior under the terms of Article 102 of the Ley General de la Administración Pública); and dignity of conduct, relating both to respect for the legal system and to civility and morality in one’s conduct, both during working hours and in one’s private life, because the status of official is of fundamental importance since, as its definition indicates, the official acts in the name and on behalf of the Administration and, consequently, becomes its image.
Hence the importance of the requirements of ‘honorability’ and ‘respectability,’ which are required as a direct consequence of the constitutional provision—Article 192—of all public officials, insofar as it concerns the requirement of ‘proven suitability,’ because they are called upon to fulfill the public purposes entrusted to the State. The Chamber ruled to this effect in judgments number [Valor 070] and [Valor 071], both del siete de marzo de 1995.
“ The duties of public officials derive, like their rights, from the law and from the nature of the office or function they perform; that is, they are objective in nature.” (Emphasis not in the original).” It states that, through the challenged provision, the legislature delimited the sanctioning authority (potestad sancionatoria) of the Poder Judicial with respect to public officials who “have been judicially declared bankrupt or insolvent (en estado de quiebra o insolvencia),” because, once they have established an employment relationship with the institution, they must respect their relationship with the administration and fulfill a series of obligations, including honoring their debts. It adds that the foregoing must prevent, as the Tribunal de la Inspección Judicial aptly explains in vote n.o [Valor 018], the recovery of sums of money from becoming slower for creditors, “since they receive a smaller sum of money than the installment agreed upon at the beginning of the credit relationship,” in addition to the suspension of interest collection, among other consequences of such a declaration.
It argues that the purpose of disciplinary authority (poder disciplinario) is to issue rules governing the administration’s activities with its public officials so that the duties entrusted to the Public Administration may be fulfilled; this is grounded in the constitutional pillars that impose upon the State the obligation to provide proper public service, as embodied in Article 192 of the Political Constitution. It maintains that, in Article 26, subsection 9), the legislature established a reasonable ground for terminating the appointment (cese de nombramiento) of a judicial employee, which was extensively discussed and analyzed by the Comisión Permanente de Gobierno y Administración of the Asamblea Legislativa. It explains: “There is therefore no doubt that, during the discussion of the reform of the Ley Orgánica del Poder Judicial, the legislature considered it necessary to have an entire regulatory and administrative apparatus serving as an oversight mechanism for the work of judicial officials, through which the State’s disciplinary authority could be exercised.
This authority rests on the constitutionally recognized Principle of Hierarchy (Principio de Jerarquía) (judgments No. [Valor 072] at 15:36 on 7 de marzo de 1995 and [Valor 073], at 14:41 on 16 de marzo de 2005), and on the ‘special-subjection relationship’ (relación de ‘sujeción especial’) arising between judicial employees and the Poder Judicial, through the establishment of strategies for the efficient provision of justice services and the application of the disciplinary regime (régimen disciplinario) when the provisions contained in the Ley Orgánica del Poder Judicial are breached. With complete and absolute precision regarding the foregoing, Article 174 provides: ‘The purpose of the disciplinary regime is to ensure the efficiency, propriety, and decorum of the functions entrusted to the Poder Judicial and to guarantee citizens the proper administration of justice.’” It states that, to prevent this principle from being rendered ineffective, the legislature included the circumstance described in subsection 9) of Article 26 of the aforementioned law as one of the grounds for terminating an appointment and that, accordingly, it is not contrary to Articles 24, 28, 33, 39, 51, and 56 of our Political Constitution, nor to the principles of Proportionality and Reasonableness.
It explains that the administrative authority (autoridad administrativa), consequently, must have a degree of discretion (discrecionalidad) previously granted by the legislature to ensure that the adverse consequence is applied only when it is reasonable and proportionate to the underlying cause. It argues that the application of the principles of reasonableness and proportionality (principios de razonabilidad y proporcionalidad) calls the constitutionality of the challenged provisions into question. It comments that an analysis of the cited provisions shows that the statutory provision allows neither any gradation nor consideration of particular circumstances in individual cases, since the only possible consequence of a declaration of bankruptcy or insolvency (quiebra o insolvencia) is termination of the appointment (cese del nombramiento) or disqualification from entering the Poder Judicial, regardless of the official concerned.
It adds that the provision applies generally to all positions within the Poder Judicial, without considering the nature of their duties or the specialized work performed by certain officials. It asserts that, given the nature of certain positions involving the handling of public funds or the administration of justice, the imposition of certain personal traits and standards of conduct may be justified, since these may affect the public image or independence of such public servants in the performance of their duties. It states that the legislative record (expediente legislativo) shows that the intention behind the challenged provision was always to declare a “loss of trust” in a judicial official “who has been unable to manage his or her financial assets and may eventually be entrusted with managing the financial assets of the public” (see statements by Magistrado Luis Paulino Mora at folios [Valor 075] and [Valor 076] of the legislative record).
It mentions that the intention was to direct the provision at officials who administered justice or who, because of the nature of their positions, should be required to manage their personal assets appropriately. It indicates that, notwithstanding the foregoing, the provision as enacted does not reflect that intention; on the contrary, it was enacted to apply generally to all judicial officials and, because it allows neither distinctions nor an assessment of specific circumstances, it becomes unreasonable. It considers that the provision’s inflexible wording violates the principle of reasonableness and proportionality because it affords no discretion to the legal decision-maker (operador jurídico), who is compelled to apply the legal consequence—termination of the appointment—even to judicial positions that are not material to the objective pursued. It notes that, although the issue described might be regarded as one concerning the application of the provision rather than its constitutionality, the fact remains that the Inspección Judicial had no alternative but to remove the petitioner from her position, since the provision afforded it no other option.
It insists that, in this particular case, there was no infringement of a legally protected interest (bien jurídico); therefore, the reasonableness of the provision—its necessity—could be justified only by the special nature of certain positions within the Poder Judicial that require the imposition of particular standards of personal conduct on those who hold them, because such conduct may potentially affect their independence, objectivity, or manner of deciding particular matters. It observes that the imposed requirement should be a condition applicable to a judicial employee in light of a specific function, but that its general application, as the provision is worded, is disproportionate, particularly because it seriously impairs the right to work (derecho al trabajo). It cites decision (voto) of this Sala n.o [Valor 077]: “Thus, the Sala has recognized that an act restricting rights is reasonable when it satisfies three conditions: it must be necessary, suitable, and proportionate.
The necessity of a measure refers directly to the existence of a factual basis requiring the protection of some interest, or set of interests, belonging to the community—or to a particular group—through the adoption of a differentiating measure. In other words, if that action is not taken, important public interests will be harmed. If the restriction is not necessary, it cannot be considered reasonable and, therefore, constitutionally valid. Suitability, in turn, entails an assessment of whether the type of restriction to be adopted does or does not fulfill the purpose of meeting the identified need. An assessment of the measure’s suitability would indicate whether other mechanisms might better address the existing need, some of which might achieve the proposed objective without restricting the enjoyment of the right at issue. Proportionality, meanwhile, requires a necessary comparison between the objective pursued by the act and the type of restriction imposed or sought to be imposed, so that the restriction is not markedly greater than the benefit it is intended to secure for the community.” It adds that decisions n.os [Valor 109] and [Valor 110] were issued to similar effect.
It explains that, in the opinion of that advisory body, the provisions of subsection 9 of section 26 of the Ley Orgánica del Poder Judicial, as applied to the petitioner, are contrary to the principles of reasonableness and proportionality because of their inflexible wording. It adds that the provision’s necessity is not justified with respect to all judicial officials, nor is the legal decision-maker afforded any discretion in applying it. It considers that the provision should be annulled. It mentions judgment (sentencia) n.o [Valor 078] of 11:57 hours on 15 de octubre de 1999, reproduced in ruling (resolución) n.o [Valor 079] of 14:47 hours on 4 de octubre de [Valor 027]. It states that, if the existence of the provision were considered justified in light of certain functions, it could be construed in conformity with the Law of the Constitution (Derecho de la Constitución) to provide that the provision is justified and should apply only to positions held by officials who administer justice or public funds; however, doing so in this case would encroach upon the legislature’s domain.
It explains that, considering the claims raised by the petitioner, it is not for the Sala, in proceedings on the constitutional challenge (acción), to assess the alleged deficiencies in the processing of the case file by the Inspección Judicial or the manner in which that body has applied sanctions in other cases. It states that many of the petitioner’s arguments concern the application of the provision rather than its constitutionality and that, for this reason, they refrain from addressing them. It concludes as follows: “In view of the foregoing considerations, this advisory body finds that the petitioner has standing (legitimación) only in part, solely insofar as she challenges the provisions of section 26, subsection 9), of the Ley Orgánica del Poder Judicial, since that is the provision applied in the underlying matter. As to the merits (fondo), this office considers the provisions of that section unconstitutional because of the rigidity of their wording, as they afford the legal decision-maker no discretion in their application and their necessity has not been demonstrated with respect to judicial officials generally (principle of reasonableness and proportionality).
Accordingly, it is recommended that the provisions of the aforementioned section 26, subsection 9), be annulled, without prejudice to the Sala determining that the provision must be construed in conformity with the Law of the Constitution in the terms indicated. As for section 12 of the Ley Orgánica del Poder Judicial, that provision is not applicable to the petitioner, without prejudice to the Sala deciding to assess it on the basis of relatedness (conexidad).”
Opinion authored by Justice Rueda Leal; and, Whereas (Considerando):
I.Subject matter of the action. Ms. [Nombre 001] files an action of unconstitutionality (acción de inconstitucionalidad) against Article 12 and subsection 9 of Article 26, both of the Ley Orgánica del Poder Judicial, No. 7333 of 5 de mayo de 1993, on the ground that they are contrary to Articles 28, 39, and 56 of the Constitución Política, as well as to the principles of reasonableness and proportionality. In general terms, she considers that the challenged provisions infringe the right to work, the right to protection of the family, and the right to legal certainty (seguridad jurídica); additionally, the principles of culpability and innocence, because the maximum penalty—revocation of appointment (revocatoria del nombramiento)—is imposed even though no harm to public service or third parties has been demonstrated; and, finally, the principles of reasonableness and proportionality of the penalty, because the provisions not only have broad scope but also establish an objective criterion that precludes any assessment regarding the appropriateness of the penalty and the type of penalty to be applied.
“Article 12.- Without prejudice to the other requirements imposed by law, admission to judicial service requires that a person be mentally and physically fit to perform the duties, according to their nature.
However, no person against whom a final order committing the case for trial (auto firme de apertura a juicio) has been entered may be appointed; nor may persons convicted of an offense and sentenced to imprisonment; persons subject to disqualification from holding public positions or offices (inhabilitación para el desempeño de cargos u oficios públicos); persons judicially declared bankrupt or insolvent; persons who habitually consume alcoholic beverages excessively, use unauthorized drugs, or have serious behavioral disorders, where such circumstances may impair the continuity and efficiency of the service.
(As amended by Article 1 of Ley N° 7728 of 15 de diciembre de 1997)” “Article 26.- Subject to the conditions and procedures established by this Law, the service of persons holding judicial positions shall cease for:
(…)
III.Admissibility of the action. An action of unconstitutionality is a proceeding subject to certain formal requirements, which must be satisfied for the Chamber to validly adjudicate the merits of the challenge. Article 75 of the Ley de la Jurisdicción Constitucional establishes the admissibility requirements (presupuestos de admisibilidad) for an action of unconstitutionality. First, there must be a prior pending matter (asunto previo pendiente de resolver), whether in judicial or administrative proceedings—in the procedure for exhausting the latter—in which unconstitutionality has been invoked as a reasonable means of protecting the right or interest alleged to have been infringed. In its second and third paragraphs, the law exceptionally provides for circumstances in which no prior matter is required, such as the absence of individual and direct injury due to the nature of the matter, the defense of diffuse or collective interests (intereses difusos o colectivos), or when the action is filed directly by the Contralor General de la República, the Procurador General de la República, the Fiscal General de la República, or the Defensor de los Habitantes.
As to the need for a prior pending matter in administrative proceedings, it must concern the procedure that exhausts administrative remedies (agota la vía administrativa), which, pursuant to Article 126 of the Ley General de la Administración Pública, begins when ordinary appeals (recursos ordinarios) are filed with the hierarchical superior of the body that issued the final act; otherwise, the action would be inadmissible. Other formal requirements must also be satisfied, namely, explicit identification of the challenged provision, duly supported by reasons and specifically citing the constitutional rules and principles alleged to have been infringed; authentication by an attorney of the pleading filing the action; proof of standing requirements (condiciones de legitimación), including powers of attorney and certifications; and a verbatim certification of the pleading in which the unconstitutionality of the provisions was invoked in the underlying matter. If the petitioner fails to provide any of these requirements, the President of the Chamber may order her to cure the deficiency.
In the case under examination (sub examine), the petitioner states that expediente No. [Valor 001] is the prior matter supporting this action of unconstitutionality against Article 12 and subsection 9 of Article 26, both of the Ley Orgánica del Poder Judicial. In that regard, she states that it is at the stage of exhausting administrative remedies before the Consejo Superior del Poder Judicial and was heard at first instance by the Tribunal de la Inspección Judicial, which, by decision No. [Valor 018] of 4 de octubre de 2018, ordered the revocation of her appointment because she had been judicially declared insolvent.
In this connection, it is important to clarify that the administrative proceeding is indeed at the stage of exhausting administrative remedies; however, the decision of the Tribunal de la Inspección Judicial was based solely on subsection 9 of Article 26 of the Ley Orgánica del Poder Judicial. Likewise, a review of the appeal filed (recurso de apelación) shows that the petitioner invoked and developed her constitutional challenge only as to that provision.
Consequently, the action is admitted with respect to subsection 9 of Article 26 of the Ley Orgánica del Poder Judicial, because invoking unconstitutionality in the prior matter constitutes a reasonable means of protecting the rights alleged to have been infringed. The action is otherwise declared inadmissible with respect to Article 12 of the same body of law, since that provision was not applied to the protected party in the proceeding, much less was its unconstitutionality alleged in the administrative proceedings.
IV.The alleged unconstitutionality of subsection 9 of Article 26 of the Ley Orgánica del Poder Judicial, No. 7333 of 5 de mayo de 1993.
a)- The petitioner’s arguments relating to her specific case. In this regard, it is important to note that the numerous arguments presented by the petitioner concerning the merits of the decision in the disciplinary proceeding, as well as deficiencies in its processing, the exclusion of evidence, the circumstances that caused her insolvency, and the manner in which other proceedings have been decided, are not matters properly subject to review in this action, because they concern the application of the provision to her specific case. Accordingly, the Chamber will address only the constitutional arguments, without examining the particular circumstances described, without prejudice to whatever may be decided in ordinary proceedings (vía común) in light of the content of this judgment.
b)-Regarding the arguments of unconstitutionality raised by the petitioner (accionante). In the matter under examination, the petitioner considers it contrary to constitutional law to establish a judicial declaration of insolvency (declaratoria judicial de insolvencia) as grounds for termination of duties without allowing any margin of discretion or assessment, even of excusable circumstances that gave rise to that condition, and, above all, without weighing any factors or the “principles of congruence, proportionality, causal reasonableness, legitimate purpose, good faith, family necessity, privacy, assessment of a duly established loss of objective trust in relation to the duties I perform, the existence of actual harm to the image or institutional integrity of the Judiciary, or the existence of serious misconduct, much less extremely serious misconduct, in the judicial public service, gender considerations, among others, all of this in relation to whether or not the continuity and efficiency of the judicial service have been affected, as is assessed and defined for other grounds in those same articles (…)”.
She states that the analysis and investigation of the contents of the bill at issue yielded the following matters of importance to this constitutional challenge (acción de inconstitucionalidad): “(…) ü At folios [Valor 027], [Valor 028], [Valor 029] (images [Valor 030], [Valor 031], [Valor 032]), motion No [Valor 035], introduced by Deputy Ovidio Pacheco, is shown; it sought to amend the wording of article 26, subsection 9.), and, insofar as relevant, provided, among other things, for expressly including ‘those judicially declared bankrupt and insolvent’ as grounds for termination of appointment, wording that was ultimately approved and remains in force as of this date; ü At folios [Valor 033] (image [Valor 034]), the legislative joint committee considered the aforementioned motion N° [Valor 035] and discussed its contents. For these purposes, the legislative record shows that Deputy Ovidio Pacheco made no reference whatsoever to any substantive reason, purpose, or basis justifying the express inclusion of the grounds that are the subject of this action; rather, his justification concerned merely a matter of form, so that no reference would be made to article 12.
That formal matter was viewed favorably on the ground that ‘the motion seeks to clarify, at least, the actual grounds on which a judicial officer may be removed.’ It bears repeating that, for purposes of that motion, the record contains no suitable substantive reason, purpose, or basis justifying the express inclusion of the grounds for termination that are the subject of this action. ü At folios [Valor 036] (image [Valor 037]), the legislative discussion concerning disciplinary grounds appears, expressly referring to those grounds on which the service relationship may be terminated for disciplinary reasons and emphasizing the public-service interest inherent in judicial functions. Accordingly, the officer’s continued service takes precedence unless it is ‘seriously detrimental to the judicial service,’ or unless, for that reason, ‘there are doubts regarding the officer’s propriety.’ ü At folio [Valor 080] (image [Valor 081]), the grounds that are the subject of this constitutional challenge, set forth in article 26, subsection 9.), had already been added as substitute text. ü At folio [Valor 082] (image [Valor 065]), particular emphasis must be placed on the opinion issued by the Legislative Committee on Government and Administration, in which it expressly requested that the grounds of insolvency and bankruptcy contained in the aforementioned article 26, subsection 9.) be removed.
The legislators provided the following justification and explanation: ‘As regards bankrupt and insolvent persons, they have conditions that, if they do not affect the employment relationship with the institution, should under no circumstances be treated as grounds for removing a judicial employee; allowing this would amount to imposing a sanction based on mere danger.’ (-the underlining and bold type do not appear in the original and are included solely to highlight its content as a matter of importance to this constitutional challenge). ü At folio [Valor 038] (image [Valor 039]), a legislative discussion concerning the scope of the disciplinary regime appears, highlighting the view of Deputy Allan Solano, who, with reference to insolvency and bankruptcy as grounds for termination of appointment, criticized making ‘a sanction based on mere convenience or risk’ and matters concerning ‘private life’ into grounds for termination. ü At folios [Valor 040] (image [Valor 041]), the discussion between Deputy Santana Esquivel and Justice Luis Paulino Mora, as members of the Legislative Joint Subcommittee, appears; in it, they analyze the appropriateness of the opinion issued by the Legislative Committee on Government and Administration concerning the repeatedly referenced grounds in article 26, subsection 9.), in order to decide conclusively whether to retain or amend those grounds.
For these purposes, it is highly relevant to quote verbatim what they stated in that regard, as follows: ‘JUSTICE LUIS PAULINO MORA: [...] Judicial employees must be protected by a certain degree of public trust because, ultimately, we are responsible for resolving every kind of dispute that exists between citizens and the State and among State institutions. It has therefore been considered that, when a person serving there has been declared insolvent, there is a certain loss of trust in that person, given that the person has been unable to manage his or her financial assets and may eventually be responsible for managing citizens’ financial assets; that is why provisions of this kind are traditionally found. That is the only observation I could make regarding the decision whether to eliminate it or retain it; my recommendation is to retain the rule that persons in a state of bankruptcy or insolvency may not serve as judicial officers.
DEPUTY SANTANA ESQUIVEL: Let us continue, then. We will retain this article as it stands [...]’. (-the underlining does not appear in the original and is included solely to highlight its content as a matter of importance to this constitutional challenge-)”. She adds that the justification offered by Justice Luis Paulino Mora was the reason the legislature decided to retain the grounds for termination stated in article 26, subsection 9), which focus on the following matters: “a.) In referring to the ‘resolution of disputes,’ he justifies only the Judiciary’s adjudicative work and omits—and consequently the legislature did not assess—the administrative judicial service relationship, such as my judicial work as Unit Coordinator; b.) He indicates the existence of ‘a certain loss of trust’ arising from a judicial officer’s being declared insolvent; in other words, he would punish such conduct by terminating the appointment in the judicial service, even though his assessment does not effectively, objectively, causally, directly, intrinsically, proportionately, or reasonably establish the existence of a reason that seriously harms the institution’s service functions or its standing among citizens, all of which must be established in relation to the duties I perform, irrespective of my state of insolvency.
It bears repeating that the matter must be assessed not only in relation to adjudicative work, but also in relation to what concerns me personally, namely, my performance of administrative work. He further states that the person ‘may eventually have financial resources at his or her disposal,’ once again revealing reasoning that is empty and lacks any technical, actual, truthful, suitable, or causal basis in relation to serious harm to the institution’s service functions, since not all judicial employees in an administrative judicial service relationship fall within that scenario.” She states that, according to the legislative record for bill n.o 10.753, it may be concluded with complete certainty that the inclusion of insolvency as grounds for declaring the termination of an appointment in the judicial service is unjustified and unfounded, particularly because it is inconsistent with the overall body of disciplinary rules established by law n.o 7333, which requires proof, following due process (debido proceso), of “serious harm to the judicial service, as well as the existence of serious misconduct, much less extremely serious misconduct, in the judicial public service, as a fundamental element for the punitive application of the challenged grounds.” She adds that, as was noted during the legislative proceedings, allowing those grounds means imposing a sanction for a mere danger or simple risk, based on considerations of mere judicial convenience, without proof in relation to decisions prompted by necessity that involve aspects of private life having no effect on the judicial service.
She argues that the wording of the provision entails its automatic application as a matter of law, without considering other relevant aspects of the service relationship. She asserts that insolvency is a legal mechanism established in civil law for the payment of creditors. She states that judicial proceedings for a declaration of insolvency should not be viewed negatively without assessing the reasons that gave rise to them and without also considering whether any conduct classified as fraudulent occurred. She asserts that subsection 9 of section 26 of the Ley Orgánica del Poder Judicial is unconstitutional for the following reasons: i) “Violation of the Right to Work as a fundamental human right and, consequently, violation of the Right to Protection of the Family and Legal Certainty, as a result of an act undertaken in the exercise of my freedom of choice. This constitutes employment discrimination based on economic status.” She states that: “the grounds consisting of a judicial declaration of insolvency are configured (…) as grounds for termination of appointment (article 26, subsection 9. of Ley N° 7333-), affecting that special protection of the right to work because, as demonstrated by the analysis of the bill that became that Ley Orgánica del Poder Judicial, they were incorporated into that body of law without addressing or providing for the causal relationship between circumstances that may surround such a judicial declaration of insolvency and the effective public service provided by the Judiciary, both in its adjudicative and administrative capacities; nor do they provide for any condition or assessment governing the application of those statutory grounds, which, when article 26, subsection 9. of that law is applied, in themselves result in termination of appointment as the most severe disciplinary measure, even when there is no damage, harm, or adverse effect on the service, the image, or the institutional integrity of the Judiciary, much less on society, and even when no serious misconduct, much less extremely serious misconduct, in the judicial public service has been established in connection with the declaration of insolvency.
(…)
Additionally, the proposed sanction seriously violates an elementary principle of labor law that applies on a supplementary basis to the public employment relationship, namely the protective principle (principio protector), and consequently the application of the in dubio pro operario rule, which will later be associated with the violation of the presumption of innocence (principio de inocencia) to which I am entitled. Accordingly, the revocation of appointment (revocatoria de nombramiento) imposed on me on the stated ground should have been the ultima ratio, with the most favorable sanction for the worker being selected pursuant to the principles governing constitutional law and the review of conformity with international conventions (control de convencionalidad), particularly in view of a sanction that is manifestly and flagrantly contrary to the legal system. As is well known, this rule also applies when interpreting the facts or, put another way, when weighing the evidence, with a view to securing the most beneficial condition and continuity of the service relationship.” He asserts that the institution of insolvency (insolvencia) is not a sanction, offense, or crime unless it is declared fraudulent.
He states that, based on the wording of subsection 9) of Article 26, the Judicial Inspection Tribunal does not require any type of harm or injury to a third party—in this case, the Judiciary as employer—but instead applies the provision’s literal wording as a matter of law. He adds that this rule imposes the most severe measure as punishment for an anticipated or potential risk or danger, which in his case is nonexistent. He states that: “it is evident that the warning issued by the Legislative Committee on Government and Administration, which reviewed Bill No 10.753, has become a reality, as it warned that a mere danger or potential risk would be punished without even a genuine, direct, objective, or causal assessment reflecting any deterioration of, adverse effect on, or harm to the administrative service provided by the Judiciary. At this point, I emphasize what was stated in the record of Bill 10.753, specifically at folio [Valor 025] (image [Valor 026]), where, during the legislative debate on the various grounds set forth in the cited articles, it was stressed that their concern was the service and administration of justice and where, with reference to insolvency, it was stated that the basic purpose of the grounds must be understood so that it would be absolutely clear that they apply insofar as those circumstances ‘affect the public service’.” He indicates that: “Just as Article 56 of our Political Constitution establishes a protective limitation on the State with respect to the right to work, the Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly, recognizes, among other rights, every individual’s right to a dignified life, the right to work, and protection against unemployment, all without discrimination of any kind, including on grounds of economic status or position, as in my case.
Similarly, Convention III and Recommendation III adopted by the International Labour Organization, of which Costa Rica is a member, concerning discrimination in employment and occupation, prohibit situations within both State bodies and private enterprises that entail discrimination to the detriment of the sacred rights that, by nature and humanity, are the heritage of every individual. From all this arose Law No 2694, dated 22 de noviembre de 1960, namely the International Labour Organization Convention concerning the prohibition of discrimination in employment, which remains in force and prohibits ‘[...] every form of discrimination determined by distinctions, exclusions, or preferences based on considerations of race, color, sex, age, religion, marital status, political opinion, national ancestry, social origin, affiliation, or economic status that limits equality of opportunity or treatment in employment or occupation.’ In this regard, it should be noted that this prohibition under the review of conformity with international conventions has only one exception, namely that defined in Article 2 of Law No 2694 itself, which provides: ‘The foregoing prohibition shall not apply to distinctions, exclusions, or preferences arising from the qualifications required for the proper performance of the functions or duties inherent in the type of position or employment, exclusively in accordance with the nature thereof and the worker’s circumstances.’ With respect to the foregoing, it has been demonstrated that, in my case, discrimination is specifically manifested through the exhaustively enumerated ground (causal taxativa) that results in termination of appointment (cese de nombramiento) merely as a matter of convenience, because of a mere danger, or due to a potential risk, without any effective, genuine, objective, or causal assessment of the administrative service under my responsibility in connection with my judicial declaration of insolvency (declaratoria judicial de insolvencia).” He concludes that the impairment of his fundamental rights to protection of employment, family, and legal certainty (seguridad jurídica), constituting discrimination on the basis of his economic status, remains evident. ii) “Violation of the rights arising from the principles of culpability and innocence because there was no adverse effect on the public service or third parties, nor was any serious offense—much less a very serious offense—against the judicial public service established through the proper application of due process (debido proceso).
An act of good faith is punished through the extraordinary sacrifice of termination of appointment because of a potential risk that was neither proven nor assessed, and because of mere or apparent institutional convenience that is unfounded and unjustified.” He argues that the provisions challenged in this constitutional action (acción de inconstitucionalidad) flagrantly violate the essential content of Article 39 of our Constitution and the principles comprising Constitutional Law, because they seek to treat a judicial declaration of insolvency as grounds for preventing an appointment to the judicial service and for terminating an official, without any further assessment or proof of genuine, causal, and objective harm or injury to the institutional integrity of the Judiciary. He adds that this ground is applied based on considerations of mere unjustified convenience and potential risk, without any showing that there is even a slight, moderate, or serious detriment to the service provided by the Judiciary, specifically by the Planning Directorate.
He maintains that the disciplinary application of this ground does not consider whether the work is adjudicative or administrative, nor does it assess or apply criteria demonstrating the existence of any adverse effect on the public service provided by the Judiciary. He insists that insolvency, unless declared fraudulent, is not a crime resulting in disqualification from public office, nor is it a sanction that should result in termination of appointments. He argues that the challenged provisions contravene the constitutional parameters and principles identified above, as well as “the principle of congruence (principio de congruencia), which is required by the very parameters of legal certainty and due process.” He states that the challenged provisions appear to punish the existence of a “loss of trust” resulting from the judicial declaration of insolvency; nevertheless, an objective loss of trust exists when the good faith, performance, and loyalty that the employee owes the employer are compared in such a manner as to substantiate and demonstrate—congruently and proportionately—that the employee’s conduct creates a genuinely and imminently harmful contrast leading to the conclusion that continuation of the employment relationship is impossible.
He contends that if the judicial declaration of insolvency is intended to substantiate a “loss of trust” on the part of the Judiciary, resulting in termination of appointment, then, because this is a disciplinary sanction, the legal provision must establish in its content the constitutional standard of serious, causal, reasonable, and objective culpability by the official in relation to the service and the public interest, in such a way as to establish a genuine impossibility of continuing the employment or, alternatively, to excuse the judicial employee due to a “failure to demonstrate those circumstances that render him unable to perform the public position.” iii) “Violation of the Right to Privacy, Human Dignity, and the Pro Homine Principle. Absence of a legitimate purpose for the disciplinary sanction of termination of appointment in view of the extraordinary sacrifice entailed by that disciplinary sanction, where there is no adverse effect on the public service, the institutional integrity, or the reputation of the Judiciary, nor any demonstration of a serious offense—much less a very serious offense—against the judicial public service as a result of insolvency.” He states that the rights to privacy and human dignity in relation to discrimination have been developed by this Chamber and by international human-rights rules and case law.
He indicates that these rights are treated as forms of protection for the individual. He reiterates the argument concerning Article 28 of the Political Constitution and the lack of harm to the Judiciary. He considers that the declaration of insolvency contemplated in the challenged articles, which results in termination of appointment, does not serve a legitimate punitive purpose, thereby adversely affecting the fundamental rights to privacy and human dignity and also producing a high degree of discrimination based on economic status. He explains that, through this constitutional action, he does not seek to deny the Judiciary’s authority and powers of direction, oversight, and discipline with respect to its administrative service relationship; nevertheless, his fundamental rights must be respected, because objective and reasonable grounds for imposing a sanction must be established, together with actual proof of a serious or very serious offense, an adverse effect on the judicial service, institutional reputation, or the public interest, rather than mere suspicion, mere convenience, or a potential risk; that is, a ground lacking technical and legal substance that unlawfully punishes his years of service in the Judiciary, with consequences for his privacy and dignity, because he would be treated as though he had committed a criminal act or a serious or very serious violation.
He states that “the legislative intent reflected in the record of Bill 10.753, where, during the legislative debate on the various grounds set forth in the cited articles, it was stressed that their concern was the service and administration of justice and where, with reference to insolvency, it was stated that the basic purpose of the grounds must be understood so that it would be absolutely clear that they apply insofar as those circumstances ‘affect the public service,’ (…).” He maintains that, in relation to the rights to privacy and human dignity and the application of the pro homine principle (principio pro homine), the challenged provisions must be applied in the manner most favorable to the human person. He explains that all restrictive and punitive measures, as well as measures terminating appointments, must safeguard human dignity, protection of privacy, and the principle of proportionality (principio de proporcionalidad), all under the pro homine principle, so that the magnitude of the potential or possible harm is assessed. He asserts that the Judiciary adopted the “Gender Equality Policy” to incorporate a gender perspective throughout all activities of that Branch of the Republic.
It states that the foregoing is grounded “in the legal framework for the protection of human rights, both nationally and internationally, which enshrines, among others, the protection of the rights to equality without discrimination of any kind, equal protection of the law, and access to prompt and effective justice, all of which are enshrined in the principles comprising the Universal Declaration of Human Rights, the American Convention on Human Rights or Pact of San José, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the Political Constitution of Costa Rica.” It adds that this policy “recognized that ‘Equality before the law means the possibility of different treatment when the circumstances are different, that is, when persons are situated unequally,’ and likewise that ‘The principle of equity encourages judges, as well as all legal practitioners, to take into account, based on equitable criteria, the human background of disputes and to consider the personal, family, and social circumstances in each case and their consequences,’ which is not being applied because of the unconstitutional content challenged through this action.” It notes that the policy’s objective is “to guarantee equal opportunities for women and men and nondiscrimination on the basis of gender in judicial decisions, in the public service of the administration of justice, and in the internal operation of the Judiciary.” It explains that “this Gender Equality Policy was based on the ‘Brasilia Rules on Access to Justice for Persons in Vulnerable Conditions,’ under which Rule 19 states: ‘Violence against women shall be understood as any action or conduct, based on gender, that causes death or physical, sexual, or psychological harm or suffering to a woman, whether in the public or private sphere, through the use of physical or psychological violence.’ (…)” iv) “Violation of the principles of proportionality and reasonableness of the disciplinary sanction (sanción disciplinaria).
Lack of an appropriate nexus and congruence between the conduct regulated, the severity of the disciplinary sanction, and the greater sacrifice involved. Discrimination on the basis of my financial circumstances.” It states that, in view of the violation of the fundamental human rights and principles contained in our Political Constitution and constitutional law (Derecho de la Constitución) that have been invoked as the basis for this constitutional challenge (acción de inconstitucionalidad), specifically concerning the invocation of a judicial declaration of insolvency (declaratoria judicial de insolvencia) as grounds for denying the appointment of a judicial employee, as well as grounds for the disciplinary termination of the appointment, there is also a violation, by action and omission, of the constitutional principles of proportionality and reasonableness regarding the resulting termination of the appointment.
It notes that these provisions lack genuine, appropriate, necessary, causal, and objective elements for assessment, congruence, balance, and connection with the essential substance of the law governing sanctions (derecho sancionatorio). It adds that their application does not examine the factual circumstances, the judicial employee’s personal circumstances for the purpose of determining whether the situation is excusable, the corresponding sacrifice entailed by the measure, or the resulting grounds for terminating the appointment because of a judicial declaration of insolvency, all in relation to whether or not the public service provided by the Judiciary, its institutional image, or the prevailing public interest connected with the performance of the position has been adversely affected. It states that application of these grounds likewise does not require proof of serious or very serious misconduct in the judicial public service.
It explains that a proportionality test (test de proporcionalidad) must be applied to the challenged provisions in order to define and substantiate the alleged violations. It adds that the test contains three subprinciples that function as rules to be considered, in the sense that they are standards against which the matter must be examined; that is, it must be determined whether the chosen means satisfies the requirements of suitability, necessity, and proportionality in the strict sense, and if the answer is unsatisfactory, the consequence would be that the provision is unconstitutional. It argues that this test seeks to determine the legitimate purpose and suitability of the measure, as well as the necessity and proportionality of the provision, in connection with which the Inter-American Court of Human Rights has established that States Parties are obligated to adopt the internal measures necessary to bring their conduct and laws into conformity with conventional standards.
It states the following: “Before applying this proportionality test, considering the means and purpose of the challenged provisions, we must ask ourselves a question: is it necessary to apply, as the sole and most severe disciplinary sanction, the termination of the appointment of a Judiciary official who has been judicially declared insolvent in order to effectively guarantee the administrative public service for which that official is responsible within the Judiciary? Conducting the proportionality test will provide that answer because, in this specific case, proportionality seeks, as values, balance and moderation in the application of provisions that tend to limit fundamental rights or to result in the imposition of a disciplinary measure.” It presents the analysis as follows: “a.) As the first element of the proportionality test, we have the ‘Means employed by the legal provision versus its purpose,’ that is, its appropriateness, suitability, and effectiveness.
In this regard, the means employed by the legal provision must be suitable, appropriate, fit, and capable of achieving the proposed purpose; that is, it requires the chosen means to be the most appropriate in light of the factual possibilities, taking into account the purpose to be achieved. There must be an assessment of congruence and a practical connection between the means and the immediate purpose of the provision, because if that purpose is not attainable, the restriction is disproportionate even if it is otherwise suitable. In the case before us, Articles 12 and 26, subsection 9.) of Ley N° 7333 respectively establish, insofar as relevant, the prohibition against appointing to the judicial service persons who have been judicially declared insolvent and the grounds for terminating the appointment of those serving in judicial positions for the same reason, namely, having been judicially declared insolvent.
As stated in this action, and because those statutory provisions do not expressly or implicitly state their purpose, consideration must be given for those purposes to the legislative debate conducted by the Joint Legislative Committee that reviewed and settled the final wording of Bill No 10.753, which became Ley N° 7333, (-as previously noted-), as an element defining the legislative intent concerning those grounds. In that regard, the purpose established for the statutory provisions challenged through this proceeding is considered precautionary, based on an issue of trust concerning the handling of financial resources and the resolution of disputes submitted at the jurisdictional level because, during that legislative debate, Mag. Luis Paulino Mora, then a member of that Joint Legislative Committee, expressly stated that ‘[...] Judicial employees must enjoy a certain degree of trust from the public because, ultimately, we are responsible for resolving every kind of dispute [...] as to a person who has been declared insolvent, there is a certain loss of trust in that person, given that the person has been unable to manage his or her financial assets and may eventually be responsible for managing the financial assets of the public [...],’ this being the rationale and/or criterion for retaining as final the text ultimately approved for those statutory provisions.
The means employed by those provisions to achieve that purpose are, on the one hand (-Article 12-), to prohibit the appointment of persons as judicial employees if they have been judicially declared insolvent and, on the other hand (-Article 26, subsection 9.-), to order the termination of their appointment on those same grounds, namely, having been judicially declared insolvent. In this respect, it must be emphasized as a highly relevant consideration that, in both cases, those grounds are linked in the wording, for purposes of the proportionality analysis explained above, to other grounds associated with convictions for criminal offenses resulting in imprisonment and with persons subject to disqualification from holding public positions or performing public duties. (…)
In light of the foregoing, it is evident that the means employed by those statutory provisions are not only unsuitable, inappropriate, and unfit to achieve the proposed purpose, because considering a person who has been judicially declared insolvent to be unqualified for judicial service—to such an extent that it results in the termination of the appointment of those already employed—amounts to a case-specific and trivial application based on an apparent and unjustified loss of trust which, as already stated, instead appears to favor the imposition of a sanction requiring the employee to bear the greatest possible sacrifice because of a contingent and unproven situation involving mere risk, mere danger, or convenience, without any effective, genuine, and objective assessment of the general institutional purpose, namely, public service. (…)
In addition, the legislative intent contemplated those grounds because of the judicial official’s possible use of resources in resolving disputes, that is, in performing purely jurisdictional duties rather than administrative duties in which—as in my case—no public funds whatsoever are administered, held in custody, allocated, controlled, or safeguarded; moreover, there is no contact with the public, nor does the resolution of any dispute depend on that administrative work. Accordingly, the first criterion of this test may be deemed to establish that the provision is disproportionate because there is no congruence between the means and the provision’s immediate purpose in accordance with the standard mandated by constitutional law. Although preventing the appointment, or terminating the appointment, of a person in that situation might be regarded as the means of achieving the stated purpose, its counterpart—the restriction imposed without determining whether the situation is excusable or whether the person is blameless, weighed against the greater sacrifice it entails, in violation of the stated standards—causes the alleged disproportionality.
This is even more so considering, as in my case, that when this disciplinary measure is applied, no assessment is made as to whether the prevailing public service, the image and institutional integrity of the Judiciary, public order, morality, or third parties have been adversely affected, or whether serious or very serious misconduct in the judicial public service exists as a result of those grounds. b.) As the second element of the proportionality test, we have the ‘Means employed by the legal provision versus the need for regulation.’” In that regard, it is assessed whether that means is necessary to achieve the intended regulation; that is, it constitutes the mandate to optimize the least harmful means, through which it must be determined whether the objective can be achieved in another manner that affects the individual less. For those purposes, different means must be compared in order to determine the least burdensome alternative while achieving the intended legal regulation.
In light of the foregoing, an excessive measure is condemned because the urgent or compelling nature of the matter requires the sacrifice prescribed by the provision. With respect to the provisions challenged through this constitutional challenge (acción de inconstitucionalidad), it was already stated in point a.) above of this test that the means they employ to achieve that regulatory objective are, on the one hand (-Article 12-), to prohibit the appointment of persons as judicial officers if they have been judicially declared insolvent; and, on the other hand (-Article 26 subsection 9.), to order termination of appointment on that same ground, namely, having been judicially declared insolvent. In light of the foregoing, that means must be analyzed against the need to implement the regulation, examining alternatives consistent with the parameters of constitutional law (derecho de la constitución), in view of the sacrifice generated or potentially generated by that very need for regulation.
It bears noting that the applicability of the regulatory measure and the consequent need for it must take into account the diversity of situations that may arise in each specific case, such as whether the person works in a position involving adjudicative or administrative duties. (…) The question, then, is: what is the least burdensome disciplinary measure that should be applied in the case of a judicial declaration of insolvency where there is no evidence whatsoever of any harm, of serious or very serious misconduct affecting the public service, or of harm to the image or institutional integrity of the Poder Judicial? Is it proportionate to prevent the appointment of a person and, on the other hand, to terminate the appointment of persons who have been judicially declared insolvent where there is no evidence whatsoever of harm, of serious or very serious misconduct affecting the public service, or of harm to the image or institutional integrity of the Poder Judicial?
We reiterate that legal provisions, particularly punitive provisions, because of their more burdensome implications, must achieve the intended legal regulation on the basis of recognized constitutional and treaty-based principles. In light of the foregoing, the application of the provisions challenged as unconstitutional is manifestly disproportionate. The punitive means is excessive in relation to the urgent or compelling nature that would require the sacrifice prescribed by the provision, particularly when—as has already been stated and demonstrated—there is no harm whatsoever to the prevailing public service, the image and institutional integrity of the Poder Judicial, public order, morality, or third parties. (…)
Accordingly, it is evident that the provisions challenged through this action are so disproportionate, and consequently irrational and discriminatory, that they provide no basis upon which the person exercising disciplinary authority could reasonably have appropriate regulatory means for the various specific cases in which, as in mine, there may be grounds exempting a person from liability, so as to justify the excessive sacrifice entailed by termination of appointment and instead determine the least burdensome alternative, achieving the intended legal regulation without imposing excessive disciplinary sanctions or regulation. (…)
In the case before us, it was already stated in point a.) above of this test that the means employed by the provisions challenged through this proceeding to achieve that regulatory objective are, on the one hand (-Article 12-), to prohibit the appointment of persons as judicial officers if they have been judicially declared insolvent and, on the other hand (-Article 26 subsection 9.-), to order termination of appointment on that same ground, namely, having been judicially declared insolvent. It must therefore be understood that the structure of the provision is exhaustive and punitive in nature. In light of the foregoing, that means must be analyzed from a cost-benefit perspective, with the cost understood as the sacrifice entailed by the punitive measure of termination of appointment, as weighed against the benefit or advantage obtained by the Poder Judicial through the imposition of that sacrifice, all, of course, in relation to the objective pursued by the provision.
We stated above that the purpose established for those challenged legal provisions is precautionary in nature and concerns trust in the handling of financial resources and the resolution of disputes submitted for adjudication, all based on an understanding of the legislative debate regarding the ground included in the bill that became Ley No 7333, in which the Comisión Mixta Legislativa, which confirmed that those grounds should be retained, relied on the opinion of Mag. Luis Paulino Mora, who stated: “[...] Judicial employees must enjoy a certain degree of trust from the public because, ultimately, we are responsible for resolving every kind of dispute [...] as to a person who has been declared insolvent, there is a certain loss of trust in him, given that he has been unable to manage his financial assets and may eventually be responsible for managing the financial assets of the public […]” (-folios [Valor 040] (images [Valor 064] of bill No 10.753-) It must again be clarified that this debate arose because the Comisión Legislativa de Gobierno y Administración issued a report on the scope of that ground of insolvency, stating that “[...] With respect to bankrupt and insolvent persons, they have circumstances which, if they do not affect the employment relationship with the institution, should in no way be treated as grounds for dismissing a judicial officer; allowing this would amount to imposing a sanction based merely on a potential risk […]” [-folio [Valor 082] [image [Valor 065] of bill N° 10.753-) (…) We have no objection regarding the legitimacy of the challenged provisions, since it accords with legal theory concerning the means by which they were enacted, namely, by statute and, consequently, by the ordinary legislature.
Nevertheless, as the Corte Interamericana de Derechos Humanos stated in its Judgment of 24 de febrero de 2011, Case of Gelman v. Uruguay: “[...] The mere existence of a democratic system does not guarantee, per se, continuing respect for international law, including international human rights law, as has even been recognized by the Carta Democrática Interamericana itself. The democratic legitimacy of particular events or acts in a society is limited by the international rules and obligations protecting human rights recognized in treaties such as the Convención Americana, such that the existence of a genuine democratic system is determined by both its formal and substantive characteristics. Thus, particularly in cases involving serious violations of the rules of international human rights law, the protection of human rights constitutes an insurmountable limit on majority rule, that is, on the sphere of matters ‘capable of being decided’ by majorities in democratic bodies, in which ‘conventionality review’ (control de convencionalidad) must also prevail [...], a function and duty incumbent upon every public authority and not only the Poder Judicial [...]”.
In the same vein, regarding the legitimacy of domestic legislation, the Corte Interamericana de Derechos Humanos, in its Judgment of 23 de noviembre de 2009 in the Case of Radilla Pacheco v. Mexico, held: “[...] For this Court, the mere repeal or enactment of provisions under domestic law does not guarantee the rights contained in the Convención Americana in accordance with the obligation set forth in Article 2 of that instrument. The development of State practices conducive to the effective observance of the rights and freedoms enshrined therein is also required. Consequently, the existence of a provision does not, by itself, guarantee that it will be properly applied. The application or interpretation of provisions, as adjudicative practices and manifestations of the State’s public order, must be consistent with the objective pursued by Article 2 of the Convention [...]”. At this juncture, we consider it necessary, for purposes of the analysis and interpretation of that Honorable Chamber, to mention the required application of conventionality review, with the understanding that when a State has ratified an international treaty such as the Convención Americana de Derechos Humanos—as Costa Rica has—its judges and public authorities generally are also subject to it, which obliges them to ensure that the practical effect of those binding international rules is not nullified by the application of laws contrary to their provisions, object, and purpose.
In that regard, the Corte Interamericana de Derechos Humanos itself has stated that authorities must exercise not only constitutional review but also ex officio “conventionality review,” a function that must not be limited exclusively by the submissions or acts of the claimants in each specific case. (…)
In doing so, the Court determines whether the measure adopted—the penalty—fully safeguarded the right it sought to protect without nullifying the right being restricted and thereby requiring its sacrifice. As may be noted, the proportionality test applied to the provisions challenged through this constitutional challenge (acción de inconstitucionalidad) is consistent with the parameters established by the Inter-American Court of Human Rights, concluding that the challenged legislation, with its mandatory and exhaustive nature (taxatividad imperativa), lacks congruence, a legitimate purpose, suitability, and objective necessity, thereby rendering it disproportionate and consequently irrational, particularly in view of the sacrifice it entails. Based on the foregoing, it may be conclusively determined that the legal provisions challenged through this proceeding are disproportionate and consequently irrational and discriminatory on account of my financial circumstances, thus violating the fundamental rights I have invoked.
I request that this Honorable Chamber carefully examine my circumstances in relation to the challenged statutory provisions, in light of the factual and legal grounds asserted in this constitutional challenge.”
V.On the constitutional analysis of subsection 9 of section 26 of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial). In the matter under examination (sub examine), it is important to clarify the scope of the challenged provision.
The article in question establishes the following grounds for termination of the duties of persons serving in judicial positions: the person’s death (subsection 1), expiration of the appointment (subsection 2), revocation of the appointment (subsection 3), removal in the interest of better service (subsection 4), accepted resignation (subsection 5), material incapacity lasting more than six months (subsection 6), a lower-court judge being related to a higher-court judge (subsection 7), having entered into a marriage that subjects the person to any ground for disqualification (subsection 8), having been convicted of an offense carrying the penalty of disqualification from holding public office (subsection 9), and having been judicially declared bankrupt or insolvent (subsection 9). It should be noted that this last subsection establishes two entirely independent situations.
Regarding provisions addressing aspects of private life, the Chamber, like the Procuraduría General de la República, considers that, in principle, they are not in themselves unconstitutional, nor do they necessarily entail a violation of judicial employees’ rights to privacy and liberty, since such employees are subject to greater burdens, obligations, and duties. In this respect, this Court agrees with the advisory body’s statement that public officials do possess the rights to privacy and liberty, but that the threshold applicable to them differs from that protecting a citizen who has not assumed the status and responsibility of a person holding public office.
Nevertheless, for purposes of deciding this action, it is necessary to analyze whether a judicial declaration of insolvency as grounds for terminating the duties of any judicial employee is contrary to the Law of the Constitution (Derecho de la Constitución).
The situation under examination is expressly regulated as follows:
“Article 26.- In compliance with the conditions and procedures established by this Law, the duties of those serving in judicial positions shall terminate due to:
(…)
Under a plain reading of the provision, any judicial employee must be removed from office upon being judicially declared insolvent. In other words, the legal decision-maker is afforded no discretion to assess the circumstances.
In this respect, as explained by the Procuraduría General de la República, the conduct contemplated by the provision (insolvency) carries a burdensome consequence (termination of the appointment); therefore, the constitutional principles of reasonableness and proportionality apply, and this Court has established the parameters governing their analysis.
The Chamber, in judgment no. [Valor 084] at 12:06 on 2 de octubre de 1998, held:
“IX.- On the constitutional principle of reasonableness. The principle of reasonableness arises from so-called ‘substantive due process’ (debido proceso substantivo), meaning that public acts must have a foundation of intrinsic justice. When certain rights are restricted, this rule imposes a duty to ensure that such a limitation is justified by a sufficiently compelling reason to legitimize its conflict with the general principle of equality.
An act restricting rights is reasonable when it satisfies three conditions: it must be necessary, suitable, and proportionate. The necessity of a measure directly concerns the existence of a factual basis requiring the protection of some public good or set of public goods—or those of a particular group—through the adoption of a differentiating measure. That is, if such action is not taken, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable and, consequently, constitutionally valid. Suitability, in turn, entails an assessment of whether the type of restriction to be adopted fulfills the purpose of addressing the identified need. The measure’s unsuitability would indicate that other mechanisms may better address the existing need, some of which might achieve the proposed purpose without restricting the enjoyment of the right in question.
Proportionality, in turn, requires a necessary comparison between the purpose pursued by the act and the type of restriction imposed or sought to be imposed, so that the limitation is not markedly greater than the benefit it is intended to secure for the community. Of the last two elements, it could be said that the former is based on a qualitative assessment, while the latter is based on a quantitative comparison of the two objects analyzed.” (Judgment number [Valor 085], at sixteen hours and thirty-three minutes on quince de diciembre de mil novecientos noventa y ocho)”. () Subsequently, the Chamber, in judgment no. [Valor 111] at 16:31 on 21 de marzo de 2012 (A Calzada (VS), LP Mora (VS), G Armijo, F Cruz, F Castillo (VS), P Rueda and R Guerrero), clarified the scope of the principle of reasonableness in the following terms:
“V.- APPLICATION OF THE PRINCIPLE OF REASONABLENESS. This so-called principle actually constitutes a ‘reasonableness test,’ a protocol intended to objectify, to some degree, the reasoning process by which the adjudicator concludes that a particular measure is unreasonable or disproportionate. ‘What is reasonable’ is certainly a matter of assessment that can and must nevertheless be supported by argument so that it is at least plausible. The aim is to set forth a methodology for applying that principle that is useful in presenting the arguments used to characterize something as reasonable or unreasonable. That methodology contains the following elements: a) legitimacy, in the sense that the measure must not clearly violate any higher-ranking legal mandate; b) appropriateness, insofar as the measure effectively serves to achieve the intended purpose; c) necessity, which means that, among several appropriate measures, the least harmful must be selected; and d) so-called ‘proportionality in the strict sense,’ which requires that under no circumstances may the essential content of a constitutional right be impaired in a process of balancing legal norms.
It should be clarified that, for the majority of legal scholars, legitimacy is instead conceived as a prerequisite. This protocol is applied in stages, so that if examination at the first stage is unsatisfactory, it is unnecessary to proceed with the remaining aspects, although in some cases they may be examined in greater depth to make the ruling more conclusive.” Thus, under the Chamber’s case law, an act restricting rights (such as terminating a public employee’s duties because the employee has been judicially declared insolvent) is reasonable when it satisfies three conditions: it must be necessary, suitable, and proportionate. Likewise, for these purposes, it must also satisfactorily meet the elements of the reasonableness test: legitimacy, appropriateness, necessity, and proportionality in the strict sense.
In this regard, it must be noted that Article 26 of the Ley Orgánica del Poder Judicial establishes circumstances that differ considerably from one another as grounds for terminating the duties of persons serving in judicial positions; therefore, that provision cannot be said to have a single, unequivocal purpose. Turning specifically to subsection 9 of that section, it encompasses both a conviction for an offense warranting the penalty of disqualification from holding public office and a judicial declaration of bankruptcy or insolvency. There is no doubt that the first part concerns the penalty for an offense and thus creates a material impossibility of performing the duties of the position; however, the mere fact of having been judicially declared insolvent does not, in itself and as a general matter, justify terminating the duties of any official of the Poder Judicial.
Regarding the purpose of this last ground, the parties advance three positions in this action:
She refers to a discussion between Deputy Santana Esquivel and then-Justice Luis Paulino Mora, as members of the Joint Legislative Subcommittee, in which they analyzed the relevance of the opinion issued by the Legislative Committee on Government and Administration regarding the repeatedly cited ground under Article 26, subsection 9.), in order to decide definitively whether that ground should be retained or amended: “JUSTICE LUIS PAULINO MORA: [...] Judicial employees must be afforded a certain degree of public confidence because, ultimately, we are responsible for resolving every kind of dispute that exists between the citizenry and the State and within State institutions. That is why it has been considered that, when a person has been declared insolvent, there is a certain loss of confidence in that person, since that person has been unable to manage his or her financial assets and may eventually be responsible for managing the financial assets of the citizenry; this is why provisions of this kind are traditionally found.
That is the only observation I could make regarding whether to eliminate or retain it. My recommendation is to retain the provision that persons in a state of bankruptcy or insolvency may not serve as judicial officers. DEPUTY SANTANA ESQUIVEL: We will continue, then. We will retain this article as it stands [...]”. She explains that former Justice Mora Mora’s justification was the reason for retaining the ground for termination related to insolvency and that, in doing so, he referred to the adjudicative work (labor jurisdiccional) of the Poder Judicial without considering administrative duties, to the existence of “a certain loss of confidence” resulting from such a declaration, and to the fact that the person “may eventually have control over financial resources.” She argues that the foregoing reveals an empty and unfounded argument because not all judicial employees fall within that scenario and, moreover, it does not establish the existence of any reason that seriously harms the institution’s provision of services.
She explains that a person is not penalized for mere potential harm or a simple risk based on considerations of mere judicial convenience, because the provision applies when a judicial declaration of bankruptcy or insolvency (declaratoria de quiebra o insolvencia) is issued—that is, after an entire judicial proceeding in which matters related to the debtor’s defaults on assumed credit obligations are litigated and which culminates in that declaration, in addition to the imposition of a series of measures or restrictions enabling the person to resolve that situation. She adds that the legislature considered the foregoing to entail a situation of mistrust and sought to ensure the probity (probidad) of judicial employees so as to be certain that they act responsibly with respect to both their employment obligations and their private lives. She asserts that the imposition of this type of penalty falls fully within the principle of legality (principio de legalidad) because it concerns conduct prohibited by a legal provision, which is inconsistent with the petitioner’s allegations that the provision permits punishment for mere potential harm or a simple risk.
Based on the foregoing, it may be concluded that no entirely clear purpose has been established for including a judicial declaration of insolvency (declaratoria judicial en estado de insolvencia) as an automatic ground for terminating the duties of any judicial employee. Although it would not be illegitimate to impose this ground on certain positions within the Poder Judicial because of the functions they perform, there is no apparent objective justification supporting the subsection’s general scope. It should be noted that the legislative discussions cited by the petitioner and partially revisited by the Vice President of the Corte Suprema de Justicia refer to the fact that “there is a certain loss of confidence in that person [referring to the judicial employee responsible for resolving disputes], since that person has been unable to manage his or her financial assets”; however, there is no express justification in the record for the ground’s general scope or for the failure to assess the specific circumstances.
In addition, the Chamber agrees with the position of the Procuraduría General de la República insofar as it considers that, for a judicial declaration of insolvency to constitute a valid ground for terminating duties, it should have some effect on the Poder Judicial or on the confidence placed in the officer, which unquestionably requires consideration of the nature of the positions and the possibility of assessing any exculpating or mitigating circumstances (eximentes o atenuantes) surrounding the reason for the declaration.
Regarding this last point, although a judicial declaration of insolvency is a matter that may legitimately be considered in a public employment relationship (relación de empleo público), it cannot be treated in absolute terms. For example, it is possible that, because of a circumstance beyond the judicial employee’s control, such a declaration may not result from mismanagement of the employee’s assets but may instead be the consequence of debts incurred to address an illness or emergency, or may be due to force majeure (fuerza mayor). There may also be cases in which the judicial employee’s duties neither place the Poder Judicial at risk nor adversely affect it.
Thus, if the consequence of the ground is so severe—termination of duties—and there is no justification for extending its application to every officer of the Poder Judicial, without even providing an opportunity to demonstrate the absence of danger or adverse effect or the existence of exculpating or mitigating circumstances, the violation of the principles of reasonableness and proportionality (principios de razonabilidad y proporcionalidad) becomes evident. In that regard, a priori, the necessity (that there be a factual basis making it necessary to protect some interest or set of interests by adopting a measure), suitability (idoneidad) (that the adopted restriction fulfill the purpose of addressing the identified need), and proportionality (that the limitation not be markedly more burdensome than the benefit sought for the community) of the rights-restricting act (acto limitativo de derechos) have not been established. Accordingly, under the reasonableness test (test de razonabilidad), although no evident violation of legitimacy is apparent, the examination of appropriateness, necessity, and “proportionality in the strict sense” (proporcionalidad en sentido escrito) does not yield a satisfactory result because, respectively, it was not established:
In addition, the analysis provided by the Procuraduría General de la República is endorsed, insofar as it states that, under the principles of reasonableness and proportionality (principios de razonabilidad y proporcionalidad), any adverse consequence affecting an individual must constitute a measure strictly necessary to achieve the intended objective, and that the principle of proportionality requires the legislature first to establish the limits within which the legal decision-maker may interpret the provision in light of the specific circumstances. Likewise, as explained by the advisory body, the administrative authority must have a margin of discretion (margen de discrecionalidad) granted by the legislature to ensure that the adverse consequence is applied only when it is reasonable and proportionate to its underlying cause. Indeed, the current wording of the provision does not permit different interpretations; rather, its content necessarily requires that it be applied to any person who falls within that situation. In other words, the problem does not arise from an incorrect application of the provision, but from its application under the terms established by the legislature, which, as already stated, leaves no room for a legal interpretation (hermenéutica) that would temper its scope.
For the foregoing reasons, the phrase “or insolvency” contained in subsection 9) of section 26 of the Ley Orgánica del Poder Judicial must be declared unconstitutional (declaratoria de inconstitucionalidad), because it is contrary to the principles of proportionality and reasonableness.
Because there are sufficient grounds to declare unconstitutional the reference to “insolvency” in subsection 9 of section 26 of the Ley Orgánica del Poder Judicial, it is unnecessary to rule on the remaining claims, as this Chamber has consistently held from the outset in numerous matters (see judgments numbers [Valor 086], [Valor 087], [Valor 088], [Valor 089], [Valor 090], [Valor 091], among others).” Finally, it bears recalling that the Poder Judicial has a body of rules for addressing unjustified failure to fulfill financial obligations and commitments when, due to the magnitude of the risk, such failure jeopardizes the proper provision of public service or the institution’s good reputation. Such cases may be pursued through disciplinary proceedings (procedimientos disciplinarios), with the consequences established by the legal system according to the circumstances, evidentiary elements, and legal assessment of the particular situation. Thus, for example, section 192, subsection 9, and section 194 of the Ley Orgánica del Poder Judicial provide:
“Article 192.- The following are considered serious offenses (faltas graves):
(…)9.- The unjustified failure to pay a credit obligation for which the person is liable as the principal debtor and which is being collected through judicial proceedings.
Article 194.- Any other violation or negligence in the performance of the duties inherent to the position, not provided for in the preceding articles, shall be heard by the competent bodies in order to determine whether it constitutes a very serious, serious, or minor offense, for the purpose of applying the disciplinary regime (régimen disciplinario). For this purpose, the conduct identified in the preceding articles shall be used as a reference.”
VI.Documentation submitted to the case file (documentación aportada al expediente). The parties are hereby advised that, if they have submitted any paper document, as well as objects or evidence contained on any additional electronic, computer, magnetic, optical, or telematic device, or produced using new technologies, these must be collected from the court office within a maximum period of 30 business days from notification of this judgment. Otherwise, any material not collected within that period shall be destroyed, pursuant to the “Reglamento sobre Expediente Electrónico ante el Poder Judicial,” approved by the Corte Plena at session N° 27-11 of 22 de agosto del 2011, article XXVI, and published in the Boletín Judicial number 19 of 26 de enero del 2012, as well as the resolution approved by the Consejo Superior del Poder Judicial at session N° 43-12 held on 3 de mayo del [Valor 027] 12, article LXXXI.
Por tanto:
The action is partially granted (se declara parcialmente con lugar la acción) on the grounds of a violation of the principles of proportionality and reasonableness. Consequently, the phrase “or insolvency” contained in subsection 9 of article 26 of the Ley Orgánica del Poder Judicial is declared unconstitutional. The judgment shall have declaratory and retroactive effect as of the effective date of the invalidated law, without prejudice to rights acquired in good faith. As to the alleged violation of section 12 of the same body of law, the action is declared inadmissible. A summary of this ruling shall be published in the Diario Oficial La Gaceta, and the ruling shall be published in full in the Boletín Judicial. This ruling shall be served on the petitioner, the Procurador General de la República, and the Presidente de la Corte Suprema de Justicia.
Fernando Castillo V.
Paul Rueda L.
Nancy Hernández L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ronald Salazar Murillo *HD43IVXXEHFK61* Telephone numbers: 2549-1500 / 800-SALA-4TA (800-7252-482). Fax: 2295-3712 / 2549-1633. Website: www.poder-judicial.go.cr/salaconstitucional. Address: (Sabana Sur, Calle Morenos, 100 mts.Sur de la iglesia del Perpetuo Socorro). Filing of matters involving vulnerable groups: Edificio Corte Suprema de Justicia, San José, Distrito Catedral, Barrio González Lahmann, calles 19 y 21, avenidas 8 y 6
*180165910007CO* SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve horas veinte minutos del dieciseis de setiembre de dos mil veinte .
Acción de inconstitucionalidad interpuesta por [Nombre 001], contra los artículos 12 y 26 inciso 9) de la Ley Orgánica del Poder Judicial n.o 7333 de 5 de mayo de 1993.
Resultando:
Artículo 26.- En cumplimiento de las condiciones y procedimientos que establece esta Ley, las funciones de los que sirven puestos judiciales cesan por: (…) 9. Haber sido condenado, en sentencia firme, por algún delito que merezca pena de inhabilitación para el desempeño de cargos u oficios públicos y por haber sido declarado, judicialmente, en estado de quiebra o insolvencia" (La negrita no es del original)”. Indica que, tal como se desprende de las normas impugnadas, no se trata de normas de carácter disciplinario en sentido estricto, pues no existe un bien jurídico tutelado ni una consecuencia derivada de la falta en el servicio público por parte del funcionario. Señala que tales normas son de carácter preventivo, pues buscan establecer un principio de "confianza legítima ", al pretender que quienes se desempeñen en cualquier puesto dentro del Poder Judicial, se conduzcan adecuadamente en su esfera privada y no tengan una insolvencia económica que los podría colocar eventualmente en una situación riesgosa, que pueda traducirse posteriormente en un detrimento en el desempeño de sus funciones públicas.
Acota que las normas pretenden que quienes trabajen en el Poder Judicial tengan ciertas características personales (solvencia económica), que, en caso de perderlas, los hará perder su nombramiento. Refiere que aun cuando la norma aplicada a la accionante no constituye una sanción disciplinaria en sentido estricto, es lo cierto que la conducta prevista en la norma (insolvencia o quiebra) tiene una consecuencia gravosa (cese del nombramiento) y, por tanto, le resulta de aplicación todos los principios constitucionales que rigen el debido proceso y, específicamente los principios de razonabilidad y proporcionalidad. Expone que, a partir del principio de razonabilidad y proporcionalidad, cualquier consecuencia gravosa en la esfera del individuo, debe constituir una medida estrictamente necesaria para alcanzar el objetivo buscado. Arguye que, por lo anterior, el principio de proporcionalidad requiere la previa fijación por parte del legislador de los límites dentro de los cuales el operador jurídico se podrá mover para la interpretación de la norma en atención a las circunstancias concretas.
Explica que la autoridad administrativa, en consecuencia, debe contar con un margen de discrecionalidad otorgado previamente por el legislador para garantizar que la consecuencia gravosa únicamente se aplique cuando esta sea razonable y proporcional a la causa de origen. Sostiene que la aplicación de los principios de razonabilidad y proporcionalidad hace cuestionar la constitucionalidad de las normas impugnadas. Comenta que si se analizan las normas citadas, se observa que la disposición normativa no permite graduación alguna ni la atención de circunstancias particulares frente a los casos concretos, pues la única consecuencia posible ante la declaratoria de quiebra o insolvencia, es el cese del nombramiento o la imposibilidad de ingreso al Poder Judicial, sin importar de cuál funcionario se trate. Añade que la norma resulta de alcance general para todos los puestos del Poder Judicial, sin valorar la naturaleza de las funciones ni la especial labor que realizan algunos funcionarios.
Asevera que atendiendo a la naturaleza de ciertos puestos que manejan fondos públicos o que administran justicia, puede justificarse la imposición de ciertas características y comportamientos personales, pues estos pueden incidir en la imagen o en la independencia de dichos servidores en el desempeño de sus funciones. Manifiesta que del análisis del expediente legislativo, se desprende que la intención de la norma impugnada siempre fue declarar una "pérdida de confianza" del funcionario judicial “que no ha podido manejar sus haberes económicos y eventualmente va a tener disposición de manejar los haberes económicos de la ciudadanía" (ver manifestaciones del Magistrado Luis Paulino Mora a folios [Valor 075] y [Valor 076] del administraban justicia o que, por la condición de su puesto, debía exigírseles un adecuado manejo de sus haberes personales. Indica que, pese a ello, la norma aprobada no refleja tal intención, sino que, por el contrario, se aprobó de manera general para todos los funcionarios judiciales y al no permitir distinción alguna ni valoración de circunstancias concretas, se convierte en irrazonable.
Estima que la redacción inflexible de la norma, resulta violatoria del principio de razonabilidad y proporcionalidad, pues no permite ningún margen de maniobra para el operador jurídico, que se ve obligado a aplicar la consecuencia jurídica (cese del nombramiento) aun para puestos judiciales que no tienen trascendencia según el fin buscado. Señala que si bien podría pensarse que el aspecto descrito es un tema de aplicación de la norma y no de constitucionalidad, lo cierto que la Inspección Judicial no tenía otra posibilidad diferente a cesar de su puesto a la accionante, pues la norma no le permite ninguna otra opción. Insiste que, en el caso concreto, no existe la violación a un bien jurídico, por tanto la razonabilidad de la norma (necesidad) únicamente podría justificarse en la especial naturaleza que tienen ciertos puestos del Poder Judicial, que obligan a imponer determinados comportamientos personales a quienes los ocupan, pues eventualmente dichos comportamientos pueden incidir en la independencia, objetividad, o la forma de resolver determinados asuntos.
Acota que el requisito impuesto debería ser una condición del servidor judicial en atención a una función determinada, pero resulta desproporcionado que se aplique de manera general, tal como está redactada la norma, sobre todo cuando la misma implica una seria afectación al derecho al trabajo. Cita el voto de esta Sala n.o [Valor 077]: “Así, ha reconocido la Sala que 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 que será 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”. Agrega que en similar sentido se dictaron los votos n.os [Valor 109] y [Valor 110]. que, en criterio de ese órgano asesor, lo dispuesto en el inciso 9 del numeral 26 de la Ley Orgánica del Poder Judicial, aplicado a la accionante, resulta contrario a los principios de razonabilidad y proporcionalidad por la forma inflexible en que está redactado.
Añade que no se justifica la necesidad de la norma para todos los funcionarios judiciales ni se otorga margen de aplicación al operador jurídico. Considera que la norma debería anularse. Menciona la sentencia n.o [Valor 078] de las 11:57 horas de 15 de octubre de 1999 reproducida en la resolución n.o [Valor 079] de las 14:47 horas de 4 de octubre de [Valor 027] . Afirma que, en caso de considerarse la existencia de la norma en atención a ciertas funciones, podría realizarse una interpretación conforme al Derecho de la Constitución, que contemple que la norma se justifica y debe aplicarse únicamente a los puestos de funcionarios que administren justicia o fondos públicos; sin embargo, en este caso se estaría incursionando en el campo del legislador. Expone que, tomando en cuenta los reclamos planteados por la accionante, no corresponde a la Sala, en la vía de la acción, valorar las supuestas deficiencias en la tramitación del expediente llevada a cabo por la Inspección Judicial, ni tampoco la forma en la que tal órgano ha venido aplicando las sanciones en otros casos.
Refiere que muchos de los argumentos de la accionante están relacionados con la aplicación de la norma y no con la constitucionalidad de esta, por lo que omiten referirse al respecto. Concluye lo siguiente: “En vista de las anteriores consideraciones, este órgano asesor estima que la legitimación de la accionante es parcial, únicamente en cuanto impugna lo dispuesto en el numeral 26 inciso 9) de la Ley Orgánica del Poder Judicial, al ser la norma aplicada en el asunto base. En cuanto al fondo, esta representación considera que lo dispuesto en dicho numeral, resulta inconstitucional por la rigidez de su redacción, al no permitir margen de aplicación al operador jurídico y no demostrarse su necesidad con relación a la generalidad de los funcionarios del Poder Judicial (principio de razonabilidad y proporcionalidad). Por lo anterior, se recomienda la anulación de lo dispuesto en el numeral 26 inciso 9) indicado, sin perjuicio de que la Sala estime necesaria la interpretación conforme al Derecho de la Constitución de dicha norma en los términos indicados. En cuanto al artículo 12 de la Ley Orgánica del Poder Judicial, dicha norma no resulta de aplicación a la accionante, sin perjuicio de que la Sala estime entrar a valorar la misma por conexidad”.
Redacta el Magistrado Rueda Leal; y,
Considerando:
I.Objeto de la acción. La señora [Nombre 001] plantea acción de inconstitucionalidad en contra del artículo 12 y del inciso 9 del numeral 26, ambos de la Ley Orgánica del Poder Judicial, n.o 7333 de 5 de mayo de 1993, por estimarlos contrarios a los artículos 28, 39 y 56 de la Constitución Política, así como a los principios de razonabilidad y proporcionalidad. En términos generales, estima que las normas cuestionadas lesionan el derecho al trabajo, a la protección de la familia y a la seguridad jurídica; además, los principios de culpabilidad e inocencia por la imposición de la máxima sanción (revocatoria del nombramiento) pese a que no se ha demostrado afectación al servicio público o terceros; y finalmente, los principios de razonabilidad y proporcionalidad de la sanción, pues no solo tienen un alcance extenso sino que establecen un criterio objetivo que impide cualquier valoración en relación con la oportunidad de la sanción y el tipo de sanción a aplicar.
“Artículo 12.- Sin perjuicio de los otros requisitos exigidos por la ley, para ingresar al servicio judicial se requiere estar capacitado, mental y físicamente, para desempeñar la función, según su naturaleza.
Sin embargo, no podrán ser nombradas las personas contra quienes haya recaído auto firme de apertura a juicio; tampoco los condenados por delito a pena de prisión; los que estén sometidos a pena de inhabilitación para el desempeño de cargos u oficios públicos; ni los declarados judicialmente en estado de quiebra o insolvencia; los que habitualmente ingieran bebidas alcohólicas en forma excesiva, consuman drogas no autorizadas o tengan trastornos graves de conducta, de modo que puedan afectar la continuidad y la eficiencia del servicio.
(Así reformado por el artículo 1° de la Ley N° 7728 de 15 de diciembre de 1997)” “Artículo 26.- En cumplimiento de las condiciones y procedimientos que establece esta Ley, las funciones de los que sirven puestos judiciales cesan por:
(…)
III.Sobre la admisibilidad de la acción. La acción de inconstitucionalidad es un proceso con determinadas formalidades, que deben ser satisfechas a efectos de que la Sala pueda válidamente conocer el fondo de la impugnación. El artículo 75 de la Ley de la Jurisdicción Constitucional establece los presupuestos de admisibilidad de la acción de inconstitucionalidad. En primer término, se exige un asunto previo pendiente de resolver, sea en vía judicial o administrativa (en el procedimiento para agotarla), en que se haya invocado la inconstitucionalidad como medio razonable para amparar el derecho o interés que se considera lesionado. En el párrafo segundo y tercero, de manera excepcional contempla la ley supuestos en los que no se exige el asunto previo, tales como inexistencia de lesión individual y directa por la naturaleza del asunto, defensa de intereses difusos o colectivos, o bien, cuando sea formulada directamente por el Contralor General de la República, el Procurador General de la República, el Fiscal General de la República y el Defensor de los Habitantes.
Ahora, en cuanto a la necesidad de un asunto previo pendiente de resolver en sede administrativa, es necesario que este trate del procedimiento que agota la vía administrativa, el cual, de conformidad con el artículo 126 de la Ley General de la Administración Pública, se da a partir del momento en que se interponen los recursos ordinarios ante el superior jerarca del órgano que dictó el acto final, pues de lo contrario la acción resultaría inadmisible. Asimismo, existen otras formalidades que deben ser satisfechas, a saber, la determinación explícita de la normativa impugnada, debidamente fundamentada, con cita concreta de las normas y principios constitucionales que se consideren infringidos, la autenticación por abogado del escrito en el que se plantea la acción, la acreditación de las condiciones de legitimación (poderes y certificaciones), así como la certificación literal del escrito en el que se invocó la inconstitucionalidad de las normas en el asunto base, requisitos todos que, en caso de no ser aportados por la parte accionante, pueden ser prevenidos para su cumplimiento por la Presidencia de la Sala.
En el sub examine, la accionante refiere que el expediente n.o [Valor 001] es el asunto previo que sustenta la presente acción de inconstitucionalidad en contra del artículo 12 y del inciso 9 del numeral 26, ambos de la Ley Orgánica del Poder Judicial. Al respecto, señala que se encuentra en etapa de agotamiento de la vía administrativa ante el Consejo Superior del Poder Judicial y fue tramitado en primera instancia por el Tribunal de la Inspección Judicial, quien, mediante voto n.o [Valor 018] de 4 de octubre de 2018, dispuso la revocatoria de su nombramiento por haber sido declarada judicialmente en estado de insolvencia.
Sobre el particular, es importante precisar que, en efecto, el procedimiento administrativo se encuentra en etapa de agotamiento de la vía; sin embargo, la resolución del Tribunal de la Inspección Judicial únicamente se sustentó en el inciso 9 del artículo 26 de la Ley Orgánica del Poder Judicial. Asimismo, de la lectura del recurso de apelación incoado, se desprende que la accionante solo invocó y desarrolló la inconstitucionalidad de este ordinal.
En consecuencia, se admite la acción en cuanto al inciso 9 del artículo 26 de la Ley Orgánica del Poder Judicial, por constituir la invocación de la inconstitucionalidad en el asunto previo, medio razonable para amparar los derechos que se consideran lesionados. Por otra parte, se declara inadmisible la acción en lo que corresponde al ordinal 12 del mismo cuerpo normativo, toda vez que no se le aplicó a la amparada en el procedimiento ni mucho menos se alegó su inconstitucionalidad en la vía administrativa.
IV.Sobre la alegada inconstitucionalidad del inciso 9 del artículo 26, ambos de la Ley Orgánica del Poder Judicial, n.o 7333 de 5 de mayo de 1993.
a)- Sobre los motivos de la accionante relacionados con su caso concreto. Al respecto, es importante indicar que la gran cantidad de alegatos expuestos por la accionante relacionados con el fondo de lo decidido en la causa disciplinaria, así como con las deficiencias en su tramitación, el rechazo de la prueba, la situación que provocó su insolvencia y la forma en la que se han resuelto otros procedimientos, son aspectos que no son propios de ser valorados en la vía de la acción, ya que están referidos a la aplicación de la norma en su caso concreto. En virtud de lo anterior, la Sala solo entrará a conocer los alegatos de constitucionalidad sin ahondar en las particularidades expuestas, sin perjuicio de lo que se resuelva en la vía común con ocasión del contenido de esta sentencia.
b)-Sobre los argumentos de inconstitucionalidad formulados por la accionante. En el sub examine, la accionante considera contrario al Derecho de la Constitución que se establezca la declaratoria judicial de insolvencia como motivo para que el cese de funciones sin dejar un margen de discrecionalidad o valoración, hasta excusable, que generó esa condición y, ante todo, sin valorar elementos ni los “ principios de congruencia, proporcionalidad, razonabilidad causal, finalidad legítima, buena fe, necesidad familiar, intimidad, valoración de una pérdida de confianza objetiva debidamente acreditada frente a las funciones que desempeño, existencia de afectación real a la imagen o institucionalidad del Poder Judicial, así como tampoco la existencia de una falta grave ni mucho menos gravísima al servicio público judicial, aspectos de género, entre otros, todo ello frente a la existencia o no de una afectación a la continuidad y la eficiencia del servicio judicial, como sí se valora y define para otras causales en esos mismos artículos (…)”.
Expone que del análisis e investigación del contenido del proyecto de la ley de marras se obtuvo como aspectos de importancia para esta acción de inconstitucionalidad lo siguiente : “(…) ü A folios [Valor 027] , [Valor 028] , [Valor 029] (imágenes [Valor 030], [Valor 031], [Valor 032] ), se evidencia la moción No [Valor 035] planteada por el diputado Ovidio Pacheco, tendente a modificar la redacción del artículo 26 inciso
V.Sobre el análisis de constitucionalidad del inciso 9 del numeral 26 de la Ley Orgánica del Poder Judicial. En el sub examine, es importante tener claridad sobre los alcances de la norma cuestionada.
El artículo de marras establece las siguientes causales de cese de las funciones de las personas que sirven en puestos judiciales: muerte de la persona (inciso 1), término del nombramiento (inciso 2), revocatoria del nombramiento (inciso 3), separación para el mejor servicio (inciso 4), renuncia aceptada (inciso 5), impedimento material por más de seis meses (inciso 6), encontrarse un juez inferior respecto de uno superior en caso de parentesco (inciso 7), haber contraído matrimonio que haga incurrir a la persona en alguna causal de prohibición (inciso 8), haber sido condenado por algún delito con pena de inhabilitación para el desempeño de cargos públicos (inciso 9) y haber sido declarado judicialmente en estado de quiebra o insolvencia (inciso 9). Nótese que este último inciso, establece dos estadios totalmente independientes.
En cuanto a las normas que refieren a aspectos de la vida privada, al igual que la Procuraduría General de la República, la Sala estima que, en principio, no son por sí mismas inconstitucionales ni tampoco implican necesariamente una violación a los derechos de intimidad y libertad de las personas servidoras, ya que ellas están sujetas a mayores cargas, obligaciones y deberes. En ese sentido, este Tribunal comparte lo manifestado por el órgano asesor en lo que refiere a que las personas funcionarias sí ostentan los derechos a la intimidad y la libertad, pero que su umbral es diferente del que ampara al ciudadano que no ha asumido la condición y la responsabilidad de quien tiene un cargo público.
No obstante, a los efectos de resolver esta acción, es preciso analizar si la declaratoria judicial en estado de insolvencia como causal de cese de funciones de cualquier persona servidora judicial, resulta o no contraria al Derecho de la Constitución.
El supuesto bajo examen está regulado expresamente de la siguiente manera:
“Artículo 26.- En cumplimiento de las condiciones y procedimientos que establece esta Ley, las funciones de los que sirven puestos judiciales cesan por:
(…)
De acuerdo con la simple lectura de la norma, cualquier persona servidora judicial, en el momento en que es declarada judicialmente en estado de insolvencia, tiene que ser cesada de sus funciones. Es decir, no se otorga al operador del derecho tenga algún margen de valoración de las circunstancias.
En ese sentido, tal y como lo expone la Procuraduría General de la República, la conducta prevista en la norma (insolvencia) tiene una consecuencia gravosa (cese del nombramiento), por tanto le resultan aplicables los principios constitucionales de razonabilidad y proporcionalidad, sobre los cuales este Tribunal ha establecido los parámetros que permiten su análisis.
La Sala, mediante sentencia n.o [Valor 084] de las 12:06 horas de 2 de octubre de 1998, dispuso:
“IX.- Sobre el principio constitucional de razonabilidad. 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.
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 inidoneidad 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." (Sentencia número [Valor 085], de a las dieciséis horas con treinta y tres minutos del quince de diciembre de mil novecientos noventa y ocho)”. () Posteriormente, la Sala, mediante la sentencia n.o [Valor 111] de las 16:31 horas de 21 de marzo de 2012 (A Calzada (VS), LP Mora (VS), G Armijo, F Cruz, F Castillo (VS), P Rueda y R Guerrero), precisó los alcances del principio de razonabilidad, en los siguientes términos:
“V.- LA APLICACIÓN DEL PRINCIPIO DE RAZONABILIDAD. Este denominado principio en realidad constituye un “test de razonabilidad”, un protocolo tendente a objetivizar, en cierto grado, el proceso reflexivo mediante el cual el juzgador llega a concluir que determinada medida es irrazonable o desproporcionada. “Qué es razonable” es ciertamente un asunto de apreciación que, sin embargo, se puede y debe argumentar para que resulte al menos plausible. De lo que se trata es de plantear una metodología de aplicación de tal principio, que resulte útil para exponer los argumentos utilizados para calificar algo como razonable o no . Dicha metodología contiene los siguientes elementos: a) la legitimidad , en el sentido de que la medida no violente de manera evidente algún mandato legal jerárquicamente superior; b) la adecuabilidad, en tanto la medida sirva efectivamente para alcanzar el fin pretendido; c) la necesidad implica que entre varias medidas adecuadas, se debe escoger la menos lesiva; y d) la denominada “proporcionalidad en sentido estricto” , que obliga a que desde ninguna circunstancia se vea afectado el contenido esencial de un derecho constitucional en un proceso de ponderación normativa.
Se aclara que para el sector doctrinario mayoritario, el elemento legitimidad es concebido más bien como un presupuesto. Este protocolo se aplica por fases, de manera que si el examen de una primera fase es insatisfactorio, resulta innecesario proseguir con el estudio del resto de aspectos, aunque, en algunos casos, para mayor contundencia del fallo se puede ahondar en ello”.
Así, de acuerdo con la jurisprudencia de la Sala, un acto limitativo de derechos (como lo sería el cese de funciones de una persona servidora pública por haber sido declarada judicialmente en estado de insolvencia) es razonable cuando cumple con una triple condición: necesario, idóneo y proporcional. Asimismo, para tales efectos, también debe superar satisfactoriamente los elementos del test de razonabilidad: legitimidad, adecuabilidad, necesidad y proporcionalidad en sentido estricto.
Al respecto, es necesario señalar que el artículo 26 de la Ley Orgánica del Poder Judicial establece supuestos bastante disímiles entre sí como causales para el cese de las funciones de las personas que sirven en puestos judiciales, por lo que no se puede hablar de alguna finalidad unívoca de ese ordinal. Ahora, propiamente del inciso 9 de ese numeral, se observa que en él se incorpora tanto la condenatoria por un delito que merezca la pena de inhabilitación para el desempeño de cargos públicos, como la declaratoria judicial en estado de quiebra o insolvencia. No quedan dudas de que la primera parte responde a la pena de un delito por lo que se configura una imposibilidad material de ejercer el cargo; sin embargo, el hecho de haber sido declarado judicialmente en estado de insolvencia, no justifica por sí mismo y de manera general, el cese de funciones de cualquier persona funcionaria del Poder Judicial.
En cuanto a la finalidad de esta última causal, las partes plantean tres posiciones en esta acción:
1)La parte accionante sostiene que en el expediente legislativo, con ocasión de la modificación que dio origen a la redacción del inciso
2)La Vicepresidenta de la Corte Suprema de Justicia aduce que, según la discusión que se dio en instancias legislativas cuando se analizaba la reforma general a la Ley Orgánica del Poder Judicial, el ex Magistrado Luis Paulino Mora Mora señaló que “los empleados judiciales deben ser protegidos con cierta confianza de parte del público porque al final de cuentas somos los encargados de resolver toda clase de discordia que existe entre la ciudadanía y el Estado y dentro de las instituciones del Estado, es por eso que se ha estimado que la persona que está ahí declarada insolvente, hay una cierta pérdida de confianza para con él, dado que no ha podido manejar sus haberes económicos…”. Acota que lo anterior se encuentra dentro de la potestad disciplinaria que tiene el Poder Judicial respecto a sus servidores y servidoras, la cual es necesaria como un instrumento de garantía al ciudadano de que recibirá un servicio público de calidad, ágil, efectivo y eficaz, dotado de una organización adecuada y de personas servidoras judiciales altamente calificadas para el desempeño de sus labores.
Explica que no se sanciona un mero peligro o simple riesgo por aspectos de mera conveniencia judicial, en virtud de que la norma está prevista para cuando en sede judicial se decrete la declaratoria de quiebra o insolvencia, o sea hay todo un proceso judicial en el que se discuten cuestiones relacionadas con los incumplimientos de las obligaciones crediticias asumidas por la parte deudora y concluyen en esa declaratoria; además de la imposición de una serie de medidas o restricciones para que la persona pueda solucionar esa situación. Agrega que el legislador estimó que lo expuesto implica una situación de desconfianza y buscó la probidad de la persona servidora judicial para tener certeza de que es responsable con sus obligaciones tanto laborales como en su vida privada. Asevera que la imposición de este tipo de sanciones tiene un alcance absoluto del principio de legalidad por incurrir en conductas prohibidas por una norma, lo que no es consecuente con los alegatos de la accionante cuando afirma que la norma permite sancionar un mero peligro o un simple riesgo.
3)La Procuraduría General de la República manifiesta que del análisis del expediente legislativo, se desprende que la intención de la norma impugnada siempre fue declarar una "pérdida de confianza" del funcionario judicial “que no ha podido manejar sus haberes económicos y eventualmente va a tener disposición de manejar los haberes económicos de la ciudadanía" (ver manifestaciones del Magistrado Luis Paulino Mora a folios [Valor 075] y [Valor 076] del expediente legislativo)”. Menciona que la intención era dirigir la norma a los funcionarios que administraban justicia o que, por la condición de su puesto, debía exigírseles un adecuado manejo de sus haberes personales.
Con base en lo anterior, se puede concluir que no se acredita una finalidad del todo clara sobre la incorporación de la declaratoria judicial en estado de insolvencia como causal automática de cese de funciones de cualquier persona servidora judicial. Si bien no resultaría ilegítimo imponer esta causal a determinados puestos del Poder Judicial debido a las funciones que realizan, no se aprecia alguna justificación objetiva que sustente el alcance genérico que se da al inciso. Nótese que, en las discusiones legislativas a las que hace referencia la accionante y que son retomadas parcialmente por la Vicepresidenta de la Corte Suprema de Justicia, se hace referencia a una “hay una cierta pérdida de confianza para con él [refiriéndose al empleado judicial encargado de resolver discordias] , dado que no ha podido manejar sus haberes económicos”; sin embargo, no consta alguna justificación expresa sobre alcance general de la causal y no valoración de circunstancias concretas.
En adición, la Sala comparte la posición de la Procuraduría General de la República en tanto considera que la declaratoria judicial en estado de insolvencia, para constituir una causal válida de cese de funciones, debería tener alguna repercusión en el Poder Judicial o en la confianza que se tenía sobre la persona funcionaria, lo que implica sin lugar a dudas tomar en consideración la naturaleza de los puestos y la posibilidad de valorar eximentes o atenuantes que hayan concurrido en el motivo de la declaratoria.
Sobre este último punto, si bien la declaratoria judicial en estado de insolvencia es un aspecto que puede ser objeto de interés en una relación de empleo público, esta no puede contemplarse en términos absolutos. Por ejemplo, existe la posibilidad de que, por alguna situación ajena a la persona servidora judicial, tal declaratoria no responda a un mal manejo de su patrimonio, sino ser consecuencia de deudas contraídas para atender alguna enfermedad o emergencia, o bien se deban a razones de fuerza mayor. Además, podría darse el caso en el que las funciones de la persona servidora judicial no pongan en riesgo ni afecten al Poder Judicial.
Entonces, si la consecuencia de la causal es tan grave (cese de funciones) y no existe alguna justificación que extienda su aplicación a cualquier funcionario del Poder Judicial (sin siquiera otorgar posibilidad de demostrar la falta de peligro o afectación, o bien, la concurrencia de eximentes o atenuantes), se hace evidente la transgresión a los principios de razonabilidad y proporcionalidad. En ese sentido, a priori no se acredita la necesidad (que exista base fáctica que haga preciso proteger algún bien o conjunto de bienes mediante la adopción de una medida), idoneidad (que la restricción adoptada cumpla con la finalidad de satisfacer la necesidad detectada) y proporcionalidad (que la limitación no sea de entidad marcadamente superior al beneficio que se pretende obtener en beneficio de la colectividad) del acto limitativo de derechos. Así, con la aplicación del test de razonabilidad, si bien no aprecia una violación evidente a la legitimidad, el examen sobre la adecuabilidad, necesidad y “proporcionalidad en sentido escrito” no arroja un resultado satisfactorio, ya que respectivamente no se constató:
En adición, se comparte el análisis que hace la Procuraduría General de la República, al señalar que, a partir del principio de razonabilidad y proporcionalidad, cualquier consecuencia gravosa en la esfera del individuo, debe constituir una medida estrictamente necesaria para alcanzar el objetivo buscado y que el principio de proporcionalidad requiere la previa fijación por parte del legislador de los límites dentro de los cuales el operador jurídico se podrá mover para la interpretación de la norma en atención a las circunstancias concretas. Asimismo, tal y como lo expone el órgano asesor, la autoridad administrativa debe contar con un margen de discrecionalidad otorgado por el legislador para garantizar que la consecuencia gravosa únicamente se aplique cuando esta sea razonable y proporcional a la causa de origen. Precisamente, la redacción actual de la norma no admite diversos tipos de interpretación, sino que su contenido preceptúa necesariamente que se le aplique a cualquier persona que cumpla en ese supuesto; es decir, el problema no se deriva de una aplicación incorrecta de la norma sino en su aplicación en los términos previstos por el legislador, lo cual no admite, como ya se dijo, margen alguno a una hermenéutica que atempere su alcance.
Por lo expuesto, procede la declaratoria de inconstitucionalidad de frase “ o insolvencia” contemplada en el inciso 9) del numeral 26 de la Ley Orgánica del Poder Judicial, por resultar contraria a los principios de proporcionalidad y razonabilidad.
Al existir suficientes razones para declarar la inconstitucionalidad de la referencia a “ insolvencia” del inciso 9 del numeral 26 de la Ley Orgánica del Poder Judicial, deviene innecesario pronunciarse sobre el resto de reclamos, tal como desde un inicio ha sido la tesis de esta Sala en cantidad de asuntos (ver sentencias números [Valor 086], [Valor 087], [Valor 088], [Valor 089] , [Valor 090] , [Valor 091], entre otras). ” Finalmente, no está de más recordar que el Poder Judicial cuenta con un acervo normativo para abordar el incumplimiento injustificado de las obligaciones y compromisos financieros que comprometan el buen servicio público por la magnitud del riesgo o la buena imagen de la institución. Tales casos se pueden encausar a través de procedimientos disciplinarios con las consecuencias que el ordenamiento establezca según las circunstancias, elementos probatorios y valoración jurídica en la situación particular. En tal sentido, por ejemplo, el ordinal 192 inciso 9 y el numeral 194 de la Ley Orgánica del Poder Judicial disponen:
“Artículo 192.- Se consideran faltas graves:
(…)9.- El no pago injustificado de una obligación de crédito, que deba atender como deudor principal y se esté cobrando en la vía judicial.
Artículo 194.- Cualquier otra infracción o negligencia en el cumplimiento de los deberes propios del cargo, no prevista en los artículos anteriores, será conocida por los órganos competentes, a efecto de examinar si constituyen falta gravísima, grave o leve, con el objeto de aplicar el régimen disciplinario. Para ello, se tomarán como referencia las acciones señaladas en los artículos anteriores”.
VI.Documentación aportada al expediente . Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión N° 27-11 del 22 de agosto del 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión N° 43-12 celebrada el 3 de mayo del [Valor 027] 12, artículo LXXXI.
Por tanto:
Se declara parcialmente con lugar la acción por violación a los principios de proporcionalidad y razonabilidad. En consecuencia, se declara inconstitucional la frase “o insolvencia” contenida en el inciso 9 del artículo 26 de la Ley Orgánica del Poder Judicial. La sentencia tiene efectos declarativos y retroactivos a la fecha de vigencia de la ley anulada, sin perjuicio de derechos adquiridos de buena fe. En cuanto a la acusada transgresión del numeral 12 del mismo cuerpo normativo se declara inadmisible la acción. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese este pronunciamiento a la parte accionante, al Procurador General de la República y al Presidente de la Corte Suprema de Justicia.
Fernando Castillo V.
Paul Rueda L.
Nancy Hernández L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ronald Salazar Murillo *HD43IVXXEHFK61* Sur, Calle Morenos, 100 mts.Sur de la iglesia del Perpetuo Socorro). Recepción de asuntos de grupos vulnerables: Edificio Corte Suprema de Justicia, San José, Distrito Catedral, Barrio González Lahmann, calles 19 y 21, avenidas 8 y 6
Document not found. Documento no encontrado.