1.  The Republic of Costa Rica is a constitutional democracy with the 1949 Constitution as the supreme law; any law or act that is contrary to the Constitution is null and void.¹

2.  Costa Rica uses a presidential form of government with attenuated powers granted to the President; many presidential powers are shared with the Government ministries and the Government Council.

3.  The 1949 Constitution deliberately diminished the powers of the presidential office, in part by creating a series of autonomous state agencies directly responsible for the administration of key areas of the economy and social policy. Based on the Uruguayan module, these institutions were designed to protect key sectors of the economy and social programs from retrenchment by future governments that might be hostile to their goals.²

4.  Costa Rica is a unitary state with a 57-member unicameral Legislative Assembly. Deputies are elected for four-year terms and can only seek re-election after sitting out a term. Most deputies are never re-elected.

5.  All 57 deputies stand for election concurrently, using closed-party lists and a modified proportional representation electoral system that uses the geographical boundaries of the country’s seven provinces to create seven multi-member electoral districts.

6.  The President and the two Vice-Presidents are elected on a single ticket on the first Sunday in February (Article 133 of the Constitution) at the same time as deputies in the Legislative Assembly. A successful presidential ticket must receive at least 40 per cent of the votes cast to prevent a run-off election between the top two tickets on the first Sunday in April in the same year of the first-round election (Article 138 of the Constitution). In the permanent absence of a sitting President, the Vice-President who was nominated first would replace the President. In cases of temporary absence, the President can pick which Vice-President will replace them (Article 135 of the Constitution).

7.  The ‘organization, administration, and supervision of acts pertaining to suffrage’ are exclusively granted to the Supreme Elections Tribunal (TSE), a constitutionally created fourth branch of government (Article 99 of the Constitution) (see Part III.D below).

8.  The judicial branch, constitutionally guaranteed no less than six per cent of the state’s annual budget, is administered by the Supreme Court of Justice and by the lower courts established by law (Article 152 of the Constitution). Supreme Court justices are elected for eight-year terms by two-thirds or more of the votes cast by the Legislative Assembly. After the eight-year term, unless at least two-thirds of deputies vote not to renew a justice, the justice is automatically re-elected for another eight years (there are no limits on reelection). Justices can only be disciplined and/or removed by their peers.

9.  The Supreme Court of Justice is divided into four chambers: three are Cassation superior courts, while the newest chamber, a seven-member Constitutional Chamber created in 1989, hears all constitutional questions with original jurisdiction. The Constitutional Chamber’s holdings are binding and set precedents. Since its creation, the Chamber has become a powerful, open, legal opportunity structure that uses a very broad notion of standing and employs few legal formalities. To date, it has decided more than 400,000 cases.³

10.  Costa Rica includes seven administrative provinces that are divided into 82 cantons, and subdivided into districts (Article 169 of the Constitution) that are controlled by two municipal bodies: a municipal council (concejo municipal) that acts as an assembly a deliberative body composed of the canton’s elected representatives, and an executive body led by a mayor (alcalde or alcadeza municipal). Municipal governments can pass by-laws, which must conform with national law. All taxes levied by municipal governments require Legislative Assembly approval by a simple majority vote.

11.  The Constitution prohibits the maintenance of a standing army.

12.  When an emergency occurs, the President may declare it in any part of the country. The National Emergency Commission (CNE) directs the response to the event and coordinates all efforts by public and private institutions. The declaration of emergency will allow the institutional structure to take action and respond to the emergency, providing protection to the population and property. The President decides primarily over institutional conflicts within the executive branch of government, however. If the discussion is of a broader constitutional nature, the Constitutional Chamber decides (see Part II.C below).

13.  The country’s response to the pandemic has not altered the constitutional structure of the state. Some Government restrictions on travel within the country, prohibitions on public events, and limitations on business activities, though, have caused economic problems and social tensions. Because the country depends heavily on tourism, when it fell after travel restrictions unemployment numbers quickly grew.⁴

14.  Costa Rica officially incorporated the World Health Organization’s (WHO) International Health Regulations 2005 through Executive Decree No 34038.^5.

15.  The Constitution permits declarations of states of emergency in the case of war, internal turmoil, or public catastrophe, and grants the Government increased budgetary flexibility, as well as the power to suspend individual rights and guarantees.⁶ If the executive suspends those constitutional rights and guarantees, the Legislative Assembly must vote to support the suspension with a two-thirds majority within 48 hours of the declaration.

16.  On 6 March 2020, the first Covid-19 case surfaced in Costa Rica, and on 11 March 2020 the WHO declared the disease to be a pandemic. On 16 March 2020, the President issued a Declaration of National Emergency in response to the epidemiological alert issued by the WHO.⁷ In earlier decisions, the Government had already activated emergency epidemiological protocols that relied on the WHO’s epidemiological alert system to ban mass gatherings.⁸ Declarations are supported under the National Law on Emergency and Risk Prevention, and endorsement by the Assembly is not required.

17.  The Constitution delineates extensive individual rights and guarantees (Articles 20–49), expansive social rights and guarantees (Articles 50–74), and articles that foster state intervention in the economic, social, and political life of the country (Articles 45–46, 50). No explicit constitutional right to health exists in the Costa Rican Constitution; it was rather constructed through the Constitutional Chamber’s jurisprudence over the course of many decisions.⁹ The right to health relies on Article 21 (protection of human life) and Article 73 (social security protection) of the Constitution, and is strengthened by the Court’s recognition of international human rights instruments signed by the Government as having ‘an almost supra constitutional value.’¹⁰ Article 1 of the Law of the Constitutional Jurisdiction states that the Constitutional Chamber must ‘guarantee the supremacy of the constitutional rules and principles, and of the international or community law enforced in the Republic, its uniform interpretation and application, as well as the fundamental rights and freedoms enshrined in the Constitution or in the international human rights instruments enforceable in Costa Rica’. Article 48 of the Constitution establishes that everyone can claim protection for constitutional and human rights alike.¹¹

18.  To date, the Government has not suspended any constitutional rights in response to the pandemic but has instead sought to manage the health crisis with targeted decrees that rely on the Ministry of Health’s powers to restrict people’s movement.

19.  Some police actions that impinged on people’s freedom of expression and protest have been successfully challenged before the Constitutional Chamber (Decision 2020-14944),¹² but to date there have been no successful legal challenges to the central tenets of the Government’s restrictions.

20.  International law plays an important role in Costa Rica’s legal order and some international agreements have been relevant to the state’s response to the emergency and management of the crisis. As a monist state, international law acquires the status of domestic law once the executive branch obtains the legislative branch's approval of an international agreement. For a country with a constitutional prohibition on a standing army, diplomacy and international law have been important security assets. A 1968 amendment of Article 7 of the Constitution ended any discussion on the hierarchy and authority of international agreements, establishing that treaties enjoy superior authority over the laws. The amendment eliminated conflicting language over the Nation’s sovereignty and marked its authority once international agreements were approved by the Legislative Assembly and promulgated by the executive branch.

21.  Costa Rica is part of the WHO (since 1948) and the Pan-American Health Organization (since 1947) and applies the International Health Regulations 2005 of the WHO. It is a member of the United Nations and the Organization of American States and submits to the jurisdiction of the Inter-American Court of Human Rights, which is in San Jose.¹³

22.  The Costa Rican state has not opted out of or denounced any treaty during the Covid-19 emergency.

23.  Costa Rica has a universal, state-organized health care system that effectively gives the executive branch of government a prominent role in the response to health crises. Thus, laws that pre-date the Covid-19 pandemic already allowed the delegation of many of the powers necessary to deal with national emergencies and disasters to the executive branch. For example, the General Law of Health and the National Law on Emergency and Risk Prevention (Law No 8488)¹⁴ previously granted many of the powers used by the Ministry of Health and the National Emergency Committee (CNE) to combat the Covid-19 pandemic (see Part II.C below).

24.  The Government’s declaration of a national emergency in response to the Covid-19 pandemic relied on the Organic Law of the Ministry of Health (1973),¹⁵ the General Law on Health (1973),¹⁶ and the National Law on Emergency and Risk Prevention (Law No 8488)¹⁷ which was built on two previous laws that were promulgated in response to major national disasters. The first came in response to major eruptions of the Irazú and Arenal volcanos in the 1960s. Law No 4374 of 1969 created the Civil Defense Office,¹⁸ and, in 1999, Law No 7914 created the precursor of the CNE.¹⁹

25.  Previously declared health-related emergencies over the last decades also helped establish protocols and institutional structures.²⁰ In 2016, for example, the Government declared health emergencies in response to dengue, chikungunya, and Zika outbreaks in several cantons across the country; these declarations followed two previous dengue-related emergencies in 2007. In 1998 and 2005, aquifer contaminations in the areas of Santa Bárbara, Belén, and Colima prompted health emergency declarations. Interestingly, unlike the currently declared state of emergency, no previous emergency measures were challenged in court. However, no other emergencies had ever restricted individual rights.

26.  The executive branch’s emergency measures are necessarily temporary (under Law No 8488) and contain three distinctive phases: (a) response, (b) rehabilitation, and (c) reconstruction (Article 30 of Law No 8488). To end a state of emergency, the executive must issue an official statement attesting that all phases of the emergency are completed, which must be supported by a technical opinion issued by the relevant commission (Article 37 of Law No 8488). This limits the ability of politicians to act on political expediency rather than science. The law provides a five-year framework for the reconstruction and recuperation of the affected areas, infrastructure and systems of production, services, and goods.

27.  Ample discretionary powers were granted by the law so that specialized Government departments and agencies could respond properly to the crisis by implementing public health policies and relevant social and economic measures to combat the pandemic. The Ministry of Health, the CNE, and the Costa Rican Social Security agency (Caja Costarricense de Seguro Social) (CCSS), among others, took major roles in preparing the country for the potentially dire times ahead (see Part II.C).²¹ However, the exercise of these powers should depend on the scientific evidence, real impact and needs of the population, and possibly require the courts to interpret them along with the governmental policy if they extend the five-year framework.

28.  Specific amendments would repair the voids where legislation could not respond properly to the crisis. Decisions on fiscal matters, labour, and availability of funds to the country’s workforce were made in a matter of days to a week and a half (see Part II.C below).

29.  The President, acting in conjunction with the Minister of Health, is responsible for the design of the overarching health policy, which is binding on all private and public health providers. In the case of the Covid-19 crisis, the executive branch also worked in collaboration with the legislative branch when constitutional and legal actions were required. Legislative measures to deal with the economic and labour impacts were taken in tandem, as well as legislation to arrange for budgetary amendments. Some of these measures were approved in record time, showing close collaboration between the branches. Penalties for violations of sanitary orders and vehicle restrictions were stiffened, however the latter infractions were subsequently relaxed.

30.  According to the Law relating to the organization of the Ministry of Health and the General Law on Health,²² the executive branch has the authority to issue and impose its rule-making powers on the country. Executive decrees are general in nature but will also, where applicable, have individual application according to the circumstances.

31.  Existing laws organize and provide the Ministry of Health with the necessary executive decree powers. Hence, the Ministry of Health retains the power to issue health orders that require individuals to observe quarantine and businesses that require health permits to follow the delineated health protocols. The Ministry can impose fines and other penalties on people and businesses that defy its orders.

Acting in conjunction with the President of the Republic and the Ministry of Transportation, the Minister of Health can also impose general orders affecting transportation and other movement restrictions.²³

32.  The National Emergency Committee (CNE) is the agency within the executive branch charged with emergency management and relief efforts. The President exercises authority to appoint its senior officials (ministers, two semi-autonomous senior officials) who work alongside a representative of the Costa Rican Red Cross. The CNE is an instrumental agency created to design overarching policies for the prevention and attention of emergencies and relief for natural and manmade crises. Article 13 of the National Emergency and Risk Prevention Act (Law No 8488) furnishes the agency with independence, providing it with its own financial powers and specifically allocated resources.²⁴

33.  In mid-March 2020, following a CNE recommendation, President Alvarado quickly declared a national emergency. Under Law No 8488,²⁵ such a declaration allows all state agencies and departments to coordinate their actions and permits public resources to be committed to tackle the emergency, including authorizing the transfer of resources from private and public entities to the CNE (Articles 5, 6, 7, and 8 of Law No 8488). The Ministry of Health and the CNE are designated as the guiding agencies that manage the state’s response to the emergency (Article 4 of Law No 8488). One of the initial actions of the CNE was an order for the CCSS to establish contingency measures to preserve the health of the population (Article 4 of Law No 8488).

34.  In emergency and risk management settings, municipal governments follow the CNE and central Government health authorities’ crisis management policy decisions in their respective cantons. Articles 9, 10, 14, and 33 of Law No 8488 establish the principal powers of the CNE and the executive branch’s leadership and coordinating responsibilities.²⁶ Each municipality has a Municipal Committee of Emergencies (CME) which coordinates the policy decisions regarding the emergency through the relevant local level public institutions, non-governmental organizations, and the private sector. Community needs and interests during emergencies are mostly addressed by CNE liaison officers and health authorities. Businesses and other commercial activities within their jurisdictions are only to be authorized under policy decisions of the central Government and after the evaluation of specific protocols by health authorities. Municipalities must submit these protocols to the CNE before they are implemented. Approved protocols at the local level are overseen by municipal and health authorities.

35.  Law No 8488 provides the executive branch with the power to declare a state of emergency, but those declarations are subject to judicial review by the Constitutional Chamber or lower-level courts (Article 29 of Law No 8488). Many measures introduced during the Covid-19 pandemic emergency have been challenged before courts.

36.  In general, the law also provides for rule-making and direction powers. Article 1 of the General Law on Health provides that the health of the population is in the public interest and is protected by the state.²⁷ Article 2 provides the Ministry of Health with rule-making authority through executive regulations and the requisite powers to shape national health policies. These decisions are binding on everyone in the country. Article 169 establishes the general obligation on the population to actively collaborate with health authorities to prevent an epidemic or to manage an existing one. Article 340 affirms the power of the health officials to issue general or specific resolutions that they deem most efficient. Finally, significant fines may be imposed upon people who defy orders of the Ministry of Health or other health authorities (Article 378 and 378 bis of the General Law on Health). These fines imposed by health officials cover confirmed cases and contacts of persons with communicable diseases. Criminal offenses related to the pandemic are administered by the courts.

37.  The Ministry of Health published a series of guidelines and recommendations for citizens, businesses, and Government agencies to fight the Covid-19 pandemic.²⁸

38.  Recommended measures included social distancing and the promotion of work-at-home where possible for public and private sector employees.²⁹

39.  The Government distributed pamphlets and employed institutional websites and other social media in multiple languages to advise the public on good anti-Covid-19 sanitary practices, including hand sanitation, greetings, and sneezing protocols.³⁰ Targeted guides for senior citizens were delivered using telephones rather than social media and senior Government officials deliberately practiced the protocols at press conferences and official events.

40.  These guides and recommendations were not mandatory for citizens but stressed the need for everyone to follow good nutritional and healthy practices for the general good.³¹

41.  At the start of the pandemic, the Government did not mandate that masks be worn, but instead relied on contact tracing to limit the spread of the disease. As the number of cases increased, though, contract tracing became increasingly problematic and difficult to manage. In response, the Government introduced a mask mandate (see Part IV.A.6 below).³²

42.  Although Costa Rica has a presidential system of government, the 1949 Constitution introduced several parliamentary elements, including the legislative power to censure Government ministers. Censuring a senior Government official serves as a political spotlight on a minister’s perceived errors or malfeasance and, by extension, on the President, with the potential effect of undermining his popular support. According to the Constitution, though, censure has no real binding effect on the President or their Government, but is rather a demonstration of the legislature’s moral disapproval.

43.  To date, the legislature has not exercised its power to censure any minister in connection with actions taken in response to the Covid-19 crisis.

44.  The Legislative Assembly can also exert political control through investigative commissions that can call attention to a specific governmental issue or action. To date, the legislature has not initiated any such commission to investigate the executive’s handling of the Covid-19 crisis. At the initial stage of the pandemic, the majority of the political parties regarded the problems caused by the pandemic under a national unity criterion.

45.  The Legislative Commission on income and public spending has oversight over public disbursement,³³ and began an investigation into problems with the purchase of emergency Personal Protective Equipment (PPE) and the extent to which the CCSS procurement procedures were followed. The core of the investigation, though, is about possible corruption rather than public expenditure on combatting the pandemic.³⁴

46.  The Legislative Assembly can also harm or hinder the executive’s agenda through the temporary modification of procedural rules. During the pandemic, the Assembly has used procedure to expedite the passage of bills to amend the national budget and to approve extraordinary budgetary measures to fund anti-Covid-19 programs.³⁵ But the Assembly can also use procedure to thwart the executive’s goals. For example, the Legislative Assembly initially facilitated an amendment to the Traffic Law (Ley de Transito)³⁶ to significantly increase penalties for people who ignore vehicle restrictions. Subsequently, in response to the economic deterioration and impact on working people, the Assembly reversed course and amended the law again to loosen the restrictions, effectively undermining the executive’s original order.³⁷

47.  While the Legislative Assembly has, in theory, the constitutional power to rescind certain executive powers, it has not used that power to remove any of the administrative functions central to the fight against Covid-19. Because the Constitution grants the executive branch the power to oversee the proper operation of administrative services and agencies, there is some debate on the constitutionality of the legislative branch exercising this power.³⁸

48.  The pandemic’s impact on the functioning of the Legislative Assembly has been minimal. In March 2020, there was a very brief break in its regular operations when the Assembly was relocated to a nearby museum so that its meetings would comply with the social distancing protocols. The Assembly’s plenary sessions were held in a physically distanced manner, while political party caucus meetings were moved online.³⁹ On 11 May 2020, the legislators reconvened in the old Legislative Assembly and followed new health protocols that allowed the Legislative Assembly to meet in person.⁴⁰

49.  On 7 October 2020, after a very long delay, a much larger, new parliament building was opened that provided all legislative committees the necessary space to work. However, on 20 October 2020, an outbreak of Covid-19 in the Assembly interrupted the committees’ sessions for nine days.⁴¹

50.  In mid-July 2020, parliamentary rules were modified to permit virtual sessions of the Legislative Assembly that allowed synchronous deliberation and public participation.⁴²

51.  Each deputy was provided with the necessary communications equipment and during sessions had to remain visible on camera and be available and attentive or they would be recorded as absent. Voting tallies were registered using digital technology. In the event of technological failure, voice votes would be recorded alongside the name of the corresponding deputy. All other rules, including quorum requirements, remained the same as before the pandemic.

52.  Once these parliamentary rules were changed, there were no further virtual meetings of Congress.⁴³ Although some deputies pushed for more virtual sessions,⁴⁴ a required two-thirds super-majority vote made it very difficult to initiate further virtual sessions.

53.  The political discourse in Costa Rica has not been disrupted by the pandemic: there are no constraints on the press, opposition parties, or popular movements.

54.  The Plenary of the Supreme Court took immediate action to limit the harm done by the pandemic, including allowing most judicial employees to work from home, while maintaining the Courts’ operational continuity. The judicial branch adopted protocols that allowed courts to hear most types of cases, including civil, commercial, labor, family, criminal, traffic violations, alternative resolution and restorative justice, and disciplinary matters.⁴⁵ These measures were designed to improve access to the courts while helping to keep parties and judicial staff safe from Covid-19.

55.  Costa Rica already used an easily accessible information technology system that permitted both the lodging of civil and criminal complaints and the conduct of hearings. The whole court system uses ‘Gestión en Linea’ (online gestion) that allows all parties to request an access code so that they can submit petitions, upload evidence, other records, etc.⁴⁶ This widely used system was in place before Covid-19, and it has played an important role during the pandemic. These systems were adopted as part of a strategy to increase the judiciary’s response to the demand for justice in a highly litigious country.⁴⁷

56.  The Plenary of the Supreme Court took important steps to use video conferencing in prisons to avoid a further backlog of criminal hearings that began with an earlier suspension of cases due to a measles outbreak in prisons. The Constitutional Chamber ordered the Ministry of Justice and the Ministry of Health to create a protocol to ensure that defendants could be present at their criminal trials and/or hearings via digital technology.⁴⁸ The Court required that a defendant have the ability to video conference and/or directly communicate with their legal representation; failure to comply with these requirements would be deemed a breach of due process.

57.  The courts play an important role in reviewing law issued by other parts of the state. The National Law on Emergency and Risk Prevention provides that any state of emergency declaration is reviewable by ordinary courts and by the Constitutional Chamber.⁴⁹

58.  For its part, the Constitutional Chamber was designed to be informal and to facilitate individual claims in a low cost, highly accessible manner. The Court accepts complaints with few legal formalities, without fees or the need for lawyers or legal authentication, and it uses a very broad definition of standing. Anyone in the country can submit a case 24-hours a day, seven days a week, in the form of handwritten letters, telegrams, faxes, or emails.⁵⁰ That is, people can file a case with the Constitutional Chamber as a court of first instance, using existing digital technology without having to physically visit the court’s buildings.

59.  The Constitutional Chamber has, to date, dismissed four petitions to review the state of emergency, largely due to the petitioner’s lack of legal standing.⁵¹ Other cases challenging the state of emergency were filed as amparos (writs of protection) or habeas corpus. In all these cases, the Constitutional Chamber has rejected the challenges and upheld the health authority measures as constitutional.

60.  No election has been suspended due to the Covid-19 pandemic. On 2 February 2020, right before the first Covid-19 cases were reported in Costa Rica, municipal elections took place as scheduled. The results were officially announced one day after the President declared the national emergency.

61.  In Costa Rica, political parties that participate in municipal or national elections are entitled to a state contribution to cover part of their campaign expenses. To receive their state contribution, political parties must disclose their campaign expenses to the Supreme Electoral Tribunal (TSE) within 90 days of the official announcements of the election results. Two political parties, in separate claims, argued that the pandemic made it too difficult to gather and present the necessary documentation before the deadline. In response, the TSE suspended the deadline and accepted the argument that two Government resolutions (on 23 March and 30 April 2020)⁵² urged people to stay home, thus making the task of filing documentation with the TSE too onerous.⁵³ Congress amended the law to ease the economic burden from the state contribution, to extend the legal terms of the political party steering bodies, and to allow virtual or face-to-face meetings following the Ministry of Health protocols.⁵⁴

62.  Separately, the TSE waived the time limits for collecting signatures for two pending referenda during the pandemic.⁵⁵ Both referenda sought to open the oil market, currently in the remit of the state-owned company RECOPE. On 2 April 2020, the TSE suspended all referenda.⁵⁶

63.  General elections for all 57 legislative deputies and the executive (the President and the two Vice-Presidents) were scheduled for 6 February 2022. At the time of writing, the election schedule has not been affected by the pandemic.

64.  Before the general elections, though, political parties must select their candidates. According to the Electoral Code, they are free to choose how they select those candidates.⁵⁷ Many hold primary elections, others hold closed party conventions, while the rest use an election process through the national election registry.

65.  The Partido Liberación Nacional, a major, center-right, national political party, suspended its internal electoral process scheduled for 1 March 2021 after a consultation with the Minister of Health. The party’s central concern was how to conduct an election while adhering to appropriate physical distancing protocols for voters and poll workers. The Minister of Health shared the party’s concern over mobilizing the electorate before the country had reached herd immunity and advised that it would be reckless for political parties to engage in a traditional campaign season.⁵⁸ Consequently, the TSE and the Ministry of Health released protocols for the conduct of elections during the Covid-19 emergency.

66.  Following issuance of these protocols, the Ministry of Heath published national guidelines for political party conventions and partisan electoral-related activities,⁵⁹ that went beyond the TSE’s initial mandatory guideline prohibiting mass political campaign events.⁶⁰

67.  The electoral process to choose each party’s presidential candidates then began, following the new protocols.

68.  The CNE’s role and legal position within the executive branch is defined in the National Law on Emergency and Risk Prevention.⁶¹ It could be argued that being so close to the office of the Presidency gives the President undue influence over the CNE. However, as the CNE is a technical agency, even within the executive branch of government, it still enjoys the highest legal level of political and financial independence, with firewalls to prevent ‘political caprice’. The CNE is an agency-like institution that is provided with its own legal capacity, independence, resources, etc, allowing it to make decisions based on technical merits and to share that advice based on scientific and technical data with other Government agencies. The National Law on Emergency and Risk Prevention establishes that CNE decisions concerning risks, disasters, and imminent dangers are mandatory and binding on public officials, the private sector, and the general population.⁶² These decisions are required to have a scientific and technical basis.

69.  In addition, the General Law of the Public Administration, another overarching legal instrument, governs the executive branch and all its ministries, autonomous agencies, and other administrative business of the state conducted by all branches of government. This law is concerned with much of the protections for citizens, the legal procedure for the entire public administration, and enshrines many important public law principles. For example, Article 16 of the General Law of the Public Administration establishes a major legal principle of public administration while the latter exerts discretionary power over citizens. The provision unequivocally states that the Government cannot dictate acts that are contrary to the unambiguous axioms of science and of technology.

70.  The Article 16 principle gives support to Government measures that contain proper scientific advice or that find adequate and reasonable support in principles of justice and logic, or advance a public interest. It also provides the proper language to strike down measures that lack proper scientific justification in the administrative-contentious courts or the Constitutional Chamber.

71.  Costa Rica enjoys one of the highest levels of press freedom in the Americas.⁶³ This has not changed during the pandemic.

72.  One controversy regarding press freedom arose in the context of Government press conferences concerning the handling and scale of the pandemic. While the Institute of Press and Freedom of Expression of Costa Rica (Instituto de Prensa y Libertad de Expresión de Costa Rica) concluded these events offered relevant information,⁶⁴ others argued that, by restricting questions from journalists and limiting the number of face-to-face press conferences at the beginning of the crisis, the Government was restricting press freedom.⁶⁵ The Government encouraged questions via social media or other means, and then hand-selected which ones would be asked by a moderator at the official press conferences. It did not allow follow-up questions. Later, this changed, and all journalists were allowed to participate in the daily, live, face-to-face press conferences. Journalists were also allowed to ask follow-up questions to the various Government officials present.

73.  Transmission of the information regarding the Covid-19 status of the country and the different measures adopted by the Government were transmitted to the public through national, international, and regional television outlets, radio stations, official digital media, and private websites.

74.  Once the spread of the disease decreased, the daily press conferences were reduced to twice weekly.

75.  No press laws have been suspended in response to the Covid-19 pandemic.

76.  The Ombud’s office (Defensoría de los Habitantes) is an independent watchdog agency concerned with Government actions and/or omissions that might violate citizens’ human rights. Its 2019–2020 Annual Report details the different areas in which it exercised its vigilance and its oversight regarding measures taken to combat the Covid-19 pandemic.⁶⁶ Major areas of concern include equal access to health care facilities and services, and sufficient and effective protective gear for health employees during the pandemic. The report focuses particularly on vulnerable populations, including indigent people, prisoners, elderly people in care homes, and detainees in immigration detention centers. It also pays particular attention to the plight of people with disabilities and patients whose treatments were affected because of the Government’s anti-Covid-19 measures. The Office also made relevant information accessible to differently-abled populations including offering information in braille.

77.  The Ombud’s office dialogued with its counterparts across the Central American isthmus to report on problems facing migrants, children, and youth with respect to education and their access to digital education after the Government ordered the closure of schools. It addressed the many problems of the state’s economic aid programs, ‘con vos podemos’ and ‘bono proteger’, for people who lost jobs and/or income due to the pandemic. It also studied and reported on several pandemic-related bills in the Legislative Assembly.

78.  The Comptroller-General of the Republic is the arm of the Legislative Assembly that supervises public spending through audits of public institutions’ expenditures. It has the power to correct and sanction public officials whose institutional expenditures do not comply with the national budget.

79.  The Comptroller-General’s office undertook a number of oversight measures in connection with the governmental response to Covid-19. It examined the financial aid for laid off workers, workers with suspended contracts, and independent workers, and concluded that there were problems for people in accessing the digital platform page and oversight controls.⁶⁷ It also revealed problems in the allocation of pandemic-related finances.⁶⁸ Concerning the national budget for vaccination, the Comptroller office’s audit showed the need to enhance the Government’s budgetary practices, as there was insufficient identification and planning of resources.⁶⁹ Concerning emergency procurement of PPE, it also authorized extraordinary purchases of the Costa Rican Social Security agency for its health workers.⁷⁰

80.  The Costa Rican Government’s approach to the pandemic can be divided into three distinct categories.⁷¹ First, it aimed to protect the population’s health through measures to avoid the spread of the disease, saturation of hospitals, and deaths related to Covid-19. Second, it provided financial relief (bono proteger and burial support)⁷² to people who lost jobs, those with reduced working hours, and/or those who were furloughed while simultaneously allowing businesses to continue operations within the announced restrictions. Finally, it took measures to avoid financial bankruptcy. The following section will address the first of these categories: public health measures.

81.  Starting on 9 March 2020, national level actions (after 2 June 2020 at the regional level) followed ‘the hammer and the dance’ strategy by introducing increased restrictions or relaxing them to help control the spread of the disease and ease the economic burden for thousands of affected families.⁷³ It was later replaced by the ‘Costa Rica Trabaja y se Cuida’ program which focused on balancing socioeconomic interests and individual mobility restrictions for citizens presenting with Covid-19 symptoms or having been in close contact with a Covid-19 infected person that required them to isolate for 14 days.

82.  Most Government public health measures were adopted at the national level through executive decrees and other directives and a series of mandatory orders from the Ministry of Health for the private and public sectors. According to the law, the duration of the state of emergency declaration corresponds to the incidence of the pandemic: if the pandemic were to dissipate or to be under control, the state of emergency would be lifted, or the restrictions loosened.

83.  Government-imposed curfews are not legally permissible. Instead, the Government urged people to stay home and maintain what it called ‘household bubbles’ by means of press conferences, media outlets, and social media, and by private and public sector actors emphasizing its importance to limit the pandemic.⁷⁴

84.  The Government did not impose a general quarantine or isolation order, but people diagnosed with Covid-19 or those who had been in close contact with a Covid-19-positive person were required to isolate and quarantine.⁷⁵ This policy was challenged before the Constitutional Chamber, but the measures were upheld when the Court noted that the Ministry of Health’s isolation and quarantine measures were a lawful exercise of its authority to control the pandemic.⁷⁶

85.  Initial measures included the closure of many businesses and other commercial activities. The Ministry of Health also established measures to limit commercial activity to prevent super spreader events caused by large crowds in public spaces.⁷⁷

86.  Starting on 24 March 2020, executive decrees mandated variable vehicle restrictions that were repeatedly adjusted at both the national and regional level, depending on the severity of the alert level.

87.  The vehicle restrictions exempted certain types of private and Government activities, to allow them to move freely. A key exempted group included senior members of the different branches of Government so that the offices of Government could remain fully functional.

88.  Regarding Vehicular Restriction Decrees, from March 2020 to April 2021, see Table 1 at the end of Part IV.A.1 below.

89.  To minimize the impact of the policies on individual citizens’ liberties, including the freedom of movement, national and regional weekday driving restrictions were only applied to private citizens’ vehicles. People could still travel by public transportation, including trains, buses, and taxis, or by walking or bicycles.

90.  The legality of Government restrictions on private vehicle usage was also challenged before the Constitutional Chamber. But again, it held on 31 March 2020 that Article 95 of the Transit Law for Public Land Roads and Road Safety gave the executive the authority to impose vehicular restrictions to promote public, regional, or national interest.⁷⁸ Thus, the Constitutional Chamber’s decision held that these vehicular restrictions were a valid, constitutional exercise of the executive authority.

91.  On 17 March 2020, the Government enacted measures to restrict international travel that affected Costa Ricans returning home and migrants,⁷⁹ as well as closed the borders to tourists. In parallel, the Ministry of Health issued a decree imposing a mandatory 14-day isolation order on all people entering the country and a separate decree to restrict Central American truck drivers entering Costa Rica.⁸⁰ The restrictions on trucking triggered strong protests by Central American governments and domestic and international transportation organizations.⁸¹ Finally, the Central American Integration System (SICA) issued a joint measure on Biosafety Guidelines for the Central American land transportation sector, for the protection of free trade and the implementation of health measures necessary to promote safer transportation measures among the Central American countries.⁸² The protocol was enforced in Costa Rica after 7 June 2020.

92.  In a related action, the Government threatened to revoke the immigration status of legal immigrants residing in Costa Rica who travelled abroad.⁸³ The threat was largely targeted at Nicaraguan residents in Costa Rica, in response to the failure of the Nicaraguan Government to take significant measures to control the spread of the disease, coupled with the porous border.

93.  Restrictions started on Semana Santa (Holy Week), a major holiday week during which many Costa Ricans travel to the beaches. These restrictions were continued after the holiday period.⁸⁴

94.  Ongoing vehicle restrictions imposed an additional restriction on people’s movement and harmed the immediate economic interests of many businesses, which loudly protested.

95.  The Government initially implemented a strategy called ‘Costa Rica trabaja y se cuida’, based on a system called the ‘Hammer and the Dance’, but it was abandoned in June 2020 because of the severity of its economic impact.⁸⁵ By September, the Government opened the national economy more by identifying any widespread outbreak of the disease in local areas and then targeting its response to those areas.

96.  The National Law on Emergency and Risk Prevention requires a risk and emergency alert system.⁸⁶ In the case of the Covid-19 pandemic, the CNE designed a color-coded alert system that corresponded to the implementation of strict or relaxed measures described in MS-DM-6958-2020.⁸⁷ The specific level of alert corresponds to the scale of the disease incidence in the population, the available capacity of the health facilities, and other factors. The alert levels were as follows:⁸⁸

• •  Green alert: no cases reported.

• •  Yellow alert: moderate level of cases indicating an increase in the spread of the disease with a medium level of hospital occupancy.

• •  Orange alert: an accelerated increase in Covid-19 infections with a high hospital occupancy.

• •  Red alert: extremely high or unavailable hospital occupancy.

97.  When Costa Rica began to re-open its borders to tourists, the Government simultaneously lifted the travel ban on permanent immigrants and imposed a 14-day isolation order for all people arriving in Costa Rica.⁸⁹ The Ministry of Health also imposed a requirement that entrants have a health pass with proof of health insurance, antigen, or PCR viral test, and a QR code as a precondition to enter the country.

98.  Some of these measures were challenged before the Constitutional Chamber, including the restrictions on foreign permanent and temporary residents’ international travel restrictions during the pandemic. The Constitutional Chamber held that permanent residents who left the country during the ban had been properly informed and had voluntarily signed the re-entry ban, thus the health measures restricting travel were lawful.⁹⁰

99.  On 10 March 2020, the Ministry of Health issued a decree prohibiting all mass events planned by public and private entities.⁹¹ However, to avoid a total stop to social and economic activity, other essential businesses were kept functioning at a 50% capacity.⁹² All other businesses would have to wait to regain commercial activity.

100.  On 1 May 2020, the Government began a gradual opening of different commercial activity.⁹³ It also announced that such measures were under evaluation every two weeks, to determine whether it was necessary to increase restrictions or keep them relaxed. Furthermore, other activities were added and on 2 December 2021 an executive decree relaxed them, whereas the capacity can be determined through individual resolutions.⁹⁴

101.  Apart from a list of exempted essential businesses (for example, food and drug stores),⁹⁵ Government measures in effect closed a large portion of the country’s businesses.

102.  All places requiring a Ministry of Health-issued permit in order to operate were closed to the public by the Ministry Resolution DM-RM-0852 2020, and subsequent amendments. This closure order included all places of worship and churches.⁹⁶

103.  Businesses requiring state-issued health permits to conduct their business are bound by emergency health measures.⁹⁷ Failure to comply with the measures could result in administrative sanction and/or possible temporary closure of the business.

104.  On 16 March 2020, a joint resolution from the Health and Education ministries suspended all classes in the private and public school systems.⁹⁸ Virtual classes replaced face-to-face classes, but not without difficulties for many students, due to the digital gap noted by the Ombud’s office (see Part III.G above). Students who usually received food assistance at school instead received it at home, with the aid being given directly to the affected families.⁹⁹

105.  Directives from the Ministry of Health closed most municipal parks starting on 19 March 2020.¹⁰⁰ On 2 April 2020, the Minister of Health issued an order closing all commercial activity with some targeted exemptions,¹⁰¹ including medical and veterinarian services, supermarkets and grocery stores, banks, gas stations, undertaker services, etc, but with reduced capacity. Hotels were shut unless they served foreign tourists, flight crews, and other emergency-related personnel.

106.  Starting on 1 May 2020, all commercial activity was permitted on weekdays from 5 am to 7 pm,¹⁰² but had to remain closed over the weekends.¹⁰³

107.  On 29 April 2021, the Ministry of Health announced that, in response to a sudden spike in Covid-19 cases that was overwhelming hospital capacity, a tightening of restrictions would begin in early May 2021.¹⁰⁴ The restrictions were later amended according to the color of the alert level and after the implementation of a reopening strategy (see Part II.D above).

108.  Social distancing and work-from-home was promoted by the Government for both the public and private sectors (see Part II.D above).¹⁰⁵ The Government issued a series of recommendations on how to interact in public places, keep public spaces clean, etc. It encouraged people to follow the advice from health authorities in public places. Hence, it advised people to avoid personal contact with others outside of one’s household bubble. Physical contact should always be avoided by keeping a minimum distance of 1.8 metres between persons.

109.  Others measures restricted peoples’ mobility, prohibited mass gatherings, and implemented social distancing practices. Government publicity campaigns focused on encouraging the proper use of hand sanitizer, protocols for sneezing and coughing, non-touching forms of greeting, and other personal health-related precautions. Special attention was paid to outreach programs for vulnerable populations.¹⁰⁶

110.  The use of face coverings and PPE was strongly encouraged, but didn’t become mandatory until community circulation of the virus was confirmed by the Ministry of Health.

111.  On 27 June 2020, the Ministry of Health’s contact tracing program became overwhelmed, and PPE became mandatory for everyone working in or using public transportation, for workers and patrons of services that interact with the public, including theatres, health services, prisons, and banks, as well as for visitors and workers at elderly care centers. The obligation to use face coverings was generalized to all public spaces on 8 September 2020,¹⁰⁷ and remains in force.¹⁰⁸

112.  Isolation and quarantine orders are issued as soon as a person is diagnosed with Covid-19 or has been found to be in close contact with a person infected by Covid-19 (see Part IV.A.5 above). Isolation orders were issued for 14 days, violations were punishable by fines, and these orders were also extended to family members or people living under the same bubble. In special cases, the health authorities relied on municipal governments to determine the way to handle the homeless or established special locations to house people who lacked a suitable place to isolate or quarantine.¹⁰⁹ Municipal governments and social assistance agencies would in turn use their infrastructure and resources, as well as other private networks to provide assistance.

113.  A key part of the public health system response to the pandemic has been the individual testing of people with symptoms at primary health centres. Those tested are sent home with an order to wait for their results.¹¹⁰

114.  A general scarcity of testing equipment and the Government’s reliance on donated testing kits from abroad meant that universal testing was not the state’s priority. Covid-19 test kits were donated mainly by China as well as other sources such as the Central American Bank for Economic Integration (CABEI).¹¹¹ This began to change when the Ministry of Health’s contact tracing program experienced difficulties. On 26 June 2020, general testing began in densely populated areas of the country, including Pavas, Desamparados, and La Carpio communities.¹¹² These areas were selected because of their high population density and because of surging community transmission.

115.  Critics argued that the testing was insufficient and was potentially hiding the real magnitude of the disease. The Costa Rican Social Security agency indefinitely suspended the general testing program in September 2020 due to the high costs and the lack of reliable epidemiolocal information generated.¹¹³

116.  The National Commission for Vaccination and Epidemiology, in accordance with Article 3 of the National Vaccination Law, decides which vaccinations should be mandatory, universal, and free. On 11 March 2021, the Covid-19 vaccine was added to the official list of the 14 recommended universal vaccinations for Costa Rica.¹¹⁴

117.  In 2000, long before the Covid-19 pandemic, the constitutionality of mandatory vaccinations for the general population was addressed by the Constitutional Chamber in response to questions raised by deputies who feared that the measure would impinge on an individual’s free will. The Court argued (Resolution 2000-11648) that the right to health was twofold, one individual and the other social, both of which must be protected by the State.¹¹⁵

118.  Public and private health facilities are obliged to notify the nearest Ministry of Health office of all Covid-19 cases.¹¹⁶ Each reported case is entered into a database and followed-up by a medical professional through daily phone calls with the patient.

119.  People who have close contact with Covid-19 positive patients are required to isolate for 14 days and report on any symptoms by phone and are required to disclose their list of possible contacts.

120.  The database includes personal information including gender, age, diagnosis date, workplace, and the person’s recent contacts.

121.  Privacy concerns prevented the use of electronic tracking systems.

122.  Although long-term care facilities for the elderly were not significant centres of Covid-19 contagion or deaths, as was the case in many other countries, the Ministry of Health nonetheless established a general guideline for the elderly that included a ban on all visitors, but allowing visitation of terminal residents by family members or to sign legal documents.¹¹⁷ Elderly care home residents were to be evaluated twice a day to detect Covid-19 symptoms early.

123.  Group activities in the homes for the elderly were reorganized into smaller groups, with the groups kept separate. Residents living in the same room were considered ‘household bubbles’ and beds were placed 1.8 metres apart.

124.  All care workers were urged to shower and put on their PPE in a designated ‘green area’ before engaging with the elderly residents. New residents and those arriving from a hospital were required to stay in a yellow area for observation. Those confirmed Covid-19 positive residents exhibiting mild symptoms were required to stay isolated in a red area.

125.  To enforce the Covid-19 health policies, the Government mobilized the different police agencies, most of which report to the Ministry of Public Security.¹¹⁸ Because Costa Rica’s Constitution prohibits the maintenance of a standing army, the country lacks a disciplined military to implement Government anti-Covid-19 policies. Instead, it relied on donated resources from friendly countries, such as helicopters and boats to patrol borders. A major issue encountered was the enforcement of restrictions along the expansive northern border with Nicaragua. The Government even deployed police agents of the Judicial Power (OIJ) to help with border patrols, which resulted in deployment of a significant segment of the country’s police forces, with very scarce resources.¹¹⁹

126.  The Government’s approach to punishing health policy violators is the following:

127.  The bulk of the measures were enforced by the Ministry of Health officials at ports of entry, and according to the alerts system established in hospital and clinic facilities. Police officers were also delegated with the powers to act as enforcement officers. On 4 April 2020, the Legislative Assembly approved an amendment to the General Law of Health to increase the fines for people that intentionally defied health orders.¹²⁰

128.  Roadblocks, under the control of the transit police, enforce the weekly driving restrictions. Drivers that do not comply with vehicular restrictions are fined.¹²¹

129.  Similarly, business owners (mostly bars and restaurants) were sanctioned for non-compliance with health orders to close.¹²²

130.  In April 2020, at the start of the Covid-19 crisis, popular support for the Government’s measures was extremely high. In a public opinion survey, almost 94% of those sampled supported the Ministry of Health’s measures to combat Covid-19, even though workers, businesses, and the economy were harmed.¹²³ By August 2020, support had declined somewhat, but remained high, at 69%.¹²⁴ Separately, 83% of those sampled claimed that they would take the Covid-19 vaccination when it became available.¹²⁵ Face coverings, vehicle restriction, and prohibitions on private gatherings were generally well understood and accepted, but fewer people were understanding of the policy to close bars and restaurants.¹²⁶

131.  Finally, the reduction of 90% of vehicle transportation was found to be a very important asset in the Government’s success in controlling the spread of the disease in 2020. In areas where high mobility was recorded, high contagion was present too.¹²⁷

Bruce M Wilson, Professor, School of Politics Security, and International Affairs, University of Central Florida, Orlando, Florida, USA & Associated Research Professor, Chr. Michelsen Institute, Bergen, Norway

Olman A Rodriguez L, Letrado, Constitutional Chamber of the Supreme Court of Costa Rica, San José, Costa Rica

Sigrid Morales Carrasco, Letrada, Constitutional Chamber of the Supreme Court of Costa Rica, San José, Costa Rica