Supreme Court of Justice of Costa Rica (Corte Suprema de Justicia de Costa Rica)
Costa Rica [cr]
Ana María Ruiz González
- Constitutional courts/supreme courts
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1 The Supreme Court of Justice of Costa Rica (Corte Suprema) is the highest Court within the Costa Rican judicial branch of government. It was established on 25 January 1825, by the Fundamental Law of the Free State of Costa Rica. It is formed by three specialized chambers, which have ‘cassation jurisdiction’ (quashing powers) to review questions of law from lower courts. It has a fourth specialized chamber, known as the Constitutional Chamber (Sala Constitucional or Sala Cuarta) which was added to the Court in 1989. It exclusively executes the judicial review, ensuring the maintenance of constitutional supremacy / primacy. It also reviews constitutional writs (writ) filed by individual citizens, resolves jurisdictional conflicts between the Costa Rican branches of government, and provides consultations on constitutional amendment bills (amendment or revision of constitutions), other legislative bills, and ratifications of international agreements or treaties.
B. Brief Historical Overview
2 On 15 September 1821, Costa Ricans voted for independence, thereby severing Spanish imperial rule. On 1 December 1821, when the Internal Social Pact of Costa Rica, known as the Pact of Concord, was formulated, the Supreme Government Board was established to exercise the functions of government. A tribunal was also created to administer justice promptly and in compliance with the laws for the Indian-Spanish peoples and it was this which became the first foundation of the Supreme Court of Justice (Saenz Carbonell 183–5). Decree V, issued by the National Constituent Assembly on 24 September 1824, was the first to establish the division of power into three branches: executive, legislative, and judicial. However, it was not until the promulgation of the Fundamental Law of the Free State of Costa Rica on 25 January 1825 (Fundamental Law of the Free State of Costa Rica: 25 January 1825), that Article 87 created the Supreme Court of Justice, which began functioning on 1 October 1826.
3 For more than 20 years, judges applied the Spanish Laws of the Indies, for the resolution of cases. In 1841, under the presidency of Braulio Carrillo Colina, Costa Rica passed its first local regulation under the promulgation of the General Code which contained civil, criminal, and procedural law. This was to become the foundation for the subsequent development of the Costa Rican legal order. The Supreme Court of Justice was included for the first time in the constitutional text of 1844, and in 1851, the Organic Law of the Judicial Branch was ratified to develop the structural aspects of the Court (Mora Mora 158).
4 In 1948, a Constituent Assembly was convened as a measure to put an end to the Civil War (March–May 1948). On 7 November 1949 the Constituent Assembly (constituent assemblies) enacted the Political Constitution of Costa Rica (Political Constitution of the Republic of Costa Rica: 7 November 1949 (as Amended to 15 July 2003)), a text which currently remains valid. The Constitution was a political project of state reform and modernization for the country. Some of its main milestones include the abolition of the army, the right for women and Afro-decedents to vote (right to vote; women’s suffrage), as well as the creation of the Supreme Court of Elections. This new Constitution recognizes the division of powers in Articles 9, 153, and 154, as well as endorsing the power of the State to exercise the jurisdictional function, establishing the Supreme Court of Justice and other courts responsible for its safeguarding, interpretation, and protection.
5 In 1950, the Amparo Law was enacted to provide a direct and specialized protection of fundamental rights. Despite the review of the writs of amparo not having the hearing of a specialized tribunal, the law stipulated that such cases would be heard by criminal judges, except in cases in which the grievances were brought against the President, their ministers, the mayors, or the president of the police. In such an instance, competence for hearing was assumed by the First Chamber. In 1980, Act No. 6434 reorganized the Supreme Court and established the First, Second, and Third Chambers as courts of cassation. Although the constitutional review fell within the jurisdiction of the Supreme Court of Justice, no chamber was established at that moment to hear only writs of amparo or habeas corpus. In 1982, an institutional debate highlighted the need for a specialized tribunal, to hear writs, that protects individual rights. This was prompted by the backlog of cases caused by such hearings, undermining the principle of timely justice. A resolution to this issue was brought about on 18 August 1989 when the Constitution was partially amended, establishing the Constitutional Chamber, a specialized tribunal, known as the ‘Fourth Chamber’. The establishment of the specialist Court, under the jurisdiction of the Supreme Court, has ensured that power has not been diluted from the Supreme Court of Costa Rica in jurisdictional matters (Mora Mora 162–3).
6 It is in the judicial branch of government which Costa Ricans have placed most trust, as evinced by the empirical evidence (CONARE (2018), graph 5.13, 201). However, in 2018 the credibility of the judicial branch was significantly undermined. A public denunciation against a justice of the Third Chamber, in complicity with the Attorney General, brought the issue of corruption to light. Having been involved in influence-peddling, in a scandal known as El Cementazo, the offending judge was dismissed on 10 April 2018, for the first time in Costa Rican history.
C. Structure and Powers
7 The Supreme Court of Justice has an Organic Law of the Judicial Branch, Law No. 8 of 1 December 1937 (Costa Rica) which outlines its powers and establishes the structure. The Court is constituted of four chambers; three chambers strictly review cassations on a subject basis as follows: the First Chamber has cassation over civil, contentious-administrative, agrarian, and commercial law matters; the Second Chamber hears matters relating to labour and family law, and the Third Chamber hears criminal law cases. The Fourth Chamber, the Constitutional Chamber, has the primary function of overseeing the protection of individual rights.
8 The Supreme Court of Justice has a Chief Justice, who is also the President of the Judicial Branch (Art 60). The Court is composed of 22 justices, known as the full court (Corte Plena), and 37 auxiliary justices who replace any justice when he or she cannot hear a case. Each justice may have at least one clerk who is a senior lawyer or professional, which is in contrast to the US (clerks of constitutional courts / supreme courts). Both regular and auxiliary justices are elected by a two-thirds majority of the Legislative Assembly. Justices do not have a life tenure but a fixed term of eight years that can be renewed by the same number of votes (Art. 158 of the Political Constitution). Although the requirements for magistrates are established in the Constitution, Article 159, there is no legal procedure for their election. By tradition, an Appointments Committee is created for the evaluation of the candidates, taking into consideration experience, academic contributions, etc.
9 The justices are distributed in the four Chambers in the following way: for the First, Second, and Third Chambers, there will be five justices. Within the Fourth Chamber there will be seven justices (Organic Law of the Judicial Branch, Law No. 8 of 1 December 1937, Art. 49 (Costa Rica)). Of the 37 auxiliary justices, twelve correspond to the Constitutional Chamber, nine to the First Chamber, and eight to each of the remaining Chambers (Second and Third). All the justices (full court) meet on the first Monday of each month in ordinary session, and in extraordinary sessions when convened by the President of the Court, or when seven justices request it.
10 The sessions of the Constitutional Chamber, even where there are no guiding regulations, tend to be heard privately. The resolutions taken by the Constitutional Chamber must be adopted by a majority vote. This means that it is a vote integrated by the plenary, that is, that the seven justices are present, of which the majority must be justices rather than auxiliary justices. At least four coincident votes are needed to decide the matters submitted to the Constitutional Chamber and the final decision must be supported by a majority. There is no possibility for a justice to abstain in order to cast their vote, but it is possible to reject a particular legal position and, therefore, to cast saved or dissenting votes—this differs from the collegiality principle of the Italian system—resembling the system of the Federal Constitutional Court of Germany (Bundesverfassungsgericht) and the Constitutional Court of Spain (Tribunal Constitucional de España).
12 The Constitutional Chamber exercises four powers in accordance with Article 10 of the Political Constitution and Article 57 of the Organic Law. There is also a specific law which guides the functions of the Constitutional Chamber (Constitutional Jurisdiction Law, 19 October 1989 (Costa Rica)).
13 The first power held by the Chamber is the resolution of the writs of habeas corpus and amparo, both of which can be submitted by any individual in an effort to exercise their individual rights against an adverse government action. These writs must be presented in writing, either handwritten or typed, and its mode of presentation is not subject to any formalities. The writ of habeas corpus is a rapid and preferential process for the exclusive protection of personal freedom and integrity, as well as freedom of movement; it is regulated by Article 25 of the Constitutional Jurisdiction Law. Additionally, through habeas corpus the Chamber evaluates the treatment of the person according to their dignity, particularly where a person is being deprived of their liberty through incarceration (detention). The writ of amparo protects all other individual rights that are not covered by habeas corpus. It is conducted directly in the first and only instance before the Chamber. It proceeds against any action, omission, or simple material action—not based on a compelling governmental objective—carried out by public servants and government bodies. It is not necessary to replace any administrative procedure or appeal in order to bring the case. The writ of amparo is applied in a particular way in Costa Rica in that it can be brought against subjects of private law, and this is a manifestation of the German doctrine of Drittwirkung. There is also a very particular type of amparo that protects ‘the right of rectification and response’, as derived from Article 14 of the American Convention on Human Rights (1969) and Article 29 of the Political Constitution of Costa Rica. These hearings are mostly in relation to defamation or matters of aggravating information that detrimentally affects the honour of an individual.
14 The second power is the review of the action of unconstitutionality. It is a mechanism of a posteriori control of the acts and statutes, according to Articles 73 to 95 of the Law of Constitutional Jurisdiction. This is a process of reviewing the constitutionality of laws which have violated any constitutional principles or norms, or whenever the process of adopting laws or legislative agreements violates internal procedure or the Costa Rican legislature. It is a formal process that may be brought when there is a case pending before the inferior tribunals, or a writ of amparo or habeas corpus, or a procedure in a governmental institution. It does not need to have a pending case in matters where, due to the nature of the issue, it is not possible to have an individual and direct injury, or where the defence of collective interests, like environmental or consumer issues (protection of the environment; consumer protection) is implied. Additionally, the Comptroller General of the Republic, the General Attorney of the Republic, the General Prosecutor of the Republic, and the National Ombudsman (ombudsman) do not need to have a pending case for filing a request for a constitutional opinion from the Chamber.
15 The third power is the resolution of conflicts of competence between the powers of the state, including the Supreme Court of Elections, or between any of them and the General Controllership of the Republic (Arts 109–11 of the Constitutional Jurisdiction Law).
16 The fourth power is over the resolution of different uncertainties involving constitutional matters. The Chamber exercises a prior advisory opinion on draft laws on constitutional amendments or amendments to the Law on Constitutional Jurisdiction, as well as the approval of international conventions or treaties. An advisory opinion may also be submitted for bills under discussion in the Legislative Assembly and this only requires the request of ten legislators (out of 57 that make up the entire Assembly). The Supreme Court of Justice, the Supreme Court of Elections, and the Office of the Comptroller General of the Republic have the possibility to file a consultation when the Legislative Assembly are discussing legislative drafts or draft amendments that could interfere with the duties of the Constitutional Chamber. The National Ombudsman also has standing to request for the opinion of the Constitutional Chamber when a draft law or draft amendment appears to jeopardize individual rights. Ordinary judges also have the power and duty to consult the Chamber when they have justified doubts about the constitutionality of a rule or act that must be applied in a case submitted before them. As judges lack the capacity to declare the nullity of the norms of the legal system, the constitutional system of Costa Rica is considered a ‘concrete’ system.
D. Landmark Cases of the Supreme Court of Costa Rica
1. Right to Life
17 The Constitution of Costa Rica enshrines the inviolability of human life. Therefore, abortion and euthanasia remain illegal. Defending this controversial position as a reflection of Costa Rican societal values, the Constitutional Chamber in the Sentence 2306-00, declared unconstitutional the executive decree No. 24029-S, of 3 February 1995, which regulated in vitro fertilization (‘IVF’). The Chamber indicated that a human embryo (embryos and embryonic stem cells) is a person from the moment of conception and thus it cannot be treated as an object, used for research purposes, be subjected to selection processes, or kept frozen. The Court essentially ruled against any procedure that exposes the human embryo to a disproportionate risk of death. The main objection raised by the Chamber is that the application of the technique involves a high loss of embryos, which cannot be justified by the fact that the objective of the technique is to achieve pregnancy for a couple who would otherwise not be able to conceive. In response to this ruling, Costa Rica was sued before the Inter-American Court of Human Rights (IACtHR) in 2011 (supranational constitutional courts), and later required to legalize IVF and to freely provide the procedure in the public health system. It was a controversial decision particularly because the IACtHR rejected the Costa Rican argument for the ‘margin of appreciation’ (Artavia Murillo et al v Costa Rica (2012) (IACtHR)).
2. Freedom of Religion in a Confessional Country
18 The Constitutional Chamber has helped to interpret the confessionalism of the Costa Rican state (relation of religion to state and society). Despite the major religion of Costa Rica being Catholicism, the Constitutional Chamber has maintained that there must be cooperation with other religious confessions, as long as they do not violate morality (Sentence 3173-93). As for freedom of conscience and religion or belief, the Constitutional Chamber has heard very few cases and of those, most have been about the use of religious signs such as the use of the Hijab and the Kipa. Both cases (Sentence 2706-16 / Sentence 14918-17) were ruled in favour of the appellants.
3. Right to Health
19 The Constitutional Chamber has recognized a right to health as fundamental and independent, even if the Constitution does not explicitly define it. It was recognized by the Chamber when it reviewed a writ of amparo filed by individuals with HIV/AIDS. The petitioners claimed that the national health provider, the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) had refused to grant their requests for life-sustaining medication. The Chamber ordered the entity to dispense medication not only to the petitioners, but also to all people living with HIV/AIDS. It derived this right from Articles 21 (right to life), and 73 (right to social security) of the Constitution, along with a series of human rights treaties and agreements such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the American Convention on Human Rights. Indeed, under Article 48 of the Political Constitution of Costa Rica, these treaties are given as much power as the Constitution (Sentence 5934-97). Considering that that the health care system is entirely publicly funded and that it aims to provide universal coverage, the writ of amparo has proven to be critical in allowing individuals to challenge adverse actions by government agencies in the context of violations of health rights. These include cases such as the timely access to treatment (Sentence 4621-13), access to medication such as the right to vaccination (Sentence 1954-00), or the delivery of morphine prescribed for a comfortable death (Sentence 1915-92).
4. Right to Marriage
20 The Constitution asserts that marriage is the foundation of Costa Rican society and according to the Family Code, the only valid marriage is between a man and a woman. The Chamber held, in accordance with constituents, that the only valid marriage is the heterosexual (Sentence 07262-06) and monogamous union (Sentence 3693-94 and 2129-94; LGBT rights). Moreover, the Chamber rejected the presentation of a draft law in order to call a citizen referendum on a law for the civil union between same-sex couples (Sentence 13313-10).
21 However, Costa Rica requested an advisory opinion from the IACtHR on the adequacy of public records and identity documents so that they conform to gender identity and property rights issues arising from the law on same-sex marriage (IACtHR Advisory Opinion OC-24/17 (2017)).
22 Despite being an advisory opinion, and having incurred in ultra petita, the IACtHR required Costa Rica to legalize same-sex marriage and to guarantee all rights derived from that family union. As a result of this advisory opinion, dated 8 August 2018, and after being questioned again on the legality of Article 14.6 of the Family Code (Costa Rica) (which prohibits marriage between same-sex couples), the Chamber set a deadline of 18 months, starting from the publication of the judgement, for the entry into force of the unconstitutionality of the relevant provisions of the Family Code. The Legislative Assembly was urged to amend the laws in accordance with the issued judgment, and in light of prior consultation (Sentence 12782-18).
5. Freedom of Expression
23 Regarding freedom of expression, the Constitutional Chamber has indicated that for the proper exercise of this right, limits such as public order and morality must be respected (Sentence 10440-07; ordre public (public policy)). In a striking judgment of 2012, the Chamber made an extensive recompilation of the jurisprudence of the European Court of Human Rights (ECtHR) to rule that the freedom of expression is not an exclusive right and must respect the rights of others when public demonstrations of freedom of expression are exercised as strikes (Sentence 171777-12). The Chamber declared it unconstitutional to require professional journalists to be a member of the College of Journalists since this was a violation of the right of expression and right of information (right to access to information). In order to substantiate this ruling, the Court followed what was established in the Advisory Opinion of the IACtHR No OC-5-85.
6. Freedom of Transit
24 Most cases of freedom of movement have been related to the presence of objects that obstruct freedom of movement on the streets, especially by the use of barriers in some residential areas which aim to regulate traffic or compensate the lack of traffic signals (Sentence 10104-00). In more recent cases, drones have been denied ‘freedom of transit’ in some public spaces because they affect aeronautical regulations (Sentence 6132-17). The Court has also interpreted freedom of movement, through habeas corpus, to condemn the state of overcrowded prisons (prisons and prisoners). For example, in the Sentence 7484-00, in light of the UN Standard Minimum Rules for the Treatment of Prisoners, the Court ordered the government not to admit any more prisoners until the situation of cramped prison conditions were resolved.
7. Right to the Environment
25 The role of the Constitutional Chamber in protecting the right to the environment has been crucial, particularly since Costa Rica has 6 per cent of the world’s biodiversity. Already in 1991, three years before the reform of Article 50 of the Constitution (which constituted the right to the environment as an individual right), the Chamber established the duty to protect biodiversity and established that the destruction of natural resources violates and injures other individual rights such as the right to life and the protection of the environment (Sentence 1802-91). At the same time, it recognized the need to preserve the environment not only as a cultural end, but as a necessary minimum for every human being.
26 The Chamber has also played a vital role in enforcing international environmental treaties. Before the existence of this Chamber and its rulings on the interpretation and application of international environmental law, international instruments signed by Costa Rica for the protection of the environment lacked binding force and were limited only to drawing up future action plans for subsequent normative developments. However, since Sentence 6240-93, the jurisprudential criterion has established that international environmental instruments are now binding and fully enforceable. This criterion was followed by Sentence 1250-99, which declared the executive decree that allowed the hunting and exploitation of the olive ridley turtle and the green turtle unconstitutional. This declaration was made because the decree was deemed to be a violation of the Convention on International Trade in Endangered Species of Wild Flora and Fauna.
8. Interpretation of International Treaties
27 The human rights instruments in force in Costa Rica are equally as enforceable as the Constitution insofar as they grant greater rights or guarantees to individuals and thus they can take precedence over the Constitution. This is not to say that international human rights law repeals Costa Rican constitutional law, but rather that it allows the judge to use the law that is most advantageous for individuals (pro homine principle, lex favorabile) (Sentences 3435-92, 5759-93, Sentence 2313-95).
28 The Supreme Court of Justice of Costa Rica is formed of three specialized chambers that have ‘cassation jurisdiction’ to review questions of law from lower courts. The most prominent chamber to secure the supremacy of the Constitution in the nation is the fourth chamber. The fourth chamber is a judicial body solely tasked with reviewing and deliberating constitutional questions, and acting as the first and final judicial entity reviewing these issues. The Constitutional Chamber reviews six types of petitions: the habeas corpus, the amparo, the action of unconstitutionality, the legislative consultation, the judicial consultation, and the resolution of intragovernmental conflicts. Since its foundation in 1989, the Court has developed a solid interpretation of the Constitution and has strengthened the values of the nation that include democracy, welfare, and a focus on environmental protection.
Consejo Nacional de Rectores (CONARE), ‘Estado de la Nación en desarrollo humano sostenible 2018’, available at https://estadonacion.or.cr/informe/?id=28797234–99af-4c53-b436–7c9a57fb1fe1 (10 July 2019).
Jinesta Lobo, E, Sala Constitucional de la Corte Suprema de Justicia de Costa Rica in Mac-Gregor Ferrer, E, (ed.), Crónica de tribunales constitucionales en Iberoamérica (Marcial Pons 2009).
Mora Mora, L, ‘Costa Rica’ in Mora Mora, L, and ors, Estructura y competencia de las cortes y tribunales supremos de justicia en Iberoamérica (Suprema Corte de Justicia de La Nación 2006).
Saenz Carbonell, J, Historia del derecho costarricense (Juriscentro 1997).
Sentence No 1954-2000 of 1954 (3rd March 2000) (Costa Rica).
Sentence 7262-2006 of 2006 (23rd May 2006) (Costa Rica).