However, being a litigant, I am not able to find a place in my agenda for strictly academic occupations; besides, in principle, I believe this is not the function we are called for within the circle of the law in the case of those – like me – that are involved in litigation activities. On the other hand, in my particular case, when not infrequently happens, when I take the direction of a court case wherein my support is requested, my enthusiasm thereof inhibits me from making comments when the arguments are shared and have been settled unfavorably. However, this time I will make a small exception and, attending a courteous invitation from attorneys Hubert Fernández A. and Anarella Bertolini M., I will write about a case I became involved with before the Constitutional Chamber when I had barely resigned as secretary of said Chamber but now, with some doctrinal interest that somehow relates to the subject matter that deals with the access to the constitutional jurisdiction, in summary to its competence. It deals with the Recourse for Legal Protection brought by a foreign individual residing for some years in Costa Rica with a Costa Rican wife and a sister-in-law.
The substantive subject-matter in the specific case was the opinion made by the majority of the Chamber in terms of the right of residence as a right whose violation may be validly consented, meaning patrimonial following the terms of the second paragraph of Section 35 of the Constitutional Jurisdiction Law (hereinafter the CJL), hereinafter 35.2 of said Law; however, I must circumscribe to the analysis of said norm or rule by avoiding any consideration to the right of residence in extenso.
I intend to submit some short considerations about the backgrounds of the norm in order to later precise whether it deals with a statute of limitations or an expiration of the term therein and end up with a substantive characterization of the fundamental rights so as to demonstrate that such concept does not exist and that, even if it did, it has been granted an improper scope.
LEGISLATIVE BACKGROUND OF PARAGRAPH 2 OF SECTION 35.2 OF THE CJL
Prior to pointing out the normative background of Section 35.2 it is imperative to me to point out that I depart from the proposition whereby the CJL states “patrimonial rights or others whose violation may be validly consented”, I only understand the patrimonial (rights) and that it was a mistake in the introduction of the sentence “or others”, since the will of the lawmaker was precisely that and no other one, as I will explain hereafter.
As an immediate background of the rule as commented in this paragraph, I find sub-section e) of Section 3 of the Recourse for Legal Protection number 1161 of June 2, 1950, in regards to the setting up the inadmissibility of such Recourse “…when the action or the omission that violates the individual right would have been specifically consented – not presumed – by the offended individual. The existence of consent will be understood when a term of eight (8) calendar days or more had elapsed as of the moment the violation of the right or the threat thereof ended, and the offended individual had not set up the Recourse for Legal Protection”.
On the other hand, once the legislative minutes had been analyzed on the occasion of the discussion of the project for the CJL in the Legal Affairs Committee of the Legislative Assembly, the is no reference dealing with the concept of patrimonial rights. The only reference existing consists of a small clarification submitted by Justice Piza Escalante: “With Section 30 (currently 35), occurs the same as it does with Section 35 paragraph 2. It had been written “waivable right”, this is to say that a different treatment had been given to the rights that had been waived that would be those non-waivable. On Saturday a discussion surfaced about what is a highly undetermined concept, and that it would be better to further outline it; then a formula was reached: instead of speaking of ‘waivable rights’ it would be better to speak of “rights whose violation may be validly consented”. This was agreed upon Saturday and since then it has been substituted in a number of places. The only change included was to Section 30.”
However, I do remember how that concept of Patrimonial Rights was introduced. Firstly, I must attribute the paternity of said provision to Justice Piza Escalante. It was him who worried most in terms of extending and facilitating the protection of the fundamental rights during the preliminary sessions held at the Ministry of Justice by the Drafting Committee of the Constitutional Jurisdiction Law (CJL) wherein I acted as the Secretary. Bearing in mind the idea of alleviating the toughness and the absurdity of Section 3 of the old Constitutional Jurisdiction Law, Dr. Piza Escalante submitted a proposal aimed to extending the then eight calendar day-term to two months and, in turn, to reduce the catalog or list of fundamental rights subject to it by way of the patrimonial rights’ concept. I can remember that the intention was to write off such term. However, there was not a favorable stance in that direction by the rest of the members of the Committee for a change they considered, then, too radical, in which case, resorting to his innate and experienced ability as negotiator, the then Judge of the Inter American Court of Human Rights proposed the drafting that remained virtually unaltered until its final approval by the Legislative Plenary. The intention was to circumscribe that statute of limitations (or caducity, as some understand it), solely for certain fundamental rights that were then named patrimonial rights. I never understood his desire to build this distinction between patrimonial rights and rights whose violation could be validly consented.
I have always believed that Dr. Piza Escalante chose this concept with the intention of reducing to the minimum the list of rights whose protection action was limited to said statute of limitations. Regrettably, as I stated above, practice has inverted it and has taken advantage of it so as to avoid hearing cases submitted to discussion within the environment of the Constitutional Jurisdiction.
STATUTE OF LIMITATIONS OR CADUCITY?
As can be understood that the time term set forth in paragraph two of Section 35 of the CJL refers to a statute of limitations or a caducity, its consequences are different. With much clarity in the saved vote of the final ruling number 135-*90 of 15:00 hours of February 2, 1990, Justices Del Castillo Riggioni and Piza Escalante dealt with this issue as follows:
“The majority vote extracts from Section 35.2 the consequence whereby it stands as a peremptory or final term as a true requirement of admissibility of the protection action in a way that, when coming across the form of Section 36, the recourse has simply expired, ex officio, and announcing that the exception was alleged, without questioning the fact that both, in this last norm as well as that of Section 31 of the same law, the expression of “caducity” as contained in the project revised by the executive committee that worked as the last basis to the law, had been specifically substituted by the “statute of limitations” as well as upon a motion of the Permanent Committee of Legal Affairs of the Legislative Assembly with the declared intention that the time terms set forth in Section 35 would not be terms of caducity, of public order and declarable ex officio, but only related to the statute of limitations which is well known it constitutes an available and waivable procedural exception, therefore only declarable if and when timely invoked by the party favored therewith. Consequently, since said statute of limitations had not been argued, we opted to accept the Recourse of Legal Protection and continue the proceedings until the final substantive ruling”
Likewise, the late Dr. Eduardo Ortiz agreed with the concepts stated in the paragraph above while issuing his comments and making some suggestions to the then project of the CJL:
“Article 35. I find paragraph number two somehow dangerous since the constitutional and international origin of the patrimonial right as discussed herein, must guarantee equal treatment as the one provided to the other individual regarding the constitutional and international rights in regard to the caducity term of the applicable action. I suggest said second paragraph be suppressed.
But the most important suggestion in this respect is to suppress the expiration condition which is different from the principle of the statute of limitations, of the rights and fundamental freedoms. It is not a matter of wasting time here by emphasizing the differences of the system applicable to the expiration principle or that of the statute of limitations that are supposedly known. My objection brings cause upon the elemental observation that such fundamental rights do not have to be subject to a caducity act that is always exceptional given its excessive strictness in favor of the rights that are not fundamental. This also explains my objection against the short term of twenty days of caducity that should be substituted for a much longer one. I suggest drafting section 35 as follows:
Art. 35. The Recourse for Legal Protection may be brought in at any time while the violation, threatening, perturbation or restriction subsists.
The Recourse for Legal Protection will prescribe one year after all the direct effects in respect to the injured individual had ceased”.
Regardless of the fact that the majority of the Justices of the Constitutional Chamber have leaned to understand that it deals with a caducity issue, to me it is very clear that it relates to a prescription. In addition to the reasons outlined both, in the stated minority vote as well as those set forth by Dr. Eduardo Ortiz, I believe in the most favorable interpretation principle for the access to the Constitutional Jurisdiction that unquestionably prevails in this case.
CLASSIFICATION OF THE FUNDAMENTAL RIGHTS
Within the great discussion between Positivists and Ius-Naturalists aimed to defining the natural rights, I am inclined towards the dualist theory as developed by the Spanish Professor Gregorio Peces – Barba Martínez, which I hereby omit its discussion since this is not the purpose of these lines.
The inclusion of the concept of the fundamental rights in Section 35.2 of the CJL that assumes a classification of the fundamental rights, of which the Doctrine is familiar with the most varied ones.
In general, the fundamental rights may be classified according to their contents, their scope of application or else by reason of the manner of their exercise.
According to its content and depending on the consulted authors so will be the classification. This way, Professor Ruiz Giménez distinguishes: a) fundamental rights of the person by itself; b) rights of the person as a social being or communitarian in genere; rights of the person as a family and domestic being; ch) right of the human person as a political being; 2) rights of Man as a citizen of the World; rights of the human person as a religious being.
Professor González Campos classifies them as follows: a) rights inherent to the very existence of the person; b) rights related to the protection and security of the person; rights relative to the political life; c) rights of economic and social content; rights related to the social and juridical life of the person.
Ignacio Burgos groups them under individual guarantees of equality, freedom, property and juridical or legal certainty.
Professor Peces – Barba himself, outlines his own classification that he calls quadripartite: a) Strictly personal rights; b) socio-economic rights; c) society, communication and participation rights; and ch)political-civic rights and, he adds a fifth category, that of the rights of legal certainty.
As can be seen, whichever the classification studied, we will not find that of patrimonial rights as set forth in Section 35.2 of the CJL. Even in the case of the old classification that sets apart economic rights and social rights it is not possible, however, to find a rigorous demarcation.
Upon its scope of application one can set apart state, national and international or supranational fundamental rights.
By reason of the manner of their exercise, they may be set apart as rights of autonomy, participation rights, credit rights or behavior demands on the part of the State, and rights-duty.
It is evident, in my opinion that, regardless of the classification of the fundamental rights that may be adopted, there does not exist in the Human Rights Doctrine any classification in terms of patrimonial rights.
However, putting aside their classification and even their characteristics, I believe the only right that could be subject to the prescription (statute of limitations) of Section 35.2 of the CJL, is the property right. Regrettably, the Constitutional Chamber has excessively extended said concept as set forth in our law, even reaching the extreme to including the right of residence as it did upon the vote I cited above these lines. This way, the Constitutional Chamber has restricted through this avenue the scope of Sections 1 and 2 of the CJL to the detriment of the fundamental rights of the citizens. I strongly believe in that a serious and profound reconsideration on this point will lead the Justices of the Constitutional Chamber to change their position in this subject matter.AMERICA 2010.
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By Mario Rucavado Rodríguez.