Luis Porfirio Sánchez Rodríguez
Luis Porfirio Sánchez Rodríguez
Res: 2024000239
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| Luis Porfirio Sánchez Rodríguez |
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Luis Porfirio Sánchez Rodríguez |
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Roxana Chacón Artavia
Olman Gerardo Ugalde Gonzalez
Documento Firmado Digitalmente
-- Código verificador --
I2KULTIFP8A61
1
EXP: 18-000717-1178-LA
Teléfonos: 2295-3671, 2295-3676, 2295-3675 y 2295-4406.
SALA SEGUNDA DE LA CORTE SUPREMA DE JUSTICIA. San José, at fourteen hours and eight minutes of February nine, two thousand twenty-four.
\nHaving examined these proceedings for the reason indicated in the preceding result, the undersigned judges issue this resolution,
\nCONSIDERING
\nI.- The plaintiff filed an ordinary labor lawsuit against the State, with the intervention of the Office of the Attorney General of the Republic, claiming that the dismissal was null and void and, consequently, the payment of the salaries that were no longer received, aguinaldos, vacations and other rights that correspond to him. He requests the declaration with absolute dismissal as to costs (condena en costas). (See the lawsuit and its ratified correction, documents/images 7 to 14 of the main file.) The defendant answered in the negative and requested the integral rejection of the claim, with a special ruling on costs. (See answer to the lawsuit and its timely correction, documents/images 110 to 119 and 127 of the main file.) The court of first instance (a quo) partially upheld the claim and ordered the defendant to pay the plaintiff the salaries that were no longer received from the date of dismissal until the effective reinstatement to his position, aguinaldos, vacations, salary increases and legal deductions, as detailed in the judgment, plus interest at the legal rate from the date of each periodic obligation until its effective payment. It resolved the matter without a special ruling on costs. (See final judgment, documents/images 260 to 280 of the main file.) The plaintiff filed an appeal, arguing that costs should have been imposed against the losing party. (See document/image 296 of the main file.) The Tribunal de Apelación Civil y Trabajo of Alajuela partially upheld the appeal and modified the appealed judgment to impose the payment of costs against the defendant, setting the attorney's fees at the rate of fifteen percent of the total amount of the judgment. (See judgment number 2023-000157, documents/images 128 to 132 of the file of the second instance.) The defendant filed an appeal (recurso) before this Chamber, based on the reasons set forth in the respective writ. (See document/image 133 of the same file.)
\nII.- Once the admissibility of the appeal has been determined, which is exclusively focused on the discussion of whether the defendant entity is covered by the exemption from costs (exoneración en costas) recognized in favor of the State and its institutions, it is appropriate to clarify that, according to the provisions of Article 560 of the Labor Code, the State, the Municipalities, the Autonomous and Semi-Autonomous Institutions, and in general, all Public Law entities, are exempt from the payment of procedural and personal costs, unless the legal provision that creates them expressly imposes them or the existence of bad faith or reckless conduct on their part is determined within the proceedings. The above allows us to conclude that the legal system provides a special regime regarding the imposition of costs when public entities are involved in a process. Consequently, the interpretation and scope given by the Tribunal de Apelación in judgment number 2023-000157, in order to impose costs on the defendant entity, is incorrect. This is because, by virtue of the provisions of Article 1 of Law number 7012, of November 16, 1985, the Banco Nacional de Costa Rica is an autonomous institution of the State, with its own legal personality and administrative independence. Therefore, the aforementioned exemption applies to it, and for this reason, the ruling on costs issued by the Tribunal de Apelación Civil y Trabajo of Alajuela in the appealed judgment must be revoked, and instead, it should be resolved without a special ruling on costs in both instances.
\nIII- The foregoing leads to the partial granting of the appeal, regarding the reasons indicated.
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POR TANTO
\nThe appeal filed by the representative of the defendant entity is partially granted. The ruling on costs imposed against the defendant entity in judgment number 2023-000157 of the Tribunal de Apelación Civil y Trabajo of Alajuela is revoked. In all other respects, that judgment is confirmed. The matter is resolved without a special ruling on costs in this instance.
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Luis Porfirio Sánchez Rodríguez
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Julia Varela Araya Marta Eugenia Acuña Zúñiga
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Roxana Chacón Artavia María Cecilia Araya Leandro
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EXONERACIÓN EN COSTAS A LA PARTE ACTORA. [239-24]\"
\n\n2024000239\nSALA SEGUNDA OF THE CORTE SUPREMA DE JUSTICIA.\n\nSan José, at fourteen hours eight minutes on the ninth of February, two thousand twenty-four.\n\nOrdinary proceeding established before the Labor Court of the First Judicial Circuit of San José, First Section, by **[Nombre 001];** [Nombre 002]**;** [Nombre 003]**;** [Nombre 004]**; [Nombre 005];** [Nombre 006]**; [Nombre 007]; [Nombre 008]; [Nombre 009]; [Nombre 010];** [Nombre 011]**;** [Nombre 012]**;** [Nombre 013]**; [Nombre 014]; [Nombre 015];** [Nombre 016]**;** [Nombre 017]**;** [Nombre 018]**;** [Nombre 019]**;** [Nombre 020]**; [Nombre 021];** and [Nombre 022]; against the **STATE (ESTADO)**, represented by its deputy attorney (procurador adjunto), attorney Luis Guillermo Bonilla Herrera, married, lawyer, resident of Cartago. The attorney Alejandro Ulloa Dormond, married, resident of Heredia, appears as special judicial representative (apoderado especial judicial) of the plaintiff parties. All of legal age, public officials (funcionarios públicos), of unknown marital status and domicile, with the exceptions indicated.\n\n**Drafted by Magistrate Chacón Artavia; and,**\n\n**CONSIDERING (CONSIDERANDO):**\n\n**I.- BACKGROUND (ANTECEDENTES):** The plaintiffs, in the complaint, seek that the defendant be ordered to immediately pay them the prohibition incentive (incentivo de prohibición) and retroactively to the date of enactment of the reform to the Code of Tax Rules and Procedures (Código de Normas y Procedimientos Tributarios), through Law No. 9069 of September 10, 2012 (Law for the Strengthening of Tax Management, Ley de Fortalecimiento de la Gestión Tributaria); as well as the differences generated by that concept in the Christmas bonus (aguinaldo), vacations, school bonus (salario escolar), overtime (horas extra) and any other item directly related to the salary, plus interest, indexation (indexación) and costs. The defendant party answered in negative terms and raised the defense (excepción) of lack of right. The Court declared the complaint without merit and individually condemned each of the plaintiffs to the payment of both costs, fixing the personal costs in the prudential sum of three hundred fifty thousand colones.\n\n**II.- GRIEVANCES (AGRAVIOS):** The representative of the plaintiff party appeals before the Chamber. On procedural grounds (por la forma), first, he alleges that in matters of pure law (asuntos de puro derecho) the judgment must be handed down within the 15 days after the answer to the complaint, after granting a transfer for conclusions (traslado para conclusiones). Non-compliance with that time limit, pursuant to section 587.6 of the Labor Code (Código de Trabajo), constitutes grounds for cassation (casación). He claims that the contested judgment was handed down outside that time limit. He reproaches what is stated in the unproven facts, since with the evidence provided in the complaint it was demonstrated that the plaintiffs are barred from the possibility of freely exercising their profession. He states that the proceeding was never about the need to possess a university degree or for his clients to be incorporated into a Professional Association (Colegio Profesional); but rather about the functions of administration, auditing (fiscalización) and collection of public funds, through the prevention and investigation of the possible commission of customs, tax and treasury offenses. He adds that his clients possess a para-university or university degree and, for the most part, are incorporated into the respective Professional Association, which means they can exercise their profession in a liberal manner, but this is barred to them, even though they are not compensated for the prohibition. For that party, according to the certification from the Department of Human Potential Management (Departamento de Gestión de Potencial Humano), the tasks of the positions of the tax police officials (policía fiscal) are to prevent, detect and repress tax evasion (evasión fiscal), which means they form part of the tax administration (administración tributaria), given that they intervene directly in the collection of taxes. Thus, these employees, according to the description of their activities, prepare case files (expedientes) related to tax evasion, collaborate in complaints for tax-related offenses, and carry out inspections and investigations. He adds that there is a rule that expressly provides that the officials of the tax police are part of the State's Tax Administration (article 2 of the Regulation on the Organization and Functions of the Directorate of the Fiscal Control Police, Reglamento de Organización y Funciones de la Dirección de la Policía de Control Fiscal). On the merits (por el fondo), he reproaches that the judge did not seek the real truth of the facts, taking into consideration only the contradictory arguments of the defendant. He states that, in the certification DGPII-UDA-MANUAL-101-2018 itself, being registered in the respective Professional Association is indicated as a legal requirement, which his clients fulfill. He states that the core point of this case consists of establishing whether the Fiscal Control Police (Policía de Control Fiscal) belongs to the Tax Administration of the Ministry of Finance (Ministerio de Hacienda), since the officials who belong to it, as provided by the Law on Compensation for Payment of Prohibition (Ley de Compensación por pago de prohibición) in conjunction with the Code of Tax Rules and Procedures and who meet the academic degree requirement, must be entitled to the recognition of the incentive. He cites articles 99 and 118 of the Code of Tax Rules and Procedures, as well as numerals 27 and 28 of the General Police Law (Ley General de Policía). He cites vote number 49-2017 of this Chamber. Finally, he contests the condemnation of costs, as he believes that they have litigated with evident good faith. Furthermore, he believes that the fixing of personal costs made prudentially by the lower court (A quo) is irrational and disproportionate. For the reasons stated, he requests that the appeal be granted, the judgment annulled, and the complaint declared with merit in all its extremes.\n\n**III.- REGARDING THE PLAINTIFF'S APPEAL ON PROCEDURAL GROUNDS (DEL RECURSO DEL ACTOR POR RAZONES DE ORDEN PROCESAL):** The current article 587 of the Labor Code empowers the Chamber to hear the procedural defects (vicios de orden procesal) regulated therein. It is claimed that the judgment was handed down outside the legal time limit. Subsection 6) of the cited numeral establishes that the appeal is admissible for \"The judgment having been handed down outside the time provided for doing so\". The Court required the parties to express their conclusions within a period of three days (file incorporated on June 25, 2018, at 18:44:33). This order was notified on June 30 and July 5, both of 2018. The parties submitted the respective writings on the 4th and 9th of that same month and year, while the judgment was handed down on April 3, 2020. Numeral 511, whose violation is alleged, expressly stipulates: \"In matters of pure law, the judgment shall be handed down within the fifteen days following the answer to the complaint or counterclaim or, where appropriate, to the defenses (excepciones) raised, after granting a transfer for conclusions.\" The legal time limit to hand down judgment was clearly exceeded; however, it is not possible to declare the nullity (nulidad) sought by the plaintiff party, according to the reasons set forth immediately. Canon 537 of the Labor Code, before the reform by Law No. 9884, effective as of September 21 of the year 2020, established: \"Once the time limits for the issuance, documentation, and notification to the parties of the judgment have expired, with non-compliance by the body, what has been acted upon and resolved shall be null and the trial must be repeated before another judge, without prejudice to the corresponding civil and disciplinary responsibilities. Only the evidence and non-reproducible acts or proceedings that can be validly assessed at a later opportunity shall be exempt from said nullity.\" The nullity regime contemplated in the Labor Procedural Reform Law (Ley de Reforma Procesal Laboral) is based on the usual maxim in this matter, according to which nullity is not admissible by itself. In that sense, what is relevant here, numerals 474 and 475 ibidem, in their order, state: \"Procedural defects must be corrected, rectified or healed (subsanados o saneados) and nullity shall be decreed only when rectification is not possible.\" \"Nullities not claimed during the proceeding and at the indicated opportunities shall be deemed as definitively consented to and healed.\" Furthermore, from canon 470 of that same code, it is inferred that nullity should only be declared in case of violation of due process (debido proceso), the right of defense (derecho de defensa) or denial of access to justice. This Chamber has considered that the legal time limit provided for handing down judgment in matters of pure law is merely dilatory (ordenatorio). The nullity provided for in cases where that term is exceeded is with respect to those matters where the principle of immediacy (principio de inmediación) may be violated (article 471, subsection 7), ibidem). The nullity of the ruling in case of non-compliance with the time limit is in direct relation to the relevance of the principles of concentration and immediacy in the new structure of the labor process. What is protected with the provision of nullity in the event that the legal time limit for handing down judgment is exceeded is the conservation by the judging person of the direct and immediate impression derived from the personal taking of evidence, that is, the purpose is that the perception that this procedural act marks on the judging person does not become diluted over time.\n\nIn this way, in matters where it is not necessary to take evidence that requires immediate perception by the judge, such as witness testimony, party statements, among others, nullity should not be declared when that time limit has been exceeded, because in that case, the risk sought to be avoided does not arise, specifically that the judging person loses the immediate sense of the evidence.\n\n**IV.- ON THE MERITS:** The female and male plaintiffs base their claims on the fact that, as part of the State Tax Administration, the officials of the Fiscal Control Police perform duties of administration, oversight, and collection of public funds, through the prevention and investigation of the possible commission of customs, tax, and treasury offenses. They consider that the basis for their right is found in numerals 99 and 118 of the Code of Tax Norms and Procedures, normative provisions that contemplate the recognition of the payment of a non-competition (prohibición) allowance to all officials of the Income Area of the Ministry of Finance. The defendant, in contrast, denied that the members of the Fiscal Control Police fit into the necessary and required scenarios to impose and economically recognize the so-called non-competition (prohibición) for professional practice they seek, since their main functions or tasks are merely police-related, involving the prevention and repression of possible crimes (customs, tax, and treasury), as well as any other infraction provided for in our legislation, given that they are obligated to guarantee compliance with fiscal laws, pursue crimes of a tax nature, carry out raids, seizures, arrests, and inspect commercial establishments (article 28 of the General Police Law). On the other hand, it argues that, in salary-remuneration matters, the members of the aforementioned police force have a special, unique, and different regulation, as they are governed based on the provisions issued by the Budgetary Authority and the General Police Law (numerals 60, second paragraph, and 69 bis of the cited Autonomous Service Regulations of the Ministry of Finance, Executive Decree No. 25271).\n\n**V. ON THE MERITS BIS.** It was established as proven in the case file that *“The plaintiffs work for the Fiscal Control Police”* (proven fact 1 of the Trial Court's judgment). Furthermore, from the evidence contained in the case record, the following is noted: **a)** The following plaintiffs hold the position of Fiscal Police 1 and do not receive any item for the concept of non-competition (prohibición) or exclusive dedication allowance: **[Name 003]**, Bachelor in Criminology, Universidad Libre de Costa Rica as of 28-03-2015, is incorporated into the respective Professional Association; **[Name 004]**, 96 credits in Bachelor of Business Administration, Universidad Americana UAM, not incorporated into the respective Professional Association; **[Name 006]**, Diploma in Criminal Investigation and Organizational Security, emphasis in Criminal Investigation, Colegio Universitario de Cartago, 29-04-2016, incorporated into the respective Professional Association; **[Name 007]**, Bachelor in Criminology, Universidad Libre de Costa Rica dated 25-11-2011, incorporated into the respective Professional Association; **[Name 008]**, holds a Licentiate degree in Criminology, Universidad Libre de Costa Rica as of 01-11-2013, incorporated into the respective Professional Association; **[Name 009]**, graduate of Business Administration, emphasis in Accounting, Universidad Santa Lucía, 09-07-2010, incorporation into the respective Professional Association is not recorded; **[Name 010]** holds a Licentiate degree in Criminology, Universidad Libre de Costa Rica dated 28-03-2015, incorporated into the respective Professional Association; **[Name 011]** Bachelor in Criminology, Universidad Libre de Costa Rica. 01-11-2013; incorporated into the respective Professional Association; **[Name 012]**, Diploma in Criminal Investigation and Organizational Security, Colegio Universitario de Cartago, 29-11-1996, incorporated into the respective Professional Association; **[Name 013]** 105 Credits, Bachelor in Criminology, Universidad Libre de Costa Rica, 09-09-2011, incorporation into the respective Professional Association “not recorded”; **[Name 014]**, Bachelor in Criminology, Universidad Libre de Costa Rica dated 11-06-2011, incorporated into the respective Professional Association; **[Name 016]**, Bachelor in Criminology, Universidad Libre de Costa Rica dated 07-06-2014, incorporated into the respective Professional Association; **[Name 017]** holds a Licentiate degree in Law, Universidad Metropolitana Castro Carazo, 3-07-2015 incorporated into the respective Professional Association; **[Name 020]**, graduate of Psychology, Universidad Hispanoamericana, as of 14-11-2008, incorporation into the respective Professional Association is not recorded; **[Name 021]**, 97 credits Bachelor of Criminology, Universidad Libre Costa Rica, 2-9-2014; incorporation into the respective Professional Association is not recorded; and **[Name 022]**, 186 credits Licentiate degree in Law, Universidad Hispanoamericana, 26-12-2012; incorporated into the respective Professional Association; **b)** The plaintiffs: **[Name 002]** and **[Name 015]** hold the position of **Fiscal Police 2A**. The first holds a Licentiate degree in Law from Universidad Cristiana del Sur dated 8-12-2014 and the second holds a Bachelor's degree in Criminological Sciences from UNED dated 8-04-2006. Both are incorporated into the respective Professional Association; neither receives the payment for non-competition (prohibición) or exclusive dedication; **c)** The officials: **[Name 001]**; **[Name 005]**; and **[Name 018]** serve as **Fiscal Police 2B**. Regarding the first, no academic degree is recorded, he is incorporated into the respective Professional Association, and he does receive 65% non-competition (prohibición) pay. Similarly, Mr. [Name 018], who holds a Licentiate degree in Law, Universidad San José as of 30-08-2003, does receive the payment of 65% non-competition (prohibición). Mr. [Name 005] holds a Licentiate degree in Customs Administration, Universidad Metropolitana Castro Carazo as of 23-10-2015 and does not receive any payment for the concept of non-competition (prohibición) or exclusive dedication. **c)** The plaintiff **[Name 019]**, works as **Fiscal Police Chief 2**, holds a Licentiate degree in Law from Universidad San Juan de la Cruz dated 19-11-1999, is incorporated into the respective Professional Association, and is indeed paid 65% for the concept of non-competition (prohibición) (Certification No. DGPH-UDA-MANUAL-101-2018, issued by the Department of Human Potential Management, visible at images 218 to 239 of the Trial Court's electronic file).\n\nThe requirements for the position of fiscal police 1 are: “**ACADEMIC REQUIREMENTS** / Diploma or third year of university at a university or para-university teaching center in any related field of study / or second year completed in a university or para-university program related to the activities of the position and two years of experience in duties related to the position. / Title or certification for computer software courses (Word, Excel, Power Point, Internet, Email) from an Entity endorsed by the Consejo Superior de Educación or accredited by the Instituto Nacional de Aprendizaje), provided that the respective academic programs do not include courses of the same nature, passed and submitted by the interested parties.” It is therefore concluded that to hold the position of Policía Fiscal 1, the State does not require its officer to have a university academic degree along with membership in the respective Colegio Profesional (ibid). The related fields include Criminology and Criminalistics; Political Science; in Tax, Revenue and Customs matters; Business or Corporate Administration; Business or Corporate Administration with an emphasis in accounting, accountancy and in tax, revenue, and customs matters; Law and Law with an emphasis in treasury, tax, revenue or customs matters, international and administrative law.\n\nThe requirements for the position of fiscal police 2 are: “**ACADEMIC REQUIREMENTS** / Group A / University bachelor's degree in one of the related fields. (See detail on related fields). / Group B / Licentiate degree in one of the related fields. (See detail on related fields). / In both cases, title or certification for computer software courses (Word, Excel, Power Point, Internet, Email) from an Entity endorsed by the Consejo Superior de Educación or accredited by the Instituto Nacional de Aprendizaje), provided that the respective academic programs do not include courses of the same nature, passed and submitted by the interested parties. / **LEGAL REQUIREMENTS** / Group A and B / Up-to-date permit to carry weapons. (for handling State weapons) / Basic Police Course. / Up-to-date license to drive class B-1 vehicles. / Be Costa Rican. (Artículo 59 of the Ley General de Policía). / Membership in the respective Colegio Profesional, when its law so establishes for the practice of the corresponding degree and professional area. / **SPECIAL REQUIREMENTS** / Knowledge of the English Language, spoken and written (preferred)” (ibid).\n\nThe requirements for the position of fiscal police 3 are: “**ACADEMIC REQUIREMENTS** / Licentiate degree in any of the related fields. (See detail on related fields). / Title or certification for computer software courses (Word, Excel, Power Point, Internet, Email) from an Entity endorsed by the Consejo Superior de Educación or accredited by the Instituto Nacional de Aprendizaje), provided that the respective academic programs do not include courses of the same nature, passed and submitted by the interested parties. / **LEGAL REQUIREMENTS** / Up-to-date permit to carry weapons. (for handling State weapons) / Basic Police Course. / Up-to-date license to drive class B-1 vehicles. / Be Costa Rican. (Artículo 59 of the Ley General de Policía). / Membership in the respective Colegio Profesional, when its law so establishes for the practice of the corresponding degree and professional area. / **EXPERIENCE REQUIREMENTS** / Three years of Professional experience, related to police matters (*). / (*) Understood as experience gained in any police body established by the Ley General de Policía, in any international police body (duly certified and recognized nationally by the competent body), or, in the case of the Poder Judicial, that gained in the Organismo de Investigación Judicial. / **Special** / Knowledge of the English Language, spoken and written (preferred).”\n\nThe requirements for the position of chief fiscal police 1 are: “**ACADEMIC REQUIREMENTS** / Licentiate degree in any of the related fields. (See detail on related fields). / Title or certification for computer software courses (Word, Excel, Power Point, Internet, Email) from an Entity endorsed by the Consejo Superior de Educación or accredited by the Instituto Nacional de Aprendizaje), provided that the respective academic programs do not include courses of the same nature, passed and submitted by the interested parties. / **LEGAL REQUIREMENTS** / Up-to-date permit to carry weapons. (for handling State weapons) / Basic Police Course. / Up-to-date license to drive class B-1 vehicles. / Be Costa Rican. (Artículo 59 of the Ley General de Policía). / Be registered with the respective Colegio Profesional, when its law so establishes for the practice of the corresponding degree and professional area. / **EXPERIENCE REQUIREMENTS** / Six years of experience in the performance of professional duties related to police matters **(*)** / (*) Understood as experience gained in any police body established by the Ley General de Policía, in any international police body (duly certified and recognized nationally by the competent body), or, in the case of the Poder Judicial, that gained in the Organismo de Investigación Judicial. / **Special** / Knowledge of the English Language, spoken and written (preferred)” (ibid).\n\nThe class nature of the positions involved are: * Fiscal Police: “Execution of technical-operative police activities such as assisting higher-level personnel in support of the processes carried out in the Policía de Control Fiscal to prevent, detect, and repress tax evasion.” * Fiscal Police 2: “Execution of professional police activities related to intelligence processes, operations, and technical-legal advisory services, the exercise of which requires the application of methodologies and the issuance of professional opinions to prevent, detect, and repress tax evasion.” * Fiscal Police 3: “Execution of varied professional police activities of high complexity and difficulty related to the intelligence, operations, and technical-legal advisory processes of the Policía de Control Fiscal, and collaboration in the direction, supervision, and coordination of work teams in carrying out police operations and investigations or special activities, the execution of which requires prior experience and independent judgment, to prevent, detect, and repress tax evasion.” * Chief Fiscal Police 1: “Planning, direction, organization, coordination, supervision, and execution of police, professional, and technical duties that are the competence of a Department of the Dirección de Policía de Control Fiscal, with a nationwide scope of action.”\n\nOn the other hand, according to the regulations analyzed, the fiscal control police, in which the plaintiffs work, forms part of the police forces (article 6 of the Ley General de Policía), charged with protecting the tax interests of the State (paragraph 27 ibid).\n\nWithin the scope of their obligations and attributions, they have been assigned: “*a) Guarantee compliance with fiscal laws. / b) Assist the Ministry of Finance in everything required to control tax evasion. / c) Carry out all types of raids to pursue crimes of a tax nature. To conduct raids, they must have judicial authorization and comply with other legal conditions. / d) Inspect commercial establishments at any time. / e) Ensure respect for the Political Constitution, international treaties, laws, and respective regulations*” (article 28 ibidem). Furthermore, it is attached to the Ministry of Finance, as part of the Revenue Area of that ministerial entity. In this regard, the amendments introduced by the Law for the Strengthening of Tax Management (Ley de fortalecimiento de la Gestión Tributaria, law no. 9069 of September 10, 2012) to the Code of Tax Norms and Procedures, state, in what is relevant and in accordance with the provisions of article 99 of this latter regulation, that: “*In the case of the Tax Administration of the Ministry of Finance, when this Code grants a power or faculty to the Dirección General de Tributación, it shall be understood that it is also applicable to the Dirección General de Aduanas, the Dirección General de Hacienda, and the Dirección General de la Policía de Control Fiscal, within their spheres of competence*”. Additionally, numeral 166 of that same Code provides: “*For the purposes of application and interpretation of this title* (Taxpayer Rights and Guarantees), *‘Tax Administration’ shall be understood as the body, be it the Dirección General de Tributación, the Dirección General de Aduanas, as well as the Dirección General de Hacienda and the Dirección General de Policía de Control Fiscal, to which the law attributes management, regulatory, oversight, and tax collection powers*”. Likewise, by virtue of the scope of its powers and its location within the organizational structure of the cited ministry, through Decree No. 35940-H of March 12, 2010 (Regulations for the Organization and Functions of the Dirección de la Policía de Control Fiscal), its article 2 also regulates its powers, attributions, and duties, as follows: “*The Policía de Control Fiscal shall have as its object of competence the protection of the State's tax interests. To this end, it shall be in charge of preventing and investigating the possible commission of customs, tax, and treasury crimes, in aid of the corresponding judicial authorities; in addition to providing support to the Direcciones Generales de Tributación, de Hacienda, and de Aduanas in their control and oversight functions. For which purpose, in addition to the attributions granted by the General Police Law (Ley General de Policía), it shall have the same attributions, duties, and prohibitions granted to officials of the Tax Administration of the Ministry of Finance*”. That being said, regarding the issue of prohibition (prohibición), this Chamber, in a reiterative manner, has provided that this legal institution (instituto) entails a restriction on professional practice (see articles 56 and 74 of the Political Constitution), given that the officials subject to it are absolutely precluded from holding other public positions, as well as from performing, in the private sector, activities related to the positions they hold in the Public Administration and even activities unrelated to those positions, except for the exceptions established by law in each case. The foregoing is so, in protection of the public interest and based on a high ethical content, aimed at preventing whoever holds certain positions in the Public Administration from dedicating their time to other activities in the private sphere, as this could affect the necessary intensity in the fulfillment of the activities inherent to the function, or generate an undesirable confusion in the interests of one or the other field (private and public), which would eventually entail the sacrifice of the public interest for the benefit of the private interest. Thus, as can be deduced from the foregoing, the prohibition (prohibición) constitutes a limitation on a fundamental right (freedom to work) and, therefore, its imposition is a matter of legal reserve. Additionally, the recognition of economic compensation (compensación económica) to reward that restriction requires, additionally, that the norm creating the limitation (prohibition) or another norm envisages that possibility (the economic compensation) (Sala Segunda, judgments numbers 1056 of 8:55 a.m., of December 19, 2008 and 231 of 9:35 a.m., of March 20, 2009). Jurisprudentially, it has been considered that this legal institution (institución jurídica) operates automatically, that is, it is not within the powers of the official to request or renounce it, nor can the Administration grant it discretionally. It is consubstantial to the employment relationship by provision of the law and inherent to the service relationship (among many others, votes of the Sala Constitucional, numbers 1396 of 2:31 p.m., of March 22; 3370 of 10:30 a.m., of July 5 and 4494 of 11:18 a.m., of August 30, all from 1996 and of the Sala Segunda, numbers 171 of 2:30 p.m., of November 3, 1989; 333 of 10:30 a.m., of October 27, 1999 and 141 of 9:10 a.m., of March 26, 2003). Historically in our country, some public sector employees have been unable, by virtue of the institution of prohibition (prohibición), to exercise their profession privately (by way of example, see among many others, numerals 118 -formerly 113- of the Code of Tax Norms and Procedures; 9 and 244 of the Organic Law of the Judicial Branch; article 34 of the General Law of Internal Control and 14 of the Law against Corruption and Illicit Enrichment); however, the economic compensation (compensación económica) for that prohibition (prohibición) arose from the enactment of Law number 5867 of December 15, 1975. Subsequently, a series of laws were enacted through which the recognition of that economic compensation (retribución económica) was extended to the majority of officials who had, by reason of their positions, a specific prohibition (prohibición) on the practice of their profession (see among many others, Laws numbers 6008 of November 9, 1976; 6222 of May 2, 1978; 6451 of August 1, 1980; 6999 of September 3, 1985; 9097 of August 18, 1988; 6995 of July 22, 1985; 6982 of December 19, 1984; 7015 of November 22, 1985; 7018 of December 20, 1985; 7097 of August 18, 1988; 7111 of December 12, 1988, 7108 of November 8, 1988; 7333 of May 5, 1993; 7896 of July 30, 1999, 8292 of July 31, 2002 and 8422 of October 6, 2004). Under the foregoing scenario and being clear that the Policía de Control Fiscal forms part of the Tax Administration, it is important to assess what is regulated by article 118 of the Code of Tax Norms and Procedures, whose text states: “*The Directors General, the Sub-directors, the Heads or Deputy Heads of Department and Section, of the dependencies of the Tax Administration, as well as the full members of the Tax Administrative Tribunal and the acting substitutes, may not hold other public positions with or without an employment relationship, with the sole exception of teaching or functions performed with the authorization of their respective hierarchical superior, whose positions are only compensated by per diems*”.\n\nIn general, personnel of the entities cited above are prohibited, with the sole exception of teaching, from performing activities related to tax matters in the private sector. Likewise, said personnel are prohibited from filing claims on behalf of taxpayers or advising them in their arguments or submissions before any instance, unless it concerns their personal interests, those of their spouse, ascendants, descendants, siblings, parents-in-law, sons- or daughters-in-law, and brothers- or sisters-in-law. In the cases of exception referred to in this article, to avail oneself of them, their decision to make use of the exceptions provided in this Code must be communicated to the superior of the unit (Thus amended by Article 1 of law No. 5179 of February 27, 1973. Its numbering thus corrected by Article 6 of the Tax Justice Law No. 7535 of August 1, 1995, which transferred it from the former 113 to the current). That provision gave rise to the enactment of the cited Law No. 5867 of December 15, 1975 (Ley de Compensación por Pago de Prohibición) by which the salary bonus or economic compensation for prohibition (plus salarial o compensación económica por prohibición) was created, and the percentages of economic remuneration for that concept were set on the base salary of the Salary Scale of the Public Administration Salary Law, for the personnel of the Tax Administration who, by reason of their positions, were subject to the prohibition contained in Article 113 (now 118) of the Tax Code of Standards and Procedures (Código de Normas y Procedimientos Tributarios). Now, not all officials that hold positions in the units known as \"tax administrations\" are recipients of the salary bonus for prohibition since, as indicated in its Article 1, the law that originated this right established it \"for the personnel of the Tax Administration who are subject, by reason of their positions, to the prohibition contained in Article 113 of the Tax Code of Standards and Procedures\" already mentioned. Those rules refer to the \"personnel of the Tax Administration,\" which Article 99 defines as the \"administrative body responsible for managing and supervising tributes, whether it is the treasury or other public entities that are active subjects, in accordance with Articles 11 and 14 of this Code\"; specifying the \"active subject\" as the entity to which the tribute is owed. Therefore, and based on the referenced numerals (Article 99 and 166 of the Tax Code of Standards and Procedures, normative provisions that, in turn, are developed, among many others, in numeral 2 of the Organization and Functioning Regulations of the Dirección de la Policía Fiscal), it is noted that the personnel of said police force are responsible for the management and supervision functions of tributes and, consequently, are covered by the legal prohibition provided for in Article 118 ibidem (former 113). Now, for the purpose of verifying whether the legal system provides for them a compensation by virtue of the restriction that said prohibition entails, it is appropriate to assess what Law No. 5867 regulates. Article 1 of this regulation prescribes: \"For the personnel of the Tax Administration who, by reason of their positions, are subject to the prohibition contained in Article 118 of the Tax Code of Standards and Procedures, except for the members of the Administrative Tax Tribunal, the following economic compensation is established on the base salary of the salary scale of the Public Administration Salary Law: / a) Sixty-five percent (65%) for professionals at the bachelor's degree (licenciatura) level or another superior academic degree. / b) Forty-five percent (45%) for graduates of bachelor's degree (licenciatura) or master's degree (maestría) programs. / c) Thirty percent (30%) for those who hold a university bachelor's degree (bachilleres universitarios) or have passed the fourth year of their respective university career. / d) Twenty-five percent (25%) for those who have passed the third university year or have an equivalent preparation. / In all cases, within the aforementioned discipline. / The following officials shall be entitled to the benefits granted by this article, according to the established percentages, subject to the same obligations and prohibitions of this law: / 1) Those who hold chief positions in the basic financial organization of the State, according to Article 2 of the Law of the Financial Administration of the Republic, No. 1279, of May 2, 1951 and its amendments. / 2) Those who occupy ‘técnicos’ and ‘técnicos profesionales’ positions in the National Budget Office (Oficina de Presupuesto Nacional), the National Treasury (Tesorería Nacional), the Mechanized Technical Office of the Ministry of Finance (Oficina Técnica Mecanizada del Ministerio de Hacienda), the General Directorate of Industries of the Ministry of Industry, Energy and Mines (Dirección General de Industrias del Ministerio de Industria, Energía y Minas) and the General Forestry Directorate of the Ministry of Agriculture (Dirección General Forestal del Ministerio de Agricultura); also, the servers of the General Directorate of Civil Service (Dirección General de Servicio Civil) who occupy positions in the technical and professional series, the officials of the General Directorate of Information Technology of the Ministry of Public Works and Transport (Dirección General de Informática del Ministerio de Obras Públicas y Transportes), those of the Computing Center of the Ministry of Public Security (Centro de Cómputo del Ministerio de Seguridad Pública) and the officials of the General Directorate of Taxation (Dirección General de Tributación) who enjoy this benefit. / 3) The Head of the Budget Control Office of the Ministry of Finance. / 4) The customs administrators, in accordance with the procedures of general rule No. 31 of the Ordinary and Extraordinary Budget Law of the Government of the Republic for the year 1982, No. 6700, of December 23, 1981. / To apply this article, the ‘técnicos’ officials cited in numeral 2) above shall be entitled to the prohibition benefit, provided they meet the requirements of the position or have an equivalent combination, in the judgment of the General Directorate of Civil Service. However, except for the highest requirements, the compensation for officials who occupy positions in the ‘technical and professional’ series shall be made according to the primary requirement of the position they hold. / The benefits and prohibitions indicated in this article and its amendments include the technical personnel of the internal audit of the Joint Institute of Social Assistance (IMAS).\" Therefore, given that the plaintiffs are subject to the prohibition, it is appropriate to assess the requirements demanded by the positions held by them, as well as their professional status for the purpose of determining whether they conform to the parameters set forth in numeral 1 of the aforementioned law. Regarding the plaintiffs who hold the status of having a diploma from a university college (los actores [Nombre 006] and [Nombre 012]), it should be highlighted that said situation is not covered by the rule that recognizes the remuneration for this concept.\n\nRegarding the other actors, it must be taken into account that the recognition of the right sought is subject to the date of the enactment of the reform of the Código de Normas y Procedimientos Tributarios, by means of Ley N° 9069 of September 10, 2012. Now then, with respect to the plaintiffs who serve as *Policía Fiscal 1*, note that said position requires as an academic requirement \"*Diplomado or third university year at a university or para-university teaching center in one of the relevant careers / Second year approved in a university or para-university career relevant to the activities of the position and two years of experience in tasks related to the position*\"; consequently, the recognition does not cover them. In contrast, in the case of Mr. [Nombre 015], who has a Bachelor's degree in Criminological Sciences from UNED since 4-08-2006 and serves as *Policía Fiscal 2A*, whose academic requirement establishes: \"*University Bachelor's degree in one of the relevant careers*\", being in the situation provided for in subsection c) of article 1 of the cited Law (N° 5867), he would be entitled to a 30% prohibition (prohibición) payment. For her part, the plaintiff [Nombre 002] also holds the position of *Policía Fiscal 2A*; it was evidenced in the case file that her licentiate degree is from December 8, 2014, according to a certification provided by the defendant, but the moment when she obtained the aforementioned academic requirement of a university Bachelor's degree, the degree required for the position she holds, is not evident. This being so, the 30% to which she is entitled must be granted from the date on which she accredited her Bachelor's status in the administrative file, with the retroactivity limit, of course, to the date from which she has served in the position and the date of the aforementioned law. Likewise, Messrs. [Nombre 001]; [Nombre 005] and [Nombre 018] hold the position of *Policía Fiscal 2B*; and [Nombre 019] serves as *Policía Fiscal Jefe 2*, positions for which the requirement of \"*Licentiate degree in one of the relevant careers*\" is demanded, whereby they are entitled to the benefit from the moment of the enactment of the rule, except in the case of Mr. [Nombre 005], who obtained his licentiate degree on October 23, 2015. However, Messrs. [Nombre 001], [Nombre 018] and [Nombre 019] already receive a 65% prohibition (prohibición) payment, for which reason they have no interest whatsoever in the recognition sought through the action. Given the manner in which it resolves, there is no need to address the remaining grievances formulated in the appeal.\n\n**VI.- COSTS (COSTAS):** Regarding the request to exempt the plaintiff from the payment of costs (costas), it must be considered that article 562 of the Código de Trabajo, in what is relevant, stipulates: \"*In every judgment,… the losing party shall be ordered to pay the personal and procedural costs (costas personales y procesales) incurred...*\". The following numeral raises the possibility of exempting the losing party from these expenses as follows: \"*Notwithstanding, the losing party may be exempted from the payment of personal costs and even procedural costs, when: / 1) The litigation was conducted with evident good faith. / 2) The claims have partially succeeded. / 3) When there has been reciprocal defeat. / The exoneration must always be reasoned. / The party that denied evident claims which the result of the process indicates should have been accepted, did not attend the entire hearing, alleged bribed witnesses or false witnesses and documents, did not offer any proof to justify its claim or defenses, if they were based on disputed facts, may not be considered to be acting in good faith. / The exoneration of costs shall be mandatory, if a special norm so provides*\". Having analyzed the circumstances of the specific case, it is considered that the losing plaintiffs should be exempted from the payment of said expenses, since it is considered that they acted in good faith, under the belief that they had a right to what was claimed, especially given that what is resolved on the point has to do with their tasks in tax matters.\n\n**VII.- FINAL CONSIDERATIONS:** As a corollary to the foregoing, it is appropriate to partially grant the appeal and annul the appealed judgment in that it denied the claim with respect to plaintiffs [Nombre 015]; [Nombre 002] and [Nombre 005], as well as in that it imposed the payment of costs (costas) on the plaintiff. In its place, it is appropriate to partially uphold the claim and order the defendant to pay the prohibition (prohibición) payment consisting of 30% of the base salary to plaintiffs [Nombre 015] and [Nombre 002]; and 65% to Mr. [Nombre 005], as well as the salary differences generated by this concept since September 28, 2012 (effective date of Law Number 9069), except in the cases of [Nombre 002], to whom it must be granted from the date on which she accredited her Bachelor's status in the administrative file, with the retroactivity limit, of course, to the date from which she has served in the position and the date of the mentioned law; and plaintiff [Nombre 005] from October 23, 2015, for the reasons set forth in the preceding recital. Likewise, the defendant is ordered to pay the differences produced by said concept in the Christmas bonus (aguinaldo), school salary (salario escolar), vacations, and overtime, in case they worked them, and for the periods corresponding to each of the plaintiffs; the claim corresponding to differences on any other item directly related to the salary must be rejected, because admitting a request of that nature limits the exercise of the defendant's right of defense. Thus, in order to protect that guarantee, the requests made must be express, clear, and specific, without it being viable to accept any of that nature, which would be to the detriment of the counterparty, added to the fact that it would leave an aspect for the execution of judgment phase that must be resolved in the plenary (see, among many others, Judgments number 35 at 11:05 a.m., of January 12; 86 at 12:20 p.m., of January 16; 160 at 11:10 a.m., of January 24; 623 at 4:20 p.m. and 624 at 4:25 p.m., both of April 10; and 727 at 9:40 a.m., of April 27, all of 2018). The payment of interest and indexation also proceeds from the moment each of the amounts owed arose, until the date of payment. Regarding interest at the rate set by the Banco Nacional de Costa Rica for certificates of deposit in colones at a six-month term, according to article 1163 of the Civil Code, because the plaintiff expressly requested it in the statement of claim. Social security contributions must be deducted from what is granted, and those corresponding to the worker must be subtracted; charges and deductions that must be transferred to the Caja Costarricense de Seguro Social. The determination and payment of the debts must be made by the Administration, without prejudice to the plaintiff proceeding to resort to the execution of judgment phase. The defendant must be ordered to pay both costs (costas) and set the personal costs (costas personales) at twenty percent of the condemnation amount until the judgment becomes final (article 562 of said Code). In all other respects, said ruling must be upheld, except in that it imposed the condemnation of costs (costas) on the plaintiffs who were unsuccessful, who should be exonerated from the payment of said expenses.\n\nTHEREFORE:\n\nThe appeal is partially granted, and the appealed judgment is annulled insofar as it denied the claim with respect to the plaintiffs [Name 015]; [Name 002]; and [Name 005], as well as insofar as it imposed the payment of costs on the plaintiffs. In its place, the claim is partially upheld, and the defendant is ordered to pay the prohibition consisting of thirty percent of the base salary for the plaintiffs [Name 015] and [Name 002], and sixty-five percent for Mr. [Name 005], as well as the salary differentials generated by this concept from September twenty-eighth, two thousand twelve (the effective date of Law number nine thousand sixty-nine), except in the case of [Name 002], to whom it must be recognized from the date on which he accredited his high school diploma status in the administrative file, with the retroactive limit, of course, being the date from which he has served in the position and the date of the aforementioned law; and to [Name 005] from October twenty-third, two thousand fifteen. Likewise, the payment of the differentials produced by such concept in the Christmas bonus, school bonus, vacations, and overtime, should the latter have been worked, is appropriate, and for the periods corresponding to each of the cited plaintiffs, rejecting the claim corresponding to the differentials on any other item directly related to salary. The payment of interest and indexation from the moment each of the amounts owed arose, up to the date of payment, also proceeds. Regarding interest, in accordance with article one thousand one hundred sixty-three of the Civil Code, that is, at the rate set by the Banco Nacional de Costa Rica for certificates of deposit in colones at a six-month term. From the amount granted, the social security contributions must be deducted, and those corresponding to the worker must be subtracted; charges and deductions that must be transferred to the Caja Costarricense de Seguro Social. The determination and payment of the debts must be made by the Administration, without prejudice to the plaintiffs proceeding to resort to the judgment execution phase. Costs are to be borne by the defendant, and personal costs are set at fifteen percent of the condemnation amount until the judgment becomes final. In all other respects, said ruling is upheld, except insofar as it imposed the condemnation of costs on the unsuccessful plaintiffs, who are exonerated from the payment of said expenses.\n\nLuis Porfirio Sánchez Rodríguez
\"Municipalidad de Dota\"
Planning Commission
CSP-005-2024
Planning Commission
session 005-2024 held at
eighteen hours on May twenty-second,
two thousand twenty-four.
\n\nGiven in the city of San José, on the twenty-third day of the month of November of two thousand sixty-six.-\n\nSERGIO ALFARO SALAS.- JULIA VARELA ARAYA.- NATALIA VARGAS CASCANTE.-\n\nJORGE ENRIQUE OLASO ÁLVAREZ.- JORGE LUIS VILLALOBOS VOLIO.- JOSÉ JOAQUÍN VILLALOBOS SOTO.-\n\nSERGIO ALFARO SALAS.-\n\nLegal Affairs Directorate\n\n1 time/s.- (Order 82142-25-W2).- O. C. N° 34-2006.-D. G.- — C. U2006001558.\n\n| \n \n \n Roxana Chacón Artavia\n \n | \n \n \n \n \n | \n \n \n \n Olman Gerardo Ugalde Gonzalez\n \n | \n
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