b) The constitutionality of Article 2 of the legislative initiative is consulted, specifically regarding the added numeral 67 subsection e) because it contains a vague, broad, and indeterminate concept; specifically, the infraction referring to the non-compliance with \\\"recommendations,\\\" since it is not specified what should be understood as a recommendation that enables the deployment of the State's punitive power. The constitutionality of Article 2 of the bill is also consulted, regarding numeral 67 subsection a) that is added to Law No. 7664, and it is alleged that it omits to indicate which administrative authority will decree the technical measures whose non-compliance enables the imposition of an administrative sanction. It is consulted whether both provisions are contrary to the principles of specificity (tipicidad) and prohibition of arbitrariness (interdicción de la arbitrariedad).
c) The constitutionality of Article 2 of the bill, which adds Article 67 to Law No. 7664, is consulted, for violation of the principles of due process and the right of defense, since they allege that the absence of an administrative tribunal to instruct and direct the administrative sanctioning proceedings that arise as a result of the new infractions would violate: i) the right of defense and the basic guarantees of due process enshrined in Article 8 of the American Convention on Human Rights; ii) it would promote the emergence of nullity defects in the development of the administrative procedure, as a consequence of the absence of an administrative tribunal with specialized personnel to instruct the proceedings.
VI.- ON THE PHYTOSANITARY COMPETENCIES OF THE STATE. The Servicio Fitosanitario del Estado (SFE) is a body attached to the Ministry of Agriculture and Livestock, created in 1997 through Law No. 7664, Phytosanitary Protection Law (Ley de Protección Fitosanitaria), with the fundamental objective of complying with the Agreement on Sanitary and Phytosanitary Measures of the World Trade Organization (WTO). The SFE controls and regulates the commercial exchange of agricultural products, both in import and export, the registration, control, and regulation of chemical and biological substances for agricultural use (pesticides, fertilizers, biological substances, and other related products), their quality control and the maximum residue limits (MRLs) of pesticides in fresh produce, certifies the phytosanitary condition of products for export, maintains surveillance and control of pests of economic importance and of those pests not present in the country that may represent a potential threat to national agricultural production. According to Law No. 7664, the objectives of the Service are to protect plants from damages caused by pests; to avoid and prevent the introduction and spread of pests that threaten food security; to promote integrated pest management within sustainable development; to regulate the use and management of chemical, biological, or related substances and equipment to apply them in agriculture, as well as their registration, importation, quality, and residues, while seeking to protect human health and the environment; and to prevent phytosanitary measures from unnecessarily constituting obstacles to international trade. (https://www.sfe.go.cr). At the international level, the Food and Agriculture Organization of the United Nations (FAO) adopted in 1952 the International Plant Protection Convention (IPPC), an international treaty whose purpose is to achieve coordinated and effective action to prevent and combat the introduction and spread of pests of plants and plant products. The Convention goes beyond the protection of cultivated plants to the protection of natural flora and products of plant origin. It takes into account both direct and indirect damage caused by pests, thereby including weeds. It also covers vehicles, aircraft and ships, containers, warehouses, soil, and other objects or materials that may harbor or spread pests. The Convention provides a framework and a forum for international cooperation, harmonization, and technical exchange among the contracting parties. Its implementation involves the collaboration of national plant protection organizations (NPPO) – the official services established by governments to fulfill the functions specified in the IPPC– and regional plant protection organizations (RPPOs), which may function as regional coordination bodies for the fulfillment of the IPPC's objectives. Costa Rica signed the convention on April 28, 1952, incorporated it into the legal system through Law No.1970 of October 26, 1955, and it was ratified on July 23, 1973. The FAO Conference, at its 29th session (November 1997), approved extensive amendments to the Convention, which were accepted by Costa Rica (https://www.wikiwand.com/es/Organizaci%C3%B3n_de_las_Naciones_Unidas_para_la_Alimentaci%C3%B3n_y_la_Agricultura#Convenci%C3%B3n_Internacional_de_Protecci%C3%B3n_Fitosanitaria). Thus, it is clear that the functioning of this body is closely linked to the right to health, to a healthy and ecologically balanced environment, and to food security.
VII.- CONSTITUTIONAL BASIS OF PHYTOSANITARY PROTECTION MEASURES. Phytosanitary protection measures have constitutional support, insofar as they seek to safeguard values of great importance: health (Art. 21), the protection of consumer rights, specifically to health and the environment (Art. 46), as well as the stimulation of agricultural production simultaneously with the protection of the environment (Art. 50). Such constitutional principles and rights were taken into consideration by the legislator when enacting the Phytosanitary Protection Law (Ley de Protección Fitosanitaria). This has been recognized by this Tribunal in multiple resolutions. For example, in judgment No.2009-013606, it stated:
“Article 1 of the Phytosanitary Protection Law clearly states: “The phytosanitary protection measures established in this law and its regulations are hereby declared of public interest and mandatory application.” This law addresses principles and fundamental needs for the country's stability, such as food security and economic activity based on agricultural production. This finds its basis in several articles of our Political Constitution. Thus, in accordance with Article 50, \\\"the State shall seek the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth.\\\" Furthermore, according to this norm, it must guarantee, defend, and preserve every person's right to a healthy and ecologically balanced environment, for which the law shall determine the corresponding responsibilities and sanctions. On the other hand, from Article 21 of the Political Constitution, which enshrines the inviolability of human life, the right to health, to the physical, mental, and social well-being of individuals, and the State's obligation to protect them are derived (Constitutional Chamber, Voto No. 3705-93 of 3:00 p.m. on July 30, 1993). Likewise, Article 46 in fine enshrines the right of all consumers and users to the protection of their health, environment, security, and economic interests. These were the constitutional principles that the legislator took into consideration when enacting the Phytosanitary Protection Law, No. 7664 of April 8, 1997. Among its main objectives are avoiding and preventing the introduction and spread of pests, protecting plants from the damages caused by them, regulating their control, promoting integrated pest management within sustainable development programs, regulating the use and management of chemical, biological, or related substances and the equipment to apply them in agriculture, as well as preventing phytosanitary measures from constituting an unnecessary obstacle to international trade (Article 2).
The Law provides a special procedure for addressing phytosanitary emergencies that may compromise the country's food security and economy, and grants the Administration certain powers to adopt all measures that allow control of a situation of that nature. If it is the State's constitutional duty to organize national production, it is consequently also its duty to design control mechanisms for pests that may negatively affect it, for which purpose different techniques are used, such as the declaration of quarantines, the destruction of plants, entry control and control in the country of origin of plants or biological control agents, integrated pest management, among others.”
The administrative powers granted to the State in this matter also aim to guarantee the consumption of healthy and safe food products, in order to protect the health of people, animals, and plants, or to ensure the food supply of the population. It is within the framework of these competencies, regulations, and accompanying fundamental rights that the formulated constitutional consultation must be analyzed.
VIII.- ON THE CONSTITUTIONALITY OF ARTICLE 1 OF THE BILL, WHICH REFORMS ARTICLE 18 OF LAW NO. 7664. The legislator, in Article 1 of the Phytosanitary Protection Law No. 7664, declares the phytosanitary protection measures established in said law and its regulations to be of public interest and mandatory application. Two of the objectives of the regulation are to protect plants from damages caused by pests, as well as to avoid and prevent the introduction and spread of pests that threaten food security and economic activity based on agricultural production (Article 2 subsections a) and b). In order to provide the administration with appropriate mechanisms to achieve these objectives and the others established by the law, Article 8 confers on phytosanitary authorities a series of powers, such as inspecting plants where they are cultivated, packed, processed, stored, or marketed, and national and international means of transport (Article 8 subsections a) and d), given that foci of pest infection can arise at any stage of agricultural or agro-industrial activity.
\n\nThey are also empowered to take samples for analysis, to retain or inspect them, to carry out or supervise the analysis; to order treatments, to execute or supervise them; to order and supervise industrialization and post-entry quarantine (cuarentena de post-entrada); to seize plants, biological control agents (agentes de control biológico) and other organisms for agricultural use, chemical, biological or related substances and application equipment, to destroy them, to reject their entry or to re-ship them, in accordance with the provisions of Law No. 7664 and its regulations (Article 8, subsection d).\n\nNow, the legislative initiative under analysis adds to Article 18 of Law No. 7664 the phrase \"and of economic importance (importancia económica)\", which enables the Executive Branch, in addition to restricting, regulating, and prohibiting the production, commercialization, or transit of plants or any other material for the purpose of preventing, combating, or eradicating pests of quarantine importance (plagas de importancia cuarentenal), to also take such measures in order to prevent, combat, or eradicate \"pests of economic importance (plagas de importancia económica).\" That latter concept, the constitutionality of which the consulting deputies doubt, is not foreign to the Phytosanitary Protection Law No. 7664. Chapter III, referring to pest control, provides for mandatory measures to prevent and eradicate \"pests of economic or quarantine importance.\" For example, numeral 12 imposes the obligation to report the presence of \"pests of economic or quarantine importance\" to the Ministry of Agriculture and Livestock; Article 13 refers to the declaration of emergency due to \"pests of quarantine or economic importance\" that threaten agricultural production. Precept 14 establishes the mandatory nature of complying with the technical measures that the Executive Branch adopts when the \"State Phytosanitary Service (Servicio Fitosanitario del Estado) has verified the existence of a pest of economic or quarantine importance,\" while numeral 22, third paragraph, provides the following: \"Article 22. Phytosanitary regulation of propagation plants. (...) 'When propagation plant material is affected by a pest of quarantine or economic importance and it is technically required, the State Phytosanitary Service may seize it and order its destruction without any state liability.'\"\n\nNow, the deputies consult whether the provision is unconstitutional, since the use of an undefined legal concept results in the introduction of \"legal uncertainty to the bill under consultation, which becomes unconstitutional due to a violation of the constitutional principle of reasonableness.\" They note that the concept is not defined in the law and, due to its vagueness and indeterminacy, the powers provided in Article 18, as amended by the bill, to restrict the freedom of commerce, enshrined in numeral 46 of the Political Constitution, are excessive and injure the principles of the prohibition of arbitrariness (interdicción de la arbitrariedad) and reasonableness.\n\nIn this regard, it must be noted that the Phytosanitary Protection Law, in Article 3, establishes that the technical definitions on phytosanitary matters will be included in the regulation of the law. Regarding the terms \"quarantine pest\" —already provided for in Article 18 of Law No. 7664— and \"pest of economic importance,\" which is added to that numeral in the bill under consultation, Executive Decree No. 26921 of March 20, 1998, \"Regulation to the Phytosanitary Protection Law,\" establishes in Article 2:\n\n\"Article 2 of definitions. For the purposes of this regulation, as well as the terms used in the Phytosanitary Protection Law, the following shall be understood as:\n\n(...)\n- Quarantine pest: One that may have potential economic importance for the endangered area, even though the pest does not exist or, if it exists, is not widespread and is under official control.\n\n- Pest of Economic Importance: A pest existing and dispersed in the country that, due to the damage it causes to plants, results in economic losses.\"\n\nTherefore, the difference between the two terms is that a quarantine pest is a potential risk, whereas a pest of economic importance is an existing risk. Hence, the questioned concept is indeed defined in the regulation to Law No. 7664, as was expressly enabled or permitted by Article 3 of said law. The absence of a technical definition in Law No. 7664 for \"pest of economic importance\" does not render Article 18, as amended by the bill under consultation, unconstitutional for injury to the principle of legal certainty; rather, it stems from a decision adopted by the legislator in the exercise of the powers conferred by numeral 121, subsection 1) of the Political Constitution, and is legitimately complemented through the regulatory development that establishes the conceptual framework that the consulting deputies find lacking. It is therefore a matter of normative integration and complementation through the powers regulated in ordinal 140, subsections 3) and 18) of the constitutional text, which provide the framework of precision for the application of the legal concept referred to, laying down the bases and parameters so that, in the specific application of the regulations, it can be established with clarity and precision. In short, that framework eliminates the risk of arbitrariness or discretionary exercise insofar as the consulted norm does not confer a power of discretionary content, but rather imposes a relevant concept, \"pest of economic importance,\" the concurrence of which must be verified in each specific case, in order to ascertain whether or not the normative premise is present, as the grounds (objective element) for those actions. Hence, the uncertainty concerning this alluded concept that is being consulted is not produced.\n\nThe possible unconstitutionality of Article 1 of the bill is also consulted, which amends Article 18 of Law No. 7664 in the manner already explained, adding the authorization for the Executive Branch to restrict economic activities in order to combat \"pests of economic importance,\" because it authorizes the restriction, regulation, and prohibition of the production, commercialization, or transit of plants and \"any other material,\" since the breadth of such expression could infringe the principle of the prohibition of arbitrariness, as the provision could unconstitutionally authorize the Executive Branch to arbitrarily deploy restrictions, regulations, and prohibitions on commercialization, production, and transit, by allowing such limitations with respect to \"any other material.\"\n\nIt is the criterion of the Chamber that the consulted provision does not injure the principle of the prohibition of arbitrariness, for the following reasons. In numeral 15 of Law No. 7664, related to the obligation of owners and occupants, under any title, to combat pests of economic or quarantine importance and destroy the sources of infection or infestation, and the possibility that, if they fail to do so, the State Phytosanitary Service carries out the control work and charges the responsible party for the work performed, it is clear that the sources of infection of pests affecting plants can be found both on the plants themselves, as well as on other parts of the plant, and in the materials used for their packaging, storage, and transportation. Thus, the possibility of restricting the transit of \"any other material\" must be understood as any other material that may be a source of infection for the pest that must be combated or prevented, such as packaging, containers, or implements for transportation and storage. Again, the comprehensive application and understanding of Law No. 7664 allow for giving content to the undefined concept that supports this consulted aspect, avoiding the degree of uncertainty alleged and, with it, potential applications with abstract parameters, foreign to those that have been legally defined.\n\nTherefore, the consultation is resolved in the sense that this aspect of the consulted provision is not unconstitutional, if interpreted in the indicated sense.\n\nRegarding the alleged unconstitutionality for injury to the principles of the prohibition of arbitrariness and reasonableness, because, in the opinion of the consulting deputies, the legislative initiative expresses an excessive regulatory claim on the part of the Legislative Branch, by containing an extremely broad phrase, such as \"pests of economic importance,\" and that a posteriori, it could unconstitutionally authorize the Executive Branch to arbitrarily deploy restrictions, regulations, and prohibitions on commercialization, production, and transit, in clear violation of the constitutional principle of the prohibition of arbitrariness, the Chamber considers that the provision of the consulted bill also does not infringe such constitutional principles. It is observed that the Phytosanitary Protection Law describes in detail the aspects that the State Phytosanitary Service, or where appropriate, the Executive Branch, must consider when issuing and applying phytosanitary measures, such as those provided for in Article 18, amended by Article 1 of the bill; to this effect, Article 44 states:\n\n\"Article 44. Nature of the measures.\n\nThe phytosanitary measures and sanitary protection measures issued pursuant to this law must:\n\na) Be based on scientific principles, considering, where appropriate, geographical conditions and other pertinent factors.\n\nb) Take into account the standards, guidelines, or recommendations of the relevant international organizations.\n\nc) Be applied in a manner that does not arbitrarily or unjustifiably discriminate against imports of products from countries where identical or similar conditions prevail.\n\nd) Be applied in a manner that does not constitute a disguised restriction on international trade.\"\n\nThus, the State Phytosanitary Service and the Executive Branch must adopt phytosanitary measures based on scientific criteria and consider, where appropriate, geographical conditions.\n\nFurthermore, the rules, guidelines, or recommendations of the relevant international organizations on this matter must be considered. Such rules are consistent with the general principle stipulated in Article 16 of the General Law of Public Administration (Ley General de la Administración Pública) and with the obligation to state the reasons for administrative acts that impose obligations, or limit, suppress, or deny subjective rights (Art. 136, subsection a) of the LGAP). Additionally, Chapter V of Law N.7664 establishes guidelines for the preparation, application, and observance of phytosanitary measures. In the same vein, numeral 45 obliges the State Phytosanitary Service (Servicio Fitosanitario del Estado) to ensure that phytosanitary measures are based on an adequate assessment of existing risks to the life and health of persons or the protection of plants and shall contemplate risk assessment techniques developed by the relevant international organizations, considering in the final paragraph five factors when assessing risks (existing scientific evidence; relevant production processes and methods; relevant inspection, sampling, and testing methods, among others -Article 45, final paragraph-).\n\nWith respect to \"pests of economic importance\" (plagas de importancia económica), a term incorporated into Article 18 of Law N.7664 by Article 2 of the draft law under consultation, it is not observed that it violates the principle of the prohibition of arbitrariness (principio de interdicción de la arbitrariedad) because the legal provisions mentioned in the previous paragraph exhaustively determine the channel for administrative activity when issuing phytosanitary measures such as those provided for in Article 18, as amended by the draft law (the restriction, regulation, and prohibition of the production, commercialization, or transit of plants and any other material), for the purpose of preventing, combating, or eradicating pests of economic importance. Therefore, the unconstitutionality of the norm under consultation due to violation of that constitutional principle is not verified. It is the criterion of this Tribunal that such objections are not related to the constitutionality of the questioned provision of the draft law, but rather to its application, due to an excess in the powers of the State Phytosanitary Service (Servicio Fitosanitario del Estado) and the Executive Branch, to the detriment of the rights of the administered parties. Thus, the optional constitutional consultation of constitutionality is not the process provided for its examination, but rather the amparo appeal, or as the case may be, the corresponding ordinary jurisdictional avenue.\n\nFinally, regarding the consultation on the possible breach of the principle of reasonableness (principio de razonabilidad) by Article 18 of the legislative initiative, as amended by Article 1 of the draft law, the grounds are not sufficiently developed. It is argued that any provision restricting rights must affect the legal sphere of individuals as little as possible, and it is questioned whether the provision under consultation, by authorizing the Executive Branch to restrict, regulate, and prohibit the production, commercialization, or transit of plants and any other material for the purpose of preventing or eradicating \"pests of economic importance\" (plagas de importancia económica), a term which, due to its indeterminacy and vagueness, provides an extremely wide margin for interference and impact on the freedom of commerce, to the detriment of the freedom of commerce, could be unconstitutional.\n\nIn the first place, as indicated supra, the phrase under consultation from Article 1 of the draft law, which amends Article 18 of Law N.7664, is not a vague or indeterminate expression within the context of Law N.7664 and its regulations. On the other hand, regarding the alleged infringement of the principle of reasonableness (principio de razonabilidad), the consultation of constitutionality is not sufficiently substantiated, as it fails to expound, analyze, and develop the content of the consulted provision in order to relate and contrast it with the postulates of the principles of reasonableness and proportionality (principios de razonabilidad y proporcionalidad) (and the basic components of proportionality: legitimacy, suitability, necessity, and proportionality stricto sensu) for the purpose of substantiating the consultation of constitutionality, as provided in numerals 96 b) and 99 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional). Numeral 18 of Law N.7664, as amended by Article 1 of the draft law under consultation, is not contrasted with the analytical instrument for the validity of constitutional limitations, which is reasonableness and proportionality, nor is it substantiated why the impact is unreasonable due to being unsuitable, unnecessary, or disproportionate in a strict sense. Ultimately, there is no precise and sufficient argumentation regarding this ground of unconstitutionality.\n\nIt should be noted that the Law on Phytosanitary Protection (Ley de Protección Fitosanitaria), in its Article 46, determines that the State Phytosanitary Service (Servicio Fitosanitario del Estado) and, where appropriate, the Executive Branch, must weigh the economic factors detailed therein in the risk assessment (evaluación de riesgo), in order to determine the degree of phytosanitary protection required to prevent or combat it through the phytosanitary measures provided for in the law, and its final paragraph states:\n\n\"Article 46. Economic factors.\n\n(...)\"In determining the adequate level of phytosanitary protection, the Service shall consider the objective of minimizing negative effects on trade. When phytosanitary measures are established or maintained to achieve the adequate level of phytosanitary protection, it shall ensure that such measures, based on their technical and economic feasibility, do not entail a degree of trade restriction greater than required to achieve such protection. Should another less restrictive measure exist, that is technically and economically available and useful for achieving the adequate level of phytosanitary protection, it must be opted for and applied.\"\n\nThus, the measures adopted by the State Phytosanitary Service (Servicio Fitosanitario del Estado), in the situations authorized in Law 7664, are consistent with the principle of proportionality (principio de proporcionalidad), since the magnitude of the risk to plants posed by \"pests of economic importance\" (plagas de importancia económica), in the scenario provided for in Article 18 of Law N.7664, as amended by Article 1 of the draft law, must be weighed, and the degree of phytosanitary protection required to face it must be established, in a measure that generates the minimum possible impact on trade. Consequently, the provision is consistent with the principle of proportionality at the time of the necessary weighing of public interests, such as the protection of plants to guarantee the right to food, food security, and the protection of the economic activity based on agricultural production, against particular interests such as the freedom of commerce. In conclusion, there is no unconstitutionality in Article 18 of Law N.7664, as amended by the draft law under consultation, for the alleged reason.\n\nIX.- ON THE PRINCIPLE OF LEGAL CERTAINTY (PRINCIPIO DE TIPICIDAD) AND THE ADMINISTRATIVE SANCTIONING REGIME (RÉGIMEN SANCIONATORIO ADMINISTRATIVO). This Constitutional Tribunal has referred to the issue of criminal legal certainty (tipicidad penal) in multiple resolutions, outlining its content:\n\n\"III.— Criminal types must be structured basically as a conditional proposition, consisting of a premise (description of the conduct) and a consequence (penalty); the former must necessarily indicate, at least, who the active subject is, since in specific crimes they meet certain conditions (nationality, public employee status, etc.) and what the action constituting the infraction is (active verb). Without these two basic elements (there are other accessory elements that may or may not be present in the typical description of the act), it can be assured that no criminal type exists.\n\nIV.- From all the above, it can be concluded that there is a legislative obligation, so that legal certainty (tipicidad) constitutes a true citizen guarantee, characteristic of a democratic state under the rule of law, to utilize legislative techniques that allow correctly defining the conducts intended to be repressed as a crime. The absolute effectiveness of the principle of reservation, which as already indicated is established in Article 39 of the Constitution, only occurs in cases where the judge's activity is successfully linked to the law, and it is clear that this, in turn, is entirely related to the greater or lesser degree of concreteness and clarity achieved by the legislator. The necessary use of language and its restrictions means that in some cases the same level of precision cannot be achieved; this does not mean the description can be considered to present constitutional problems regarding legal certainty (tipicidad). Establishing the limit of generalization or concreteness required by the principle of legality (principio de legalidad) must be done in each particular case.\" (Resolution No. 1877-90 of 16:02 hours on December 19, 1990).\n\nRegarding the administrative sanctioning regime (régimen sancionatorio administrativo), constitutional jurisprudence has clarified the legal scope and constitutional limits on the exercise of the state's ius puniendi in the administrative sanctioning field. In judgment 2011-6976 of 13:22 hours on May 27, 2011, the Chamber summarized:\n\n\"V.- Principles governing the administrative sanctioning system. Regarding the principles applicable to the administrative sanctioning regime (régimen sancionatorio administrativo), it has been established that these tend to be assimilated to those governing Criminal Law, since both are manifestations of the punitive power of the State and involve the restriction or deprivation of rights, with the purpose of protecting certain interests. Both administrative sanctioning norms and criminal norms possess a similar structure and functioning: the verification of the provided conduct produces a sanction as a legal consequence. Constitutional Law imposes limits on sanctioning law, which must be observed in both criminal and administrative venues; certainly, in this latter case with certain nuances originating from the diverse nature of both:\n\n\"As this Chamber has repeatedly pointed out, at least at the level of principles, an assimilative tendency of administrative sanctions to criminal ones cannot be denied, as a defense against the tendency to release—in the administrative venue—the punitive power of the State from the guarantees inherent to the criminal system. It being undeniable that administrative sanctions hold a punitive nature, the scheme of procedural and defense guarantees that nourishes the principle of due process (principio del debido proceso) must be mandatorily observed, at least in its fundamental lines, based mainly on Article 39 of the Political Constitution, but which in turn is accompanied by the guarantees offered by Articles 35, 36, 37, 38, 40, and 42, also constitutional.\n\nThus, this Chamber has already indicated that \"all those legal norms, derived from the Political Constitution as an ideological model, pursue nothing more and nothing less than the realization of the fundamental goal of justice, which is the greatest of the principles safeguarded by a State of Law, in which are included rules -general principles- that are fully in force and applicable to the administrative procedures of any organ of the Administration; it is reiterated, then, that the principles extracted from it must be strictly observed by the authorities responsible for carrying out any administrative procedure that has as its object or produces a sanctioning result.\" (resolución N° 1484-96) \"...the procedural differences existing between sanctions applicable to infractions and to crimes cannot lead to ignoring, in the sphere of administrative procedure, the guarantees of citizens; indeed, the guiding principles of the criminal order are applicable, with certain nuances, to administrative sanctioning law, given that both are manifestations of the punitive order of the State.\" (resolución N° 3929-95). Thus, the unequivocal tendency of this Tribunal has been to rule in favor of the application, although certainly with variations, of the guiding principles of the criminal order to administrative sanctioning law, so that the principles of legality, typicality, and culpability inherent to crimes are applicable to administrative infractions mutatis mutandis.\" (Sentencia 2000-08193 of fifteen hours five minutes of the thirteenth of September of two thousand)\n\nV.- Principle of typicality in administrative illicit acts. Specifically in relation to the sphere of administrative sanctioning law, the importance of respecting the principle of typicality has been emphasized, which, although it is true, does not have the rigor demanded in the field of criminal law, constitutes an indispensable guarantee for the administered, who must have certainty regarding which conducts are prohibited and what the consequence of that non-compliance is. It is violative of both the principle of legality and the principle of typicality, the construction of sanctioning types that leave to the sanctioning Authority the capricious determination of the content of the prohibition:\n\n\"VI.- Sanctioning power of the administration and projection of the principle of legality. The principle of legality in criminal matters (article 39 of the Constitution), translates into the absolute reservation of law, so that the predetermination of illicit conducts and applicable sanctions must emanate from norms with the force of law, which must be prior to the commission of the criminal act, fully satisfy the principle of typicality, which excludes the application of analogy unfavorable to the accused, as well as the prohibition of custom as a source of sanctioning law. Furthermore, it entails the guarantee of the principle known as non bis in ídem, enshrined in article 42 of the Constitution. And although the principle of legality in sanctioning matters takes on its greatest significance in the criminal order, it is unquestionable that the constitutional guarantees that accompany it also extend their scope to the field of administrative infractions, which does not mean an automatic transfer under identical conditions, since the specificity of administrative action and the diversity of applicable sanctions mean that the application of this system of guarantees acquires its own nuances.\n\nVII.- The principle of typicality in administrative matters. This Chamber on previous occasions has already taken on the task of delimiting the scope that this principle possesses, mainly in criminal matters, indicating that \"Criminal types must be structured basically as a conditional proposition, consisting of a presupposition (description of the conduct) and a penal consequence; in the first, it must necessarily indicate, at least, who the active subject is, since in specific crimes they meet certain conditions (status as a national, public employee, etc.) and what the action constituting the infraction is (active verb); without these two basic elements (there are other accessory ones that may or may not be present in the typical description of the act) it can be assured that there is no criminal type. From all the foregoing, it can be concluded that there is a legislative obligation, for the purpose that typicality constitutes a true citizen guarantee, proper to a democratic State of law, to use legislative techniques that allow correctly typifying the conducts that it intends to repress as a crime, since the absolute efficacy of the principle of reservation, which as already indicated is established in article 39 of the Constitution, only occurs in cases where it is possible to bind the activity of the judge to the law, and it is clear that this is in turn entirely related to the greater or lesser degree of concreteness and clarity that the legislator achieves\" (resolución N° 1877-90 of 16:02 of December 19, 1990). Thus, this principle, consisting of the concrete and precise normative description of the sanctionable conduct, is also of necessary application to administrative infractions -without prejudice to the development that the regulation may make of the provisions of the law- so that, even when the definition of the type uses concepts whose delimitation allows a certain margin of appreciation, general or indeterminate clauses of infraction that enable the Administration to act with excessive discretion are inadmissible. This requirement of normative predetermination of the conducts and the corresponding sanctions must be projected onto the typification of the conducts as such, and also regarding their grading and scale of sanctions, so that the set of applicable norms allows predicting, with sufficient certainty, the type and degree of sanction susceptible of being imposed on the administered. All of the foregoing is of capital importance for the purposes of this action, for the reason that the exposed considerations oblige the holding as unconstitutional general or indeterminate clauses of infraction. There is no room, then, for the simple legal enabling if it lacks its own material content that delimits the administrative illicit acts and the corresponding sanctioning consequences. With this, norms that attempt to typify as an infraction \"the non-compliance with the present regulation\" or the \"infraction of general duties and obligations\" are discarded as legitimate, since a description with such a level of openness transfers to the sanctioning body the task -which it could exercise at its entire discretion- of determining which actions are susceptible to sanction. In relation to the specific case, from the reading of article 124 that is questioned, it is verified that the norm suffers precisely from the irregularities just pointed out: the intended typification of the reprehensible conduct is reduced to the infraction of the provisions of the law, without indicating which ones, nor under what circumstances. Even more, so serious is the infraction that such a legal formulation entails, that its text openly provides that the Board of Directors of ICAA \"shall be the competent body to determine the non-compliance, the willful or negligent action, and the corresponding sanction\", which may be the suspension or definitive cancellation of the registration in the respective registries. Likewise, the seriousness of the faults is left to the discretionary appreciation of the Administration. In sum, it is transferred to the free appreciation of the administrative authorities the determination of the elements to typify the administrative infraction, that is, precisely what must be stated in the legislation, as a guarantee of the principle of typicality and of the legal certainty to which every citizen has a right in their relations with the Administration. Note that a provision such as the one analyzed, in addition to violating the guarantee of typicality -as the most profound manifestation of the principle of legality in repressive matters- since it is a legal body composed of more than one hundred articles, implies the additional inconvenience that the administrative authority can punish even a merely formal non-compliance, which therefore does not entail injury to a legally protected interest, which further potentiates the violation of constitutional rights in the commented sense. For greater abundance, sentence N° 3004-92 issued by this Chamber at 14:30 on October 9, 1992, can be brought up: on that occasion, subsection c) of article 117 of the Law of Author's Rights, N° 6683, whose text provided: \"Incurs imprisonment of one to three months: a)… b)… c) whoever violates any determination of the present law, when the crime is not specifically punished with another penalty\" was declared unconstitutional because it was considered that \"the necessary elements are not granted so that the interpreter can easily determine what the conduct that constitutes the criminal figure is, since they must consult the articles in their entirety to determine which conducts were specifically assigned a penal sanction, in order to establish from the remaining ones if they are penalized in the rest of the penal legislation and thus, by exclusion, determine which other conducts are also possible to be penalized by the generic figure that is commented on. The formula used grossly contravenes article 39 of the Constitution, since the conduct that is intended to be repressed is not demarcated in a criminal type, its description is ambiguous and generic, thus attacking the commented guarantee function that typicality must fulfill, thereby contravening the principle of prior law contained in the cited article 39 of the Political Constitution.\" Under this order of considerations, it is appreciated that equally when the contested norm alludes to the actions of exporters that \"attempt against or harm the national interests, regarding the foreign trade of coffee\" as a cause for sanction, it equally fails to comply with the principle of typicality, since a formula of such generality is capable of covering any type of action depending on the prevailing circumstances and the criteria of the authorities responsible for appreciating the eventual fault, which places the recipients of the norm in absolute legal uncertainty.\n\nAs this Court has pointed out regarding the act constituting a crime, \"it is not sufficient that it is unlawful—contrary to law—it is necessary that it be classified, that is, that it be fully described in a norm; this is due to irreplaceable demands of legal certainty, since repressive matters are those of greatest intervention in the legal rights of citizens, and in order to guarantee citizens against the State, it is necessary that they can have full knowledge of which actions they must refrain from committing, under penalty of incurring criminal liability; for this, the requirement of a prior law exists, but this requirement is not sufficient without classification, because a law that stated, for example, that any action contrary to good customs would constitute a crime, represents no guarantee for the citizenry, even if it is prior; in this case, it would be the judge's criterion that gives the true contours to the conduct to determine whether or not it constitutes a crime. Conversely, if the criminal act is coined in the definition of the offense (tipo) and this is also closed, the addressee of the norm can easily ascertain its content.\" (Resolution No. 2812-96). Thus, if the classification of an act or conduct as an administrative infraction is not a discretionary power of the Administration, but properly a legal activity of applying norms, which requires, as an objective premise, the framing or submission of the incriminated fault within the legally predetermined definition of the offense, it must necessarily be concluded that the norm in question suffers from serious defects in the typical construction of the sanctionable conduct, and thereby the fundamental principle of Article 39 of the Political Constitution is circumvented.\" (Judgment 2000-08193 of fifteen hours fifteen minutes on September thirteenth, two thousand).\n\nFurthermore, this Chamber has indicated that, to constitutionally validate any type of prohibition and sanction, one must start, in the first instance, from the application of the requirement established by the Inter-American Court of Human Rights (Tristán Donoso Case v. Panama), in the sense that the administrated person must have the possibility of distinguishing the actions and modalities of commission that are contained in the legal precept, from the actions that are not considered illicit or that are sanctioned in a different manner, and that these are not ambiguous, to avoid the scenario where people cannot determine their conduct, due to doubts, regarding which action or modality of commission is subject to a sanction (Resolution No. 2019008678 of 12:15 p.m. on May 15, 2019).\n\nIn this sense, the principle of classification (tipicidad) enables the realization of the principles of legality and legal certainty. Its fulfillment in the administrative sanctioning sphere requires norms with the appropriate degree of clarity and precision, so that the guarantees of due process for administrated persons are met in administrative procedures.\n\nX.- ON THE CONSTITUTIONAL CONSULTATION OF ARTICLE 2 OF THE BILL, WHICH ADDS ARTICLE 67 TO LAW No. 7664. Article 2 of the bill adds a chapter VIII on administrative infractions to the \"Ley de Protección Fitosanitaria No. 7664\".\n\nA. The deputies consult the constitutionality of numeral 67, added to Law No. 7664 by Article 2 of the bill, for the possible infringement of the constitutional principles of classification (tipicidad) and legal certainty, because there is uncertainty as to whether it is an infraction or a contravention, (...) two sanctions for the same conduct would be coexisting in the Ley de Protección Fitosanitaria, and two sanctions cannot coexist at the same time for the same conduct, unless a criminal type had an accessory penalty. In this case, we are not dealing with accessory penalties. They specify that the conflict between contraventions and infractions is raised between: i) Article 75 of the Ley de Protección Fitosanitaria and subparagraph h) of Article 67; ii) Article 76 of the Ley de Protección Fitosanitaria and subparagraph g) of Article 67; and iii) Article 77 of the Ley de Protección Fitosanitaria and subparagraphs e) and g) of Article 67.\n\nThe bill being processed under file No. 20084 adds a new Chapter VIII \"Sanciones Administrativas\" to Law No. 7664, Ley de Protección Fitosanitaria, of April 8, 1997. Currently, Chapter VIII in its Section II establishes Crimes (Articles 68 to 74) and Section III Contraventions (Articles 75, 76, and 77).\n\nThese are reasons of legislative policy that mediate to determine the degree of protection of the legal interest or right protected by a norm, such that its violation qualifies as a crime or, conversely, if the legislator considers that the violation does not disturb the legal order so seriously, the illicit act may have the character of an administrative infraction. In accordance with that legislative determination, the nature of the body that applies the sanctions, the nature of the sanctions themselves, and the procedure through which they are imposed will differ. Therefore, the addition of a chapter on administrative infractions to the Ley de Protección Fitosanitaria by the Legislative Assembly, in the exercise of the power conferred on that body in numeral 121 of the Political Constitution, is a matter of lege ferenda, whose decision corresponds to Congress, since the Legislative Branch can choose both the ends sought with the legislation and the means to achieve them, observing the norms and principles that make up the Law of the Constitution.\n\nWith respect to Article 67, added by Article 2 of the bill, it is also consulted whether it harms the principle of classification (tipicidad) and legal certainty, due to the \"uncertainty as to whether it is an infraction or a contravention, (...) and that two sanctions for the same conduct would be coexisting in the Ley de Protección Fitosanitaria.\" Specifically, the conflict between contraventions and infractions is raised between: i) Article 75 of the Ley de Protección Fitosanitaria and subparagraph h) of Article 67, added by Article 2 of the bill; ii) Article 76 of the Ley de Protección Fitosanitaria and subparagraph g) of Article 67; and iii) Article 77 of the Ley de Protección Fitosanitaria and subparagraphs e) and g) of Article 67. For greater clarity, the provisions are compared in the following table:\n\n| Ley de Protección Fitosanitaria N.7664 | Proyecto de ley “Reforma del inciso j) del artículo 8 y del artículo 18, y adición de un inciso y) al artículo 5, y de un nuevo Capítulo VIII \\\"Sanciones Administrativas\\\" a la Ley nº 7664, Ley de Protección Fitosanitaria, de 8 de abril de 1997\" |\n| --- | --- |\n| ARTICULO 75.- Obstrucción a las autoridades fitosanitarias. Será reprimido con tres a veinte días multa quien, incumpliendo las disposiciones del artículo 16 de esta ley, obstaculice a la autoridad fitosanitaria en el desarrollo de las actividades de investigación, inspección, prevención o combate de las plagas en los vegetales. | ARTÍCULO 67. Infracciones. Se considerarán infracciones administrativas a la presente ley las siguientes: