4.-
Mr. Guillermo Lee Ching, Director General of the Civil Service, also responded to the hearing granted and indicated that there is an error in the claimant's conception regarding the different types of conditions established by both the Statute and the Regulation, in relation to the verification of suitability. He affirms that in the specific case, two very precise tests were applied to the claimants, but to measure suitability (subsection d) of Article 20 of the Statute), and not to prove compliance with subsection a) of Article 20,, which means that the specific needs for the position required the most objective measurement possible of certain psychological qualities and conditions; however, at no time were the two subsections mixed supposedly to include —within the measurement of suitability and as part of the score— the moral, physical, or psychological aptitude of the candidates, as the claimant erroneously asserts. Mr. Lee Ching indicates that the verification of the requirement established in subsection a) of Article 20 of the Statute and Article 9 of the Regulation is usually done by obtaining criminal record certifications and applying the manual for the evaluation of physical aptitude, and that only if there is a special situation is a pre-employment study conducted. Subsequently, and sometimes concomitantly, the respective suitability tests are convened and applied to the candidates. In this case, no problem arose regarding compliance with the requirements of subsection a) of Article 20 of the Statute and Article 9 of the Regulation, so it should be noted that all the claimant's principals surpassed the requirement they dispute, thus they lack standing to proceed through this avenue. On the other hand, what is established in the regulatory norms responds to the development of a reasonable and necessary principle of a specific and distinct constitutional principle applicable to public employment regulations, which is the concept of \"proven suitability (idoneidad comprobada).\" He adds that doctrine has been enriching the concept of \"suitability,\" moving from a purely technical one to a more integrative and broad one, by virtue of the need to better respond to the very idea of efficiency and improvement of the quality of public service. It is noted that suitability is a complex concept, because it is composed of several values which in turn translate into as many requirements, so it is not unconstitutional to develop, through regulatory means, the constitutional concept of suitability in a concrete way so that it responds best to the express intention of the constituent. On the subject of the lack of challenge mechanisms, he notes that the claimant is also mistaken in this aspect because Article 16 of the Regulation precisely regulates a mechanism for candidates to examine the documents related to their exams, clearly within an established period. In development of this norm, the officials in charge have designed a return interview process with the interested parties, in which they are provided with verbal and written information about the evaluated issues. Likewise, in general, there is a general challenge regime for all actions (selection, classification, salaries, etc.), which is regulated through the administrative claim in the terms of Article 88 of the Regulation, which establishes specific procedures to hear and resolve different types of non-conformity. Based on all this, he requests that the action be dismissed.
5.-
The legal requirements have been fulfilled in the proceedings. The oral hearing established in Article 10 of the Law of Constitutional Jurisdiction is dispensed with, in accordance with the provisions of Article 9 of the same body of laws, which allows the Chamber to proceed to hear the merits of the claim presented when sufficient elements of judgment exist to do so.
Drafted by Magistrate Solano Carrera; and,
Considering:
I.- On admissibility.
The standing of the claimants derives from the amparo action (recurso de amparo) number 00-000206-0007-CO, which is being processed before this same Chamber and is pending resolution. In said proceeding, a claim was made against the application to the claimants of subsection a) of Article 20 of the Civil Service Statute, subsection c) of Article 9, and Article 15 of the Regulation to that Statute, as well as for the omission of the Statute to provide a mechanism for challenging qualifications. Such non-conformities are directly related to the subject matter of the amparo action in such a way that the provisions of the first paragraph of Article 75 of the Law of Constitutional Jurisdiction are fulfilled, and it is appropriate to hear this matter on its merits.
II.- Subject matter of the challenge.
The texts of the challenged norms are the following:
Subsection a) of Article 20 of the Civil Service Statute:
\"Article 20.- To enter the Civil Service, the following is required:
a) Possess the moral and physical aptitude proper for the performance of the position, which shall be verified through information on life and customs and certifications issued by the Judicial Registry of Delinquents, the
National Archives, the Investigation Bureau, and the respective Department of the Ministry of Public Health.
b) Sign a sworn declaration of adherence to the democratic regime established by the Constitution of the Republic.
c) Satisfy the minimum special requirements established by the \"Civil Service Descriptive Manual of Jobs\" for the class of position in question.
d) Demonstrate suitability (idoneidad) by submitting to the tests, examinations, or competitive processes (concursos) contemplated by this law and its regulations.
e) Be selected from the list (nómina) sent by the office in charge of selecting personnel.
f) Pass the probationary period; and
g) Fulfill any other requirements established by regulations
and applicable legal provisions.\"
Articles 9 and 15 of the Regulation of the Civil Service Statute:
\"Article 9.- The requirements to enter the Civil Service, apart from those established by Article 20 of the Statute, are the following:
a) ANNULLED by resolution of the Constitutional Chamber No. 5569 of 9:04 a.m. on July 7, 2000.
b) Not to be linked by consanguinity or affinity kinship in direct or collateral line up to the third degree inclusive, with the immediate boss nor with his superiors in the respective Department, Office, or Ministry. However, when greater suitability (idoneidad) for a specific position is proven and the need of the public service so warrants, at the discretion of the Minister or appointing authority, the Tribunal may, exceptionally, exempt the interested party from this requirement;
c) Possess satisfactory physical, psychological, and moral aptitude. For this purpose, the investigations deemed pertinent shall be carried out, for which public institutions and servants shall provide all the information requested. If, as a result of said investigations, it is proven that the candidates do not possess satisfactory aptitude, their offers or eligibility may be temporarily or indefinitely not processed. The officials who, by reason of their positions, become aware of the aforementioned investigations and their results must maintain discretion under penalty of receiving the respective sanctions for divulging confidential information;
d) Not having been dismissed for infraction of the provisions of the Statute, this Regulation, or the respective autonomous regulations in the three years prior to the date of entry, or within a longer period, if at the discretion of the General Directorate, the seriousness of the fault warrants it. A servant who has been dismissed for a second time for grounds of dismissal without employer liability in the Executive Branch or in any of the State institutions shall be considered indefinitely ineligible;
e) Satisfy the requirements established for the class, as well as the requirements indicated in the job profiles and the selection criteria;
f) Possess health compatible with the service, verified by means of a card from the Ministry of Health or any other testing or diagnostic procedures at the discretion of the General Directorate. The requirements set forth in subsections b), c), e), and f), shall also be required for purposes of administrative career.\"
\"Article 15.- Every aspirant to serve a position within the Civil Service Regime must submit to the competitive processes (concursos), investigations, tests, examinations, and other technical-scientific procedures and resources that the General Directorate deems convenient, with the objective of verifying that the person meets the physical, moral, psychological, and other conditions required for the successful performance of the position.
Candidates who achieve a minimum score of 70% will form the registry of eligible candidates, from which the persons offering the best prognosis of success are chosen to form the list (nómina) sent to the institution possessing the vacancy. To determine the list (nómina) with the most suitable candidates, as established by Article 26 of the Civil Service Statute, the General Directorate may convene the eligible candidates for a new evaluation, in order to place the candidates who offer the best prognosis of success, in accordance with the specific requirements demanded by the respective personnel request.
The Minister or authorized Chief must choose the new employee within a maximum period of 10 working days, counted from the date of receipt of the list (nómina). The General Directorate shall maintain the necessary controls, and in case of disagreement, the matter shall be referred to the Civil Service Tribunal for its decision on appeal.
The regulation and control of the registries of eligible candidates is the responsibility of the General Directorate. The duration of each registry of eligible candidates is determined discretionally by the General Directorate, considering for this purpose the needs of the institutions and the convenience and functionality of the service.
Competitive processes (concursos) for positions that by the nature of their functions essentially require manual dexterity, physical strength, or mastery of a mechanical trade, with the proper guidance of the General Directorate, may be processed directly in the ministries and institutions where the vacancy occurs.\"
As indicated, the claim lies, regarding these articles, in the alleged excess in the exercise of regulatory power, first by including, both in subsection c) of Article 9 and in the first paragraph of Article 15, an additional requirement such as psychological aptitude, which has no legal basis, and second by providing for the measurement and assessment of such aptitude through the application of examinations, thereby violating the order established in the Statute, which requires establishing, in general, a moral and physical aptitude, and then, once that stage is passed, suitability (idoneidad) for the position. By mixing both stages, the law is contradicted, and candidates are subjected to requirements that are neither reasonable nor required by law, and —furthermore— no challenge regime is established for such qualifications, leaving the candidate in a state of defenselessness.
On the merits.
It is appropriate to first analyze the claim related to the alleged overreach of the regulatory power of the Executive Branch, by including —as a formal entry requirement and as a component of suitability— in subsection c) of Article 9 and the first paragraph of Article 15, the need to possess a \"psychological aptitude,\" which has no legal basis in the Statute since the latter is limited to indicating \"moral and physical\" aptitudes, excluding all others, according to the claimant's thesis. For this Chamber, the only way the challenged inclusion could be contrary to the constitutional order is if it is proven that it violated some constitutional right of the claimants, and not simply the scope of the law, since, if the latter were the case, the matter becomes one of simple legality, as this Chamber has already had occasion to declare on other previous occasions, such as, for example, in judgment number 11529-2000 of fourteen hours fifty-three minutes on December twenty-first, two thousand. In any case, as the Chamber understands and interprets the articles under discussion, they encompass a particular aspect that is indeed included within the notion of suitability (idoneidad) contained both in Article 192 of the Constitution and by the legislator when enacting the Civil Service Statute.
Precedents of the Constitutional Chamber.-
To reach this conclusion, the doctrine expressed by the Chamber on the different occasions it has had to review matters related to the Civil Service must first be considered. Thus, in judgment number 1696-92 of fifteen hours thirty minutes on August twenty-third, nineteen ninety-two, it is stated:
\"V After the Chapter on Autonomous Institutions was approved, the constituents proceeded to hear the Title and Sole Chapter of the Civil Service, articles that defined the scope of application and its principles. At that time, many public servants were removed from their positions to make way for supporters of the new government, damaging the functioning of the public administration. Precisely to combat this evil, a group of constituents advocated for the creation of this legal instrument to provide the Public Administration with greater administrative and functional efficiency. The first article proposed established that 'A Civil Service Statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the services, which shall be performed with a technical criterion and by the strictly necessary personnel.' Deputy Nombre32336 summarized the purpose of the statute, saying it was to regulate relations between the State and its public servants. This had —as expected— reactions of support and resistance from some deputies, including Representative Nombre35382 who considered its inclusion unnecessary because Article 140, subsections 1) and 2) of the Political Constitution already existed, a numeral that had already been approved by the National Constituent Assembly. Notwithstanding the cited resistance, it is clear that the matter had not been exhausted with the mere approval of those subsections, since the statutory regime was even expanded in its concept. Thus, during the discussion of Article 192, Deputy Nombre32336 highlighted:
'It is essential to state the essence of the Civil Service Law, that is, that no employee may be removed from their position except for grounds for dismissal established by the Labor Code, or in case of forced reduction of services due to absolute lack of funds or to achieve a more effective and economical organization thereof. This guarantees both the employee and the State.',
It was insisted that the mere enunciation of the Civil Service Law in the Political Constitution said nothing, because the fundamental principles of the statute of public function had to be cited, the form of appointment based on proven suitability (idoneidad comprobada),(emphasis not in original) and its removal, through predetermined legislation such as the labor legislation, or for cases of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof…\"
Likewise, in judgment number 0140-93 of sixteen hours five minutes on January twelfth, nineteen ninety-three, the previous concepts were expanded to outline the related constitutional principles collected on the subject:
\"III.- In the institutional development of the Costa Rican State, the Civil Service has marked importance. Proof of this is the Political Constitution itself, which in one of its Titles (the XV), develops the guiding principles of that Regime. There, in a sole chapter, there are two norms that textually state:
\"Article 191.- A Civil Service Statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the administration.\"
\"Article 192.- With the exceptions that this Constitution and the Civil Service Statute determine, public servants shall be appointed based on proven suitability (idoneidad comprobada) and may only be removed for grounds of justified dismissal expressed in the labor legislation, or in the case of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof\"
.
From a historical-legal perspective, the two articles transcribed above are the product of an intense debate within the Constituent Assembly of 1949, which aimed to:
- Eliminate the practice of 'spoils' —as it was called—, alluding to the behavior that politicians had traditionally had, consisting of dismissing public servants with each new Government or Administration to put followers of the winning political party in their place; and,
- Form a Public Administration with human resources of the best quality and condition (morally, technically, and scientifically speaking), in order to make it efficient for the fulfillment of its objectives.- (See on this matter, Acts of the National Constituent Assembly Nos. 167, 177, and 182).
For the case under study, it is necessary to dwell on the second of those objectives and analyze, based on it, the implications of the two precepts just cited.-
The Constitution requires proven suitability (idoneidad comprobada) for entry to the Civil Service and the performance of the public function also requires efficiency. The first of these two principles means that it is a necessary condition for the appointment of public servants, 'with the exceptions that this Constitution or the Civil Service Statute determine,' to have or possess the characteristics and conditions that enable them to perform optimally in the job, position, or public office,(emphasis not in original) that is, to meet the merits that the function demands. The second means not only carrying out public tasks ('effectiveness,' as understood in Administrative Science), but also carrying them out in the best way (good quality and lower or minimum costs, for example). Now, the Constitution limited itself to enunciating those principles and left its development to a law —special by its name and by the subject matter— when it provided that 'a Civil Service Statute shall regulate the relations between the State and public servants.' Consequently, it is the ordinary Legislator who has the constitutional task of drafting the regulation of the public employment relationship. However —and this is vital— this power may only be validly exercised within the insurmountable framework set by the referred constitutional canons; all without prejudice, of course, to the exercise of the regulatory power granted to the Executive Branch, provided for in subsections 3) and 18) of Article 140 of the Political Charter.
V.-(…) In the action, it is maintained that… [it] violates the Magna Carta in its articles 33, 191, and 192, by having ordered the inclusion of that personnel (specifically referring to the school cafeteria workers) in the Regime, as a matter of law and in contravention of the norms of the Civil Service Statute. That is, the questioned norm, according to the action, modifies the system for entering the regime, which requires fulfilling a determined series of requirements, among which are the verification of sufficient merits for the performance of the position or function, and the competitive examination by opposition. Analyzing the situation of the specific case in light of the foregoing, the conclusion is reached that, without a doubt, that legal precept does indeed have the defect attributed to it. The ordinary legislator, within the framework that has been set forth in the preceding Considerations, may regulate the service relationship in the Statute; however, it cannot transgress the principles that the Constitution has imposed as a limit (suitability and efficiency). In this sense, the same Political Charter imprinted on the Civil Service those fundamental precepts, and the only way the Law can affect that Regime is by observing them. Therefore, the Legislative Power —as has already been advanced— is not empowered to arrange, purely and simply, without the requirement of requisites intended to objectively and effectively demonstrate suitability (idoneidad), for individuals to be included in that administrative organization, since such a thing undermines the philosophy, essence, and nature of the Regime, as has been demonstrated. To conclude, it must be said that the opposition raised by the repeatedly cited workers is partially correct when they affirm that our Constitution does not say how suitability (idoneidad) must be proven, nor does it establish the competitive process (concurso) as a modality for selecting public servants(emphasis not in original). However, such circumstances avail them nothing, because the mechanisms that the Statute contemplates in that sense correspond to the valid development, enacted by the Legislator, of the cited constitutional principles. Moreover, the ordinary law could modify them to improve and perfect them, in accordance with reason, science, and technique; but not eliminate them, because if it proceeded in this way, it would be illegitimately ignoring what is mandated by the Fundamental Norm.-\"
Position of the Political Constitution on the matter.-
From what has been transcribed so far, the fundamental difference is clearly marked between the perspective of the claimant and that of this Chamber regarding the scope of the constitutional right to access public positions, since for the claimant it is a right established broadly in the Fundamental Charter, whose primary source of delimitation and regulation is the Statute, while for the Chamber, such right is clearly conditioned already directly and from the constitutional sphere itself. It is to be understood that, according to what the Constituent provided, the condition of \"proven suitability (idoneidad comprobada)\" must be met to access positions protected by the Civil Service regime, to the degree that —as this Chamber affirmed— the legislator cannot depart from that constitutional imposition and render the condition of suitability without effect. This matter is relevant because the case brought by the claimant places us precisely in the subject matter referring to the scope that must be given to said constitutionally established condition, which operates as a limitation —of the highest possible rank— on the claimant's correlative constitutional rights; in this way, the rules that have been established to analyze the interventions of state bodies in the regulation of constitutional rights would not be applicable —in principle—.
\n\nRather, the analysis must focus—as indicated—on determining whether both the Legislature, upon issuing the Statute, and the Executive Branch, upon issuing the regulation, stayed within the framework and limit of the right to access the civil service, constitutionally expressed and demanded by the Constituent, by employing the concept of \"proven suitability\" (idoneidad comprobada).\n\nThe constitutional concept of suitability.\n\nStating the question differently, it is worth asking whether, taking into account what was stated in previous recitals regarding the objective of the constitutional regulation contained in Articles 191 and 192, it would be unacceptable to understand that within the concept of \"suitability\" (idoneidad) used by the Constituent, a necessary \"psychological aptitude\" (aptitud psicológica) for the position is also immersed. A guide in this regard can be extracted from judgment number 02409-98 of nine hours and six minutes, of April third, nineteen ninety-eight. In it, the feasibility of considering psychological tests as part of the verification of suitability in the case of justice administrators was discussed, and although the particular situation is different from the one discussed here, the following ideas are noteworthy:\n\n\"III.- Undoubtedly, the Constitution protects an important number of legal interests that function in a delicate harmony aimed at achieving the healthy coexistence of a given community. This means that it is not enough to view the articles in isolation, but rather in relation as a whole that complements each other. Hence, it is not satisfactory to design a judicial career system that seeks to achieve suitability in the positions, if this is not done with respect for other constitutional rights and principles; among them, equality and reasonableness.\"\n\nVIII.- (…) The right to work contemplated in Article 56 of the Constitution, as well indicated by the Procuraduría General de la República, grants the individual the freedom to choose, from the multitude of lawful occupations, the one that best suits them for the attainment of their well-being and, correlatively, establishes the State's duty not to impose a specific activity on an individual and thus respect their sphere of selection. Undoubtedly, **setting the selection requirements to achieve suitability in the positions does not violate this right, unless they impose specific tasks on individuals that disrespect their choice in the exercise of their freedom, or unless they are unreasonable requirements, or impossible or difficult to fulfill**. (…)\"\n\n\"IX.-(…) For their part, medical and psychological tests have, in the eyes of the law [it refers to the Judicial Career Law], an essentially complementary character and do not integrate the overall qualification of the contestants, and therefore, cannot operate as a condition to exclude participants *a priori*, although they may later be taken into consideration at the time of appointment, a matter on which the Chamber does not make an issue in this action, as it is not a proper subject of the same.- In other words, the medical, psychological, and socio-economic evaluations must be carried out in parallel to the examination of the remaining characteristics of the candidates on the academic and professional level, never beforehand and as a condition for the latter. (...). It should be added, that the aspects to be examined on each of those levels (medical, psychological, and socio-economic) must be, strictly, those that are directly relevant to the position being contested, in accordance with the profiles that –in a technical and objective manner– have been previously defined for the position in question. They could never be used for the detection of highly personal characteristics of the individuals, irrelevant for the purposes of performing the position, which would constitute odious discrimination and an illegitimate invasion of the sphere of privacy that the Political Constitution guarantees to all citizens. It is also clear, that the result of these tests cannot have the effect of separating a candidate from the competition except if the existence of a serious and insurmountable impediment arises from it, which effectively makes it impossible to perform the judicial function, an aspect that must be assessed on a case-by-case basis.(…)\"\n\nAccording to what was set forth in this judgment, the Chamber found no excess or overreach in the fact of including, within the suitability (idoneidad) required for access to the public employment regime (in the cited case, the judicial service), the verification of the necessary psychological aptitude (aptitud psicológica), adapted of course to the specific needs of the position to be served, and provided that the examinations are not used \"(…) for the detection of highly personal characteristics of the individuals, **irrelevant for the purposes of performing the position**\" because if so they would entail \"…odious discrimination and an illegitimate invasion of the sphere of privacy that the Political Constitution guarantees to all citizens.\" Consequently, now that the conditions for access to positions within the civil service are being discussed, it is useful to receive the previously expressed ideas and apply them to the case now under study, in the sense that the inclusion of the verification of the necessary suitability or psychological or psychic aptitude (idoneidad o aptitud psicológica o psíquica) is a perfectly legitimate development of the condition expressed in the constitutional text itself. It effectively makes clear sense to point out that the suitability of public servants must not only be understood in a specific sense, \"academic\" or \"physical\" for example, but must rather be assumed as a conjunction of elements or factors of a diverse nature which, valued as a whole, produce that a person turns out to be the most suitable for the position. Moreover, the Chamber really does not conceive of how the necessary \"psychological aptitude\" could be disregarded, not only in general terms of \"stability\" or \"normality\", but in what refers to the conditions or \"specific aptitudes\" that certain positions necessarily require in order to be exercised efficiently. It is therefore, in the Chamber's judgment, an adequate and proportionate means of achieving the constitutional purpose set forth in Constitutional Articles 191 and 192, insofar as it comes to complement, as explained, the other aspects of suitability; and this same reason is what causes it to maintain a primacy –in this specific case– over the other constitutional rights that the appellant considers involved in this controversy, namely, the right to equal treatment and the right to work, this to the extent that the psychological aptitude must be considered an integral part of the suitability required by the Political Constitution itself, as explained. To conclude on this point, it should be noted that, as the Director General of the Civil Service (Director General del Servicio Civil) indeed points out, the Statute does incorporate within its rules the need for the demonstration –in a broad manner– of suitability for the position and with it the requirement for verification of psychological suitability (idoneidad psicológica). Article 20, subsection d) of the Statute indicates that to enter the Civil Service, one must \"*Demonstrate suitability by submitting to the tests, examinations, or competitions contemplated in this law and its regulations*\", by which the Chamber considers that the comprehensive concept of suitability established by the Constituent has been embraced. Thus, by developing such concept in a specific manner in the regulation –and one which is, furthermore, attached to a constitutional rule– it does not contravene the rules contained in Articles 11, 105, 121, subsection 1) and 140 of the Constitution, and therefore the action must be declared without merit.\n\nRegarding the claim of unconstitutionality of the temporal order imposed in the Regulation on the competition procedures.-\n\nThe claim related to the variation of the iteration established by the law for the examinations must meet the same fate, in the sense that, in the appellant's opinion, the Regulation unconstitutionally varied the order established by the Statute by which **first** the physical, moral, and psychological aptitude is established, to **then** proceed to demonstrate suitability for the specific position. However, the Chamber rather agrees with the reading and interpretation of the norms provided by the Director General of the Civil Service, in the sense that the verification of the conditions required by Article 9, subsection a) of the Regulation is carried out through the collection of reports from the respective institutions, but it is not at this stage that psychological tests are applied; rather, the latter **are carried out as part of the specific tests** of suitability for concrete groups of positions. In this way, there is no infraction by the Regulation because the Law does not establish any specific or stepwise order for demonstrating suitability for a position; rather, it precisely leaves to the regulation the concrete development of the mechanisms and principles established therein. Thus, the action must also be declared without merit on this specific point.\n\nVIII.- Regarding the omission of mechanisms for challenging the results of the tests conducted within the competition procedures.-\n\nThe last point to be reviewed is related to the alleged omission by the Statute of regulating a procedure for challenging the results of the suitability tests –understood in general– thereby violating their right to due process (debido proceso administrativo) and the right of defense specifically. For this Chamber, the claim must be dismissed based on what was set forth by both the Procuraduría General de la República and the Director General of the Civil Service. Indeed, both point out that the existence in Article 16 of the Regulation fully complies with the need for the existence of a mechanism for the examinee to come into contact with the particularities that have influenced their final qualification. That norm prescribes the delivery and explanation of the results that individuals obtain in the tests, which is fulfilled through an interview in which a Civil Service professional delivers the documents and provides the justifications and explanations concerning the results obtained. Apart from that, it is evident, as the advisory body to the Chamber indicates, that although such specific tests do not have their own effects and for that reason are not directly challengeable, as the Chamber has established (see judgment number 02580-98 among others), the truth is that the final result of the qualification, as an administrative act, is governed by the challenge regime for all actions pursuant to Article 88 of the Regulation and 190 of the Statute, both fully applicable for the review of the different aspects that make up the motivation and foundation of such qualification, with, of course, the regulations and limitations arising from the very nature of the tests, this especially in the case of examinations oriented towards determining personality traits that bear inevitable characteristics of more subjective, but not for that reason arbitrary, evaluation by professionals. In this latter sense, it is valid to transcribe judgment 2580-98 cited, in which, although it was issued regarding general personality tests applied for the selection of career judges, it serves as orientation regarding the possibility of challenging and questioning psychological tests and, in general, this kind of evaluation:\n\n\"In this way, the opinions rendered by that Unit have an expert, preparatory character, devoid of their own effects, as the Chamber has held in similar cases (for example, judgment nº 4950-95) and –therefore– unappealable in the sense of lacking recourse.(…)\n\nii -\n\nIt is in that expressed character that the Interdisciplinary Unit can administer medical, psychodiagnostic, and socio-economic tests to the participants in the competition. Once carried out, it must render the corresponding report to the Council of the Judicature, complementing the academic and professional information obtained concomitantly. And –for what concerns us here, and whether the notification is made by the first body or the second (a question which, being of mere legality, is not for this Chamber to elucidate)– it is unquestionable that the interested parties have the right to be informed of the result of their tests, in a manner sufficiently clear and complete so that they may understand –even if they do not share– the reasons for the result obtained, especially if it is negative or detrimental. For this purpose, the Chamber considers that it is unnecessary (and, especially in the case of psychological examinations, it could even be potentially harmful) to grant them full access to the test materials, the examining professional's notes or protocols, etc. In this sense, the concern expressed by the members of the Interdisciplinary Unit on page 79 of the file of the Junta de Relaciones Laborales (brought *ad effectum vivendi*) is shared, when pointing out, regarding psychological examinations:\n\n\"Others wish to be provided with the test; however, its use is restricted and its application and interpretation correspond to a professional in psychology, which is why they do not provide it; furthermore, there are international rules regarding its handling.\"\n\nNotwithstanding which, as indicated, the conclusion communicated to the affected parties must be as clear and complete as to allow them to decide whether to conform to its results or not. (…).\n\niii -\n\nNow then, the Regulation also provides:\n\n\"Article 33.- The result of these tests is unappealable; but the Council of the Judicature may order their repetition in the event of verifying the violation of any of the rights that, in relation to those tests, result for the interested party from the law or this Regulation. The Council may also, in that same eventuality, agree upon the invalidity and the repetition of procedures or examinations carried out in the prior stage.\"\n\nThe Chamber considers that the first phrase of the norm, which provides that \"*The result of these tests is unappealable*\", is technically correct in the sense –already expressed above– that, due to its expert character and not being acts endowed with their own legal effect, it is logical that they are unappealable (that is, susceptible to being contested through the corresponding remedies). But this circumstance should in no way be interpreted as meaning that these tests are definitive and unrepeatable. (…) But, of even greater importance, it is unquestionable –because it is a constitutive element of due process (debido proceso) in its constitutional dimension, as this Chamber has defined it– that the person affected by an adverse test must have the option to contest it, requesting a second expert opinion that could refute the first. (…)\n\niv -\n\nIn the particular case of psychological examinations, it is clear that their simple and immediate repetition does not seem to be the most advisable, to the extent that professionals in that field maintain that the examinee's prior knowledge of its content and methodology can lend itself to distorting the new evaluation. Nonetheless, it is also known –and those sued so reaffirmed to the Chamber during the oral hearing– that psychology has diverse \"tests\" available for the evaluation of personality characteristics, such that an alternative test may be used –by another professional– to confirm or rule out the results of the first, relying in the latter case on the findings of the second, as it constitutes what is most favorable to the interest of the competitor. (…)\"\n\nUnder the protection of what has been set forth, it can be noted that there is no omission causing constitutional harm, regarding the subject of the review and challenge of the different tests that, for the demonstration of suitability, are regulated in the Regulation of the Civil Service Statute (Reglamento del Estatuto del Servicio Civil).\n\nConclusions.\n\nIn summary, the action filed must be declared without merit in all its extremes, since, in the first place, no infraction has been committed with the inclusion, by the Civil Service Regulation, of tests aimed at verifying the \"psychological or psychic aptitude\" as part of the suitability condition established both in the Political Constitution and in the Civil Service Statute. Likewise, the inclusion of this type of tests in the regulation does not infringe upon the order and value of the requirements regulated by the Statute, given that, as indicated, the aforementioned tests are applied not as a prior step but as an integral part of the suitability demonstration process that the Statute precisely requires. Finally, there is no omission whatsoever regarding the possibilities of challenge, given that there is not only a procedure for making the results of the tests known, but also the matter is equally covered by the general challenge regime established by both the Statute and its Regulation.\n\nTherefore:\n\nThe action is declared without merit.\n\nLuis Fernando Solano C.\n\nPresidente\n\nR. E. Piza E. Carlos M. Arguedas R.\n\nAna Virginia Calzada M. Adrián Vargas B.\n\nSusana Castro A. Gilbert Armijo S.\n\nGuillermo Lee Ching, in his capacity as Director General of the Civil Service, and Farid Beirute Brenes, representing the Office of the Attorney General of the Republic, also participated in the proceedings.Findings of Fact:
1.-
By brief received at the Secretariat of the Chamber on April 12, 2000, the petitioner requests that the unconstitutionality of the omission embodied in the Civil Service Statute (hereinafter cited as \"the Statute\") be declared, in relation to the mechanism for challenging the grading of tests administered by the Directorate General of the Civil Service, as well as against Articles 9 and 15 of the Regulations to the Civil Service Statute (hereinafter referred to for clarity as \"the Regulations\"). He alleges that the cited regulatory numerals 9 and 15 infringe Articles 11, 140 subsection 3), and 191 of the Political Constitution, being the product of an excess in the regulatory power. Indeed, it is claimed first that both regulatory provisions include among the requirements for entering the civil service regime the possession of psychiatric fitness (aptitud psíquica), which is not established in the Law of the Civil Service Statute, thereby adding by regulatory means a requirement not contained in the law. Second, the regulatory norms unconstitutionally alter the legally established mechanisms for verifying the cited moral and physical fitness, since instead of developing the means set forth in Article 20, subsection b) of the Statute, that is, certifications from the Criminal Records Registry and the Ministry of Health, etc., they subject the applicants to tests to demonstrate that suitability. Third, it is claimed that the moment established in the Statute for verifying physical and moral fitness (and the psychiatric fitness included by regulation) was altered, since Article 22 of the Statute clearly establishes that this will be done prior to the completion of the suitability tests, whereas the Regulations include such examinations within those of psychiatric fitness, thereby assigning them a score as part of verifying the level of suitability, which is incorrect. Specifically, he claims that the regulations altered the legislator's intent and provisions regarding the manner in which the selection of persons for entry into the Civil Service should operate, since a new element, psychiatric fitness, is added, and, furthermore, the legislator's desire that moral and physical fitness be verified first and suitability determined later is disregarded; with this sequence, the legislator ensured that the subjective criteria prevailing in matters of morality would not influence or determine the selection of a worker, leaving such decision to suitability tests with objective parameters. The second ground for complaint is the infringement of Constitutional Article 192, which requires proven suitability (idoneidad comprobada) as a guide for the appointment of public officials, and which has been violated by Article 15 of the Regulations, insofar as it privileges tests, competitions, investigations, and other mechanisms to demonstrate physical, psychiatric, and moral suitability, where—as the Chamber has already indicated—value judgments prevail over objective criteria—and therefore they stray further from the concept of proven suitability. A third claim is directed against the Statute's omission to establish a procedure for challenging and controlling the results of the suitability tests, thereby violating Articles 39, 41, 56, and 191 of the Political Constitution. It is noted that the legislator is obliged to develop the principles that the Constituent Power imposed for the functioning of the Civil Service, and that such development should have been done with respect for other applicable constitutional principles and rules, specifically those relating to the right of defense and due process. The appellant indicates that the possibility of examining, discussing, and appealing the grades of tests deemed unjustified is an essential pillar of the public employment regime. This becomes even more important insofar as such suitability tests play a preponderant role, and even more so if, as the Civil Service currently does, such examinations include the determination of moral and psychological fitness, in which subjective criteria prevail. However, the Statute and the Regulations completely lack mechanisms for complaint and challenge, and what is done is to communicate a general list of candidates with the final grade.
2.-
By resolution issued at 3:55 p.m. on May 4, 2000, the action was admitted, and a hearing was granted to the Office of the Attorney General of the Republic and the Directorate General of the Civil Service.
3.-
The Office of the Attorney General of the Republic submitted its report, stating that Article 9, subsection c) is not unconstitutional because it constitutes a reasonable development of the legal norm. In its view, adding psychological fitness responds to the activity corresponding to the verification of proven suitability mentioned in the constitutional article. Regarding the challenge to Article 15 of the Regulations, it is argued that it is at least constitutionally questionable, as it apparently introduced a new element, namely subjecting psychological suitability to assessment mechanisms (apart from physical and moral ones); however, specifically, personality analyses are not exclusively carried out but include aspects directly related to what the action calls intellectual suitability, and therefore, from that perspective, such tests are appropriate and reasonable for determining suitability. However, there is an error in Article 15 of the Regulations insofar as it omits to contemplate, as an objective of the measurement mechanisms, the specific verification of the cited intellectual suitability and those related to the specific class of position in question; that is, it omits the establishment of parameters used to verify technical capacity. There is also an omission in that the terms under which the suitability tests referred to in Article 22 of the Statute must be conducted were not developed. In summary, when Articles 9 and 15 regulate the possibility of examining psychological aspects, they left out the criteria for evaluating other elements of transcendental importance in personnel selection matters. Regarding the moment at which the requirements for verifying physical and moral fitness must be applied, the Attorney General's Office expresses that there is no unconstitutionality whatsoever if said elements are measured at the different evaluation stages and through tests. As for the second ground of unconstitutionality, the arguments are reiterated that there is no infringement, since the truth is that the psychological element must form part of the notion of proven suitability. Rather, as indicated, the regulatory text would be deficient in that it failed to take into account other elements different from the moral, physical, and psychological ones, such as so-called cognitive tests. The third aspect refers to the omission of a procedure for challenging the grades, and on it, the advisory body indicates that it is sufficient to note that the Statute itself provides ample means to challenge the decisions of the Directorate of the Civil Service. It is added that Article 16 of the Regulations itself, regarding test results, includes a procedure for applicants to obtain information related to the examinations. Finally, the Attorney General's Office notes that the petitioners are mistaken when they allege they are barred from challenging what are properly the test results, as these do not constitute administrative acts in the strict sense, and, according to what the Chamber has stated, they lack their own effects. At most, it would be possible to guarantee the challenge of the results of certain more technical tests before another body also technically expert in the matter, so that the interested party may obtain a superior opinion or report; however, such a possibility is not being questioned in the action. Therefore, the Attorney General's Office leans towards declaring the action partially with merit, but only regarding the regulatory omission of expressly including an assessment mechanism for so-called \"intellectual suitability\"; however, such infringement would only occur in those cases where this aspect cannot also be evaluated by the psychological tests administered, because it requires the evaluation of other types of knowledge and skills.
4.-
Mr. Guillermo Lee Ching, Director General of the Civil Service, also responded to the granted hearing, and noted that there is an error in the appellant's conception regarding the different types of conditions established by both the Statute and the Regulations, in relation to the verification of suitability. He states that in the specific case, the appellants were administered two very specific tests, but to measure suitability (Article 20, subsection d) of the Statute), and not to prove adherence to numeral 20, subsection a), meaning that the specific needs for the position required the most objective measurement possible of certain psychological qualities and conditions, but at no time were the two subsections mixed to supposedly include—within the measurement of suitability and as part of the grade—the moral, physical, or psychiatric fitness of the applicants, as the appellant erroneously claims. Mr. Lee Ching indicates that the verification of the requirement set forth in Articles 20, subsection a) of the Statute and 9 of the Regulations is usually done by obtaining criminal record certifications and applying the manual for evaluating physical fitness, and only in the event of a special situation is some pre-entry study conducted. After this, and sometimes concomitantly, the respective suitability tests are convened and administered to the applicants. In this case, no problem arose with compliance with the requirements of Articles 20, subsection a) of the Statute and 9 of the Regulations, so it should be noted that all of the appellant's clients met the requirement they are disputing, and therefore they lack standing to proceed in this venue. On the other hand, what is stipulated in the regulatory norms responds to the development of a reasonable and necessary principle, a specific constitutional principle applicable to regulations on public employment, namely the concept of \"proven suitability.\" He adds that legal doctrine has been enriching the concept of \"suitability,\" moving from a purely technical one to a more integrative and broader one, by virtue of the need to better respond to what was intended by the very idea of efficiency and improvement of the quality of public service. It is noted that suitability is a complex concept, as it comprises several values that in turn translate into various requirements, so it is not unconstitutional to develop the constitutional concept of suitability concretely through regulations to best respond to the expressed intention of the constituent power. On the issue of the lack of challenge mechanisms, he indicates that the claimant is also mistaken in this aspect because Article 16 of the Regulations precisely regulates a mechanism for applicants to examine the documents related to their examinations, within an established period, of course. In developing this norm, the officials in charge have designed a feedback interview process with the interested parties, in which they are provided verbal and written information about the matters evaluated. Likewise, in general, there is a general regime of challenge for all actions (selection, classification, salaries, etc.), which is regulated through the administrative complaint procedure under the terms of numeral 88 of the Regulations, which establishes specific procedures for hearing and resolving different types of disagreement. Based on all this, he requests that the action be dismissed.
5.-
The procedures have complied with the prescriptions of law. The oral hearing established in Article 10 of the Law of Constitutional Jurisdiction is dispensed with, in accordance with the provisions of Article 9 of the same body of law, which allows the Chamber to proceed to hear the claim on its merits when sufficient elements of judgment exist for it.
Drafted by Magistrate Solano Carrera; and,
Considering:
I.- On admissibility.
The standing of the petitioners derives from the amparo action number 00-000206-0007-CO being processed before this same Chamber and pending resolution. In that proceeding, a claim was made against the application to the appellants of Articles 20, subsection a) of the Civil Service Statute, and 9, subsection c) and 15 of the Regulations to that Statute, as well as against the Statute's omission to provide a mechanism for challenging the grades. Such objections are directly related to the object of the amparo, such that the requirement established in the first paragraph of Article 75 of the Law of Constitutional Jurisdiction is met, and it is appropriate to hear this matter on its merits.
II.- Object of the challenge.
The texts of the challenged norms are as follows:
Article 20, subsection a) of the Civil Service Statute:
\"Article 20.- To enter the Civil Service, the following is required:
a) Possess the moral and physical fitness appropriate for the performance of the position, which shall be verified through information on life and customs and certifications issued by the Judicial Registry of Offenders, the
National Archives, the Bureau of Investigation, and the respective Department of the Ministry of Public Health.
b) Sign a sworn declaration of adherence to the democratic regime established by the Constitution of the Republic.
c) Satisfy the special minimum requirements established by the 'Civil Service Descriptive Manual of Jobs' for the class of position in question.
d) Demonstrate suitability by undergoing the tests, examinations, or competitions contemplated by this law and its regulations.
e) Be chosen from the list sent by the office in charge of selecting personnel.
f) Pass the probationary period; and
g) Meet any other requirements established by the regulations
and applicable legal provisions.\"
Articles 9 and 15 of the Regulations to the Civil Service Statute:
\"Article 9.- The requirements to enter the Civil Service, apart from those established by Article 20 of the Statute, are the following:
a) ANNULLED by resolution of the Constitutional Chamber No. 5569 at 9:04 a.m. on July 7, 2000.
b) Not be related by consanguinity or affinity in a direct or collateral line up to the third degree inclusive, to the immediate superior or to their superiors in the respective Department, Office, or Ministry. However, when greater suitability for a specific position is demonstrated and the need of the public service so warrants, in the judgment of the Minister or appointing hierarch, the Tribunal may, exceptionally, dispense the interested party from this requirement;
c) Possess satisfactory physical, psychiatric, and moral fitness. For this purpose, the investigations deemed pertinent shall be carried out, for which public institutions and servants shall provide all information requested. If as a result of said investigations it is verified that the candidates do not possess satisfactory fitness, the processing of the applications or the eligibility of the candidate may be temporarily or indefinitely suspended. Officials who, by reason of their positions, have knowledge of the aforementioned investigations and their results must maintain discretion, under penalty of incurring the respective sanctions for disclosing confidential information;
d) Not have been dismissed for violating the provisions of the Statute, these Regulations, or the respective autonomous regulations within the three years prior to the entry date, or within a longer period if, in the judgment of the Directorate General, the gravity of the fault so warrants. A servant who has been dismissed for the second time on grounds of dismissal without employer liability in the Executive Branch or in any of the State institutions shall be considered indefinitely ineligible;
e) Satisfy the requirements established for the class, as well as the requirements indicated in the job profiles and the selection criteria;
f) Possess health compatible with the service, verified through a Ministry of Health card or any other testing or diagnostic procedures, in the judgment of the Directorate General. The requirements set forth in subsections b), c), e), and f) shall also be required for administrative career purposes.\"
\"Article 15.- Every applicant to serve a position within the Civil Service Regime must submit to the competitions, investigations, tests, examinations, and other technical-scientific procedures and resources that the Directorate General deems convenient, with the objective of verifying that the person meets the physical, moral, and psychological conditions and others required for the successful performance of the position.
Candidates who achieve a minimum grade of 70% will form the registry of eligible candidates, from which the persons offering a better prognosis of success are chosen, to form the list sent to the institution holding the vacancy. To determine the list with the most suitable candidates, as established by Article 26 of the Civil Service Statute, the Directorate General may convene the eligible candidates for a new evaluation, in order to place the candidates offering the best prognosis of success, in accordance with the specific requirements demanded by the respective personnel request.
The Minister or authorized Head must choose the new employee within a maximum period of 10 business days, counted from the date of receipt of the list. The Directorate General shall maintain the necessary controls, and in case of disagreement, the matter shall be referred to the Civil Service Tribunal for a decision on appeal.
The regulation and control of the eligible candidate registries is the responsibility of the Directorate General. The validity of each eligible registry is discretionally determined by the Directorate General, considering for this purpose the needs of the institutions and the convenience and functionality of the service.
Competitions for positions that, by the nature of their functions, essentially require manual dexterity, physical strength, or mastery of a mechanical trade, with the proper guidance of the Directorate General, may be processed directly in the ministries and institutions where the vacancy arises.\"
As indicated, the claim lies, regarding these articles, in the alleged excess in the exercise of regulatory power, first by including, both in subsection c) of Article 9 and in the first paragraph of Article 15, an additional requirement, namely psychological fitness, which has no legal basis, and second by providing for the measurement and assessment of such fitness through the administration of examinations, thereby infringing the order established in the Statute, which requires, in general, establishing moral and physical fitness and then, after that stage is passed, suitability for the position. By mixing both stages, the law is contradicted, and the candidates are subjected to requirements that are neither reasonable nor required by law, and—furthermore—no challenge regime is established for such grades, leaving the candidate in a state of defenselessness.
On the merits.
It is appropriate to first analyze the claim related to the alleged overreach of the regulatory power of the Executive Branch, by including—as a formal entry requirement and as a component of suitability—in Articles 9, subsection c) and 15, first paragraph, the need to possess \"psychiatric fitness (aptitud psíquica),\" which has no legal basis in the Statute, since the latter merely indicates \"moral and physical\" fitness, excluding all others, according to the appellant's thesis. For this Chamber, the only way the challenged inclusion could be contrary to the constitutional order is if it is proven that it violated some constitutional right of the appellants, and not simply the scope of the law, since, if the latter were the case, the issue becomes one of mere legality, as this Chamber has already had occasion to declare on other previous occasions, as, for example, in judgment number 11529-2000 issued at 2:53 p.m. on December 21, 2000. In any case, as the Chamber understands and interprets the articles under discussion, they embrace a particular aspect that is indeed included within the notion of suitability contained both in Constitutional Article 192 and by the legislator when enacting the Civil Service Statute.
Precedents of the Constitutional Chamber.-
To reach such a conclusion, the doctrine expressed by the Chamber on the different occasions it has had to review issues related to the Civil Service must be considered first. Thus, in judgment number 1696-92 issued at 3:30 p.m. on August 23, 1992, it is stated:
\"V After approving the Chapter on Autonomous Institutions, the constituents proceeded to hear the Single Title and Chapter on the Civil Service, articles that defined the scope of application and its principles. At that time, many public servants were removed from their positions to make way for supporters of the new government, damaging the functioning of the public administration. Precisely to attack this evil, a group of constituents advocated for the creation of this legal instrument in order to endow the Public Administration with greater administrative and functional efficiency. The first proposed article established that 'A Civil Service Statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the services, which shall be performed with a technical criterion and by strictly necessary personnel.' Deputy Nombre32336 summarized the purpose of the statute, saying it was to regulate the relations between the State and its public servants. This had—as to be expected—reactions of support and resistance from some deputies, including Representative Nombre35382, who considered its inclusion unnecessary given the existence of Article 140, subsections 1) and 2) of the Political Constitution, a numeral that had already been approved by the National Constituent Assembly. Notwithstanding the cited resistance, it is clear that the matter had not been exhausted with the mere approval of those subsections, since the statutory regime was even expanded in its concept. Thus, during the discussion of Article 192, Deputy Nombre32336 highlighted:
'It is essential to state the essential aspects of the Civil Service Law, that is, that no employee may be removed from their position, except for grounds for dismissal established by the Labor Code, or in cases of forced reduction of services due to an absolute lack of funds or to achieve a more effective and economical organization thereof. They guarantee the employee and the State...,'
It was insisted that the mere enunciation of the Civil Service Law in the Political Constitution said nothing, since the fundamental principles of the public function statute, the form of appointment based on proven suitability (idoneidad comprobada),(emphasis not in the original) and their removal, through predetermined legislation such as labor legislation, or for cases of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof, had to be cited…\"
Similarly, in judgment number 0140-93 issued at 4:05 p.m. on January 12, 1993, the previous concepts were expanded upon to outline the related constitutional principles gathered on the subject:
\"III.- In the institutional development of the Costa Rican State, the Civil Service has marked importance. Proof of this is the Political Constitution itself, which in one of its Titles (XV), develops the guiding principles of that Regime.\n\nThere, in a single chapter, are two provisions that textually state:\n\n\"Article 191.- A Civil Service Statute (Estatuto de Servicio Civil) shall regulate relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration.\"\n\n\"Article 192.- With the exceptions that this Constitution and the Civil Service Statute determine, public servants shall be appointed on the basis of proven suitability (idoneidad comprobada) and may only be removed for the causes of justified dismissal expressed by labor legislation, or in the case of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof.\"\n\nFrom a historical-legal perspective, the two articles transcribed above are the product of an intense debate within the Constituent Assembly of 1949, which had the following objectives:\n\n- Eliminate the practice of the \"spoils\" (botín) – as it was called – alluding to the behavior that politicians had traditionally engaged in, consisting of the fact that with each new Government or Administration, public servants were dismissed to make way for the followers of the winning political party; and,\n\n- Form a Public Administration with human resources of the highest quality and condition (morally, technically, and scientifically speaking), in order to make it efficient in fulfilling its objectives. – (See in this regard, Minutes of the National Constituent Assembly Nos. 167, 177, and 182).\n\nFor the case under study, it is necessary to dwell on the second of those objectives and, based on it, analyze the implications of the two precepts just cited. –\n\nThe Constitution requires proven suitability for entry into the Civil Service, and the performance of the public function further requires efficiency. The first of these two principles means that a necessary condition for the appointment of public servants, \"with the exceptions that this Constitution or the Civil Service Statute determine,\" is to have or meet the characteristics and conditions that enable them to perform optimally in the job, post, or public office (the emphasis is not from the original); that is, to possess the merits that the function demands. The second means not only carrying out public tasks (\"effectiveness\" or eficacia, as understood in Administrative Science), but also carrying them out in the best manner (good quality and lower or minimal costs, for example). Now, the Constitution limited itself to enunciating those principles and left their development to a law – special by its designation and by the subject matter – when it ordered that \"a Civil Service Statute shall regulate relations between the State and public servants.\" Consequently, it is the ordinary Legislator who has the constitutional duty to elaborate the regulation of the public employment relationship. However – and this is vital – that power may only be validly exercised within the insurmountable framework established by the aforementioned constitutional canons; all of this without prejudice, of course, to the exercise of the regulatory power (potestad reglamentaria) conferred upon the Executive Branch, provided for in subsections 3) and 18) of Article 140 of the Political Constitution.\n\nV.-(…) In the action, it is argued that… [it] violates the Magna Carta in its Articles 33, 191, and 192, by having ordered the inclusion of that personnel (specifically referring to school cafeteria workers) into the Regime, by operation of law and in contravention of the norms of the Civil Service Statute. That is, the norm questioned according to the action modifies the system for entering the regime, which requires fulfilling a specific series of requirements, among which are the verification of sufficient merits for the performance of the post or function, and the competitive examination (concurso por oposición). Analyzing the situation of the specific case in light of the foregoing, the conclusion is reached that, without a doubt, that legal precept does bear the defect attributed to it. The ordinary legislator, within the framework that has been set forth in the preceding Considering clauses, may regulate the service relationship in the Statute; however, it cannot transgress the principles that the Constitution has imposed as a limit (suitability and efficiency). In this sense, the Political Constitution itself impressed upon the Civil Service those fundamental precepts, and the only way in which the Law can affect that Regime is by observing them. Therefore, the Legislative Branch – as has already been advanced – is not empowered to order, purely and simply, without the requirement of requirements designed to objectively and effectively demonstrate suitability, that persons be included in that administrative organization, because such a thing undermines the philosophy, essence, and nature of the Regime, as has been demonstrated. To conclude, it must be said that the opposition formulated by the repeatedly cited female workers is partially correct when they affirm that our Constitution does not say how suitability must be proven, nor does it establish the competitive examination as a modality for selecting the public servant (the emphasis is not in the original). However, such circumstances are of no benefit to them, because the mechanisms that the Statute contemplates in that sense correspond to the valid development, enacted by the Legislator, of the cited constitutional principles. Furthermore, ordinary law could modify them to improve and perfect them, in accordance with reason, science, and technique; but it could not eliminate them, because if it proceeded in this way, it would be illegitimately disregarding the provisions of the Fundamental Norm.\"-\n\nPosition of the Political Constitution on the matter.-\n\nFrom what has been transcribed up to here, the fundamental difference is clearly marked between the perspective of the claimant and that of this Chamber, regarding the scope of the constitutional right to access public posts, since for the appellant it is a right established broadly in the Fundamental Charter whose primary source of delimitation and regulation is the Statute, while for the Chamber, such right is clearly conditioned directly from and starting at the constitutional sphere itself. It should be understood that, as ordered by the Constituent, the condition of \"proven suitability\" must be met to access the posts protected by the Civil Service regime, to the degree that – as this Chamber affirmed – the legislator cannot depart from that constitutional imposition and render the condition of suitability ineffective. This question is relevant because the case raised by the appellant places us precisely within the theme referring to the scope that should be given to said constitutionally established condition, which operates as a limitation – of the highest possible rank – on the appellant's correlative constitutional rights; as such, the rules that have been established for analyzing interventions by state bodies in the regulation of constitutional rights would not be applicable – in principle. Rather, the analysis must focus – as was indicated – on determining whether both the Legislator, upon issuing the Statute, and the Executive Branch, upon issuing the regulation (reglamento), remained within the framework of and the limit on the right of access to civil service, constitutionally expressed and demanded by the Constituent, by employing the concept of \"proven suitability.\"\n\nThe constitutional concept of suitability.\n\nFraming the question another way, it is worth asking whether, taking into account what was set forth in prior considering clauses regarding the objective of the constitutional regulation contained in Articles 191 and 192, it would be unacceptable to understand that within the concept of \"suitability\" used by the Constituent is also embedded a necessary \"psychological aptitude\" for the post. A guide in this sense can be extracted from judgment number 02409-98 of nine hours six minutes, on the third of April of nineteen ninety-eight. In it, the viability of taking into account psychological tests as part of the verification of suitability in the case of administrators of justice was discussed, and even though the particular situation is different from the one discussed here, the following ideas are salvageable:\n\n\"III.- Undoubtedly, the Constitution protects an important quantity of legal interests (bienes jurídicos) that function in a delicate harmony aimed at achieving the healthy coexistence of a determined community. This means it is not sufficient to view the articles in an isolated manner, but rather in relation as a whole that complements each other. Hence, it is not satisfactory to design a judicial career system that seeks to achieve suitability in the posts, if this is not done with respect for the other constitutional rights and principles; among them, equality and reasonableness.\"\n\n\"VIII.- (…) The right to work contemplated in Article 56 of the Constitution, as the Attorney General's Office (Procuraduría General de la República) correctly points out, grants the individual the freedom to choose, from among the multitude of lawful occupations, the one that best suits them for the attainment of their well-being, and correlatively establishes the State's duty not to impose a specific activity on an individual and thus to respect their sphere of selection. Undoubtedly, establishing the selection requirements to achieve suitability in the posts does not violate this right, unless they impose specific tasks on persons that disrespect their selection made in the exercise of their freedom, or unless they involve unreasonable requirements, or requirements that are impossible or difficult to fulfill. (…)\"\n\n\"IX.-(…) For their part, medical and psychological tests have, in the eyes of the law [referring to the Judicial Career Law (Ley de Carrera Judicial)], an essentially complementary nature and do not form part of the overall scoring of the contestants, and therefore, cannot operate as a condition to exclude participants a priori, although they may later be taken into consideration at the moment of appointment, a question on which the Chamber does not take issue in this action, as it does not prove to be a matter proper to it. – In other words, the medical, psychological, and socio-economic evaluations must be carried out in parallel with the examination of the remaining characteristics of the candidates in the academic and professional spheres, never beforehand and as a conditioning factor for the latter. (...). It should be added that the aspects that are the subject of examination in each of those spheres (medical, psychological, and socio-economic) must be, strictly, those that prove directly relevant to the post being contested, in accordance with the profiles that – in a technical and objective manner – have been previously defined for the post in question. They could never be used to detect highly personal characteristics of the individuals, irrelevant for the purposes of performing the post, which would constitute odious discrimination and an illegitimate invasion of the sphere of privacy that the Political Constitution guarantees to all citizens. It is also clear that the result of those tests cannot have the effect of separating a candidate from the competition except if it reveals the existence of a serious and irremediable impediment that effectively makes the performance of the judicial function impossible, an aspect that must be evaluated on a case-by-case basis. (…)\"\n\nAccording to what was set forth in this judgment, the Chamber found no excess or overreach in the fact of including, within the suitability required for access to the public employment regime (in the cited case, the judicial service), the verification of the necessary psychological aptitude, adapted of course to the specific needs of the post to be served, and provided that the examinations are not used \"(…) to detect highly personal characteristics of the individuals, irrelevant for the purposes of performing the post,\" because if that were the case, it would imply \"…odious discrimination and an illegitimate invasion of the sphere of privacy that the Political Constitution guarantees to all citizens.\" Consequently, now that the conditions for access to posts within the civil service are being discussed, it is useful to receive the ideas expressed above and apply them to the case now under study, in the sense that the inclusion of the verification of the necessary suitability or psychological or psychic aptitude is a perfectly legitimate development of the condition expressed in the constitutional text itself. It effectively has a clear meaning to point out that the suitability of public servants should not only be understood in a specific sense, \"academic\" or \"physical\" for example, but rather should be assumed as a conjunction of elements or factors of a diverse nature that, evaluated as a whole, result in a person proving to be the most suitable for the post. Furthermore, the Chamber truly cannot conceive of a way in which the necessary \"psychological aptitude\" could be disregarded, not only in general terms of \"stability\" or \"normality,\" but in what refers to the conditions or \"specific aptitudes\" that certain posts require as a necessary condition to be exercised with efficiency. Therefore, in the judgment of the Chamber, it involves an adequate and proportional means of achieving the constitutional purpose established in Articles 191 and 192 of the Constitution, insofar as it complements, as explained, the other aspects of suitability; and it is this very reason that causes it to maintain primacy – in this specific case – over the other constitutional rights that the appellant considers involved in this controversy, namely, the right to equality of treatment and the right to work, to the extent that psychological aptitude must be considered an integral part of the suitability demanded by the Political Constitution itself, as was explained. To conclude on this point, it should be noted that, as the Director General of the Civil Service indeed points out, the Statute does incorporate within its rules the necessity of demonstrating – in a broad manner – suitability for the post and, with it, the requirement of verifying psychological suitability. Article 20 subsection d) of the Statute states that to enter the Civil Service, one must \"Demonstrate suitability by submitting to the tests, examinations, or competitive examinations (concursos) contemplated by this law and its regulations,\" with which the Chamber considers that the comprehensive concept of suitability established by the Constituent has been embraced. Thus, when the regulation develops that concept in a specific form – and one that also adheres to the constitutional rule – it does not contravene the rules contained in Articles 11, 105, 121 subsection 1), and 140 of the Constitution, and therefore the action must be declared without merit.\n\nRegarding the allegation of unconstitutionality of the temporal order imposed in the Regulation on the competitive examination procedures.-\n\nThe claim relating to the variation of the iteration established by law for the competitive examinations must meet the same fate, in the sense that, in the appellant's view, the Regulation unconstitutionally varied the order established by the Statute through which first physical, moral, and psychological aptitude is determined, and then one proceeds to demonstrate suitability for the specific post. However, the Chamber agrees rather with the reading and interpretation of the norms given by the Director General of the Civil Service, in the sense that the verification of the conditions required by Article 9 subsection a) of the Regulation is carried out by collecting reports from the respective institutions, but it is not at this stage that psychological examinations are applied; rather, these latter are conducted as part of the specific tests of suitability for groups of specific posts. In this way, there is no infringement by the Regulation because the Law does not establish any specific or stepped order for demonstrating suitability for a post; rather, it precisely leaves to the regulation the concrete development of the mechanisms and the principles instituted therein. Thus, the action must also be declared without merit on this specific point.\n\nVIII.- On the omission of mechanisms for challenging the results of the tests conducted within the competitive examination procedures.-\n\nThe last point to be reviewed is related to the alleged omission by the Statute to regulate a procedure for challenging the results of the suitability tests – understood in general – thereby violating the right to administrative due process (debido proceso administrativo) and the right to a defense (derecho de defensa) specifically. For this Chamber, the claim must be dismissed based on what was set forth by both the Attorney General's Office and the Director General of the Civil Service. Indeed, both indicate that the existence of Article 16 of the Regulation fully satisfies the need for a mechanism through which the examinee comes into contact with the particularities that have affected their final score. That norm prescribes the delivery and explanation of the results that individuals obtain on the tests, which is accomplished through an interview in which a Civil Service professional delivers the documents and provides the justifications and explanations concerning the results obtained. Apart from this, it is evident, as the advisory Body to the Chamber points out, that although such specific tests do not have their own effects and for that reason are not directly challengeable, as the Chamber has established (see judgment number 02580-98 among others), the truth is that the final result of the scoring, as an administrative act (acto administrativo), is governed by the challenge regime for all actions pursuant to Article 88 of the Regulation and Article 190 of the Statute, both fully applicable for the review of the different aspects that make up the motivation and basis of such scoring, albeit with the regulations and limitations that arise from the very nature of the tests, especially in the case of examinations oriented toward determining personality traits, which bear unavoidable characteristics of more subjective, but not for that reason arbitrary, evaluation by professionals. In this latter sense, it is valid to transcribe the cited judgment 2580-98, in which, even though it was issued regarding general personality tests applied for the selection of career judges, it serves as a guide regarding the possibility of challenging and questioning psychological tests and, in general, this type of evaluation:\n\n\"In this manner, the opinions rendered by that Unit have an expert, preparatory nature, devoid of their own effects, as the Chamber has held in similar cases (for example, judgment No. 4950-95) and – therefore – unappealable in the sense of lacking recourse. (…)\n\nii -\n\nIt is in the aforementioned nature that the Interdisciplinary Unit (Unidad Interdisciplinaria) may administer the medical, psychodiagnostic, and socio-economic tests to the participants in the competitive examination. Once carried out, it must render the corresponding report to the Judicial Council (Consejo de la Judicatura), complementing the academic and professional information obtained concomitantly. And – for what concerns us here, and whether the notification is carried out by the first body or the second (a question which, being one of mere legality, it is not for this Chamber to elucidate) – it is unquestionable that interested parties have the right to be notified of the results of their tests, in a manner as clear and sufficient as to allow them to understand – even if not share – the reasons for the result obtained, especially if it is negative or harmful. For this purpose, the Chamber considers that it is unnecessary (and, above all in the case of psychological examinations, could even prove potentially harmful) to grant them full access to the test materials, the notes or protocols of the examining professional, etc. In this sense, the concern expressed by the members of the Interdisciplinary Unit on folio 79 of the file of the Labor Relations Board (Junta de Relaciones Laborales) (brought ad effectum vivendi) is shared, when pointing out, regarding psychological examinations:\n\n'Others wish to be given the test, however its use is restricted and its application and interpretation corresponds to a psychology professional, for that reason they do not provide it; besides, there are international rules on its handling.'\n\nNotwithstanding which, as indicated, the conclusion communicated to the affected parties must be as clear and complete as to allow them to decide whether they agree with its results or not. (…).\n\niii -\n\nNow then, the Regulation also provides:\n\n'Article 33.- The result of those tests is unappealable; but the Judicial Council may order their repetition in the event that the violation of any of the rights that, in relation to those tests, accrue to the interested party from the law or from this Regulation is verified. The Council may also, in that same eventuality, agree to the invalidation and repetition of procedures or examinations carried out in the prior stage.'\n\nThe Chamber considers that the first phrase of the norm, which states that 'The result of those tests is unappealable,' is technically correct in the sense – already expressed above – that, due to their expert nature and not being acts endowed with their own legal effect, it is logical that they are unappealable (that is, not susceptible to being challenged through the corresponding remedies). But that circumstance should in no way be interpreted to mean that those tests are definitive and unrepeatable. (…) But, of even greater importance, it is unquestionable – since it involves a constitutive element of due process in its constitutional dimension, as this Chamber has defined it – that the person affected by an adverse test must have the option to challenge it, requesting a second expert opinion that could contradict the first. (…)\n\niv -\n\nIn the particular case of psychological examinations, it is clear that their simple and immediate repetition does not seem to be the most advisable, to the extent that professionals in that field maintain that the examinee's prior knowledge of their content and methodology can lend itself to distorting the new evaluation. However, it is also well known – and the respondents reaffirmed this to the Chamber during the oral hearing – that psychology has various 'tests' available for evaluating personality characteristics, so that one may resort to an alternate test – under another professional's charge – to confirm or discard the results of the first, standing, in the latter case, by the findings of the second, as they constitute what is most favorable to the contestant's interest. (…)\"\n\nUnder the protection of the foregoing, it can be indicated that there is no omission causing constitutional injury in the matter of the review and challenge of the different tests that, for demonstrating suitability, are regulated in the Regulation of the Civil Service Statute.\n\nConclusions.\n\nIn summary, the action filed must be declared without merit in all its aspects, since, in the first place, no infringement has been committed by the inclusion, on the part of the Civil Service Regulation, of tests designed to verify \"psychological or psychic aptitude\" as part of the condition of suitability established both in the Political Constitution and in the Civil Service Statute. Similarly, the inclusion of this type of test in the regulation does not infringe the order and value of the requirements regulated by the Statute, given that, as indicated, the indicated tests are applied not as a preliminary step but as an integral part of the process of demonstrating suitability that the Statute precisely demands. Finally, there is no omission whatsoever regarding the possibilities for challenge, given that there exists not only a procedure for the notification of the test results, but the matter is equally covered by the general regime of challenge established by both the Statute and its Regulation.\n\nTherefore:\n\nThe action is declared without merit.\n\nLuis Fernando Solano C.\nPresident\n\nR. E. Piza E. Carlos M. Arguedas R.\n\nAna Virginia Calzada M. Adrián Vargas B.\n\nSusana Castro A. Gilbert Armijo S." }