\\r\\n\\r\\n
\\r\\n 1.- Por escrito recibido en la Secretaría de la Sala a las catorce horas con\\r\\ncincuenta y tres minutos del veintiuno de mayo de dos mil nueve, el accionante\\r\\nsolicita que se declare la inconstitucionalidad de los artículos 3, 4, 5, 6, 7\\r\\ny 15 del Reglamento a la Ley Indígena y el Decreto Ejecutivo número 13568-C-G,\\r\\nsobre Representación Legal de las Comunidades Indígenas por las Asociaciones de\\r\\nDesarrollo y como Gobierno Local. Manifiesta que según el artículo 2 de la Ley\\r\\nNo. 5251, la Comisión Nacional de Asuntos Indígenas (CONAI) estará conformada\\r\\npor un delegado de cada asociación de desarrollo que exista en las comunidades\\r\\nindígenas. Agrega que el artículo 4 de la Ley Indígena (Ley No. 6172) dispone\\r\\nque “La población de cada una de las reservas constituye una sola comunidad, administrado\\r\\npor un consejo directivo representante de toda la población”. Señala que el\\r\\nReglamento a la Ley Indígena (Decreto Ejecutivo No. 8447) establece las\\r\\nasociaciones de desarrollo como gobiernos locales, de manera que los no\\r\\nafiliados a las asociaciones, que son mayoría en las reservas, no pueden\\r\\nparticipar en la elección de la junta directiva, ni en la elección del delegado\\r\\na la CONAI. Agrega que a los indígenas nunca se les dio oportunidad de elegir\\r\\nla figura jurídica que querían en sus comunidades, como lo establece el\\r\\nConvenio 169 de la Organización Internacional del Trabajo (OIT) y la\\r\\nDeclaración de las Naciones Unidas sobre los Derechos de los Pueblos Indígenas,\\r\\nsino que se les impuso una figura jurídica, violando así la Constitución\\r\\nPolítica en su artículo 25 y el artículo 16 de la Convención Americana Sobre\\r\\nDerechos Humanos, el artículo 3 de la Declaración de Naciones Unidas sobre los\\r\\nDerechos de los Pueblos Indígenas y el articulo 6 del Convenio número 169 de la\\r\\nOIT. Considera que al establecer que las asociaciones de desarrollo sean las\\r\\nque representan judicial y extrajudicialmente a las comunidades indígenas, se\\r\\nles impuso un sistema no tradicional, que obliga a los indígenas a asociarse\\r\\npara gozar de ciertos derechos que el resto de la población costarricense goza\\r\\nsin necesidad de hacerlo, lo que produce una desigualdad ante la ley en las\\r\\nreservas. Así, a quienes deseen formar parte de la CONAI, se les exige estar\\r\\nafiliados a una asociación de desarrollo integral, que no es democrática, pues\\r\\nno se le permite, por derecho natural a todos los indígenas participar en esa\\r\\nelección.\n\nAlthough the law governing associations – Law No. 3859 – in its Article 24 provides that no one can be forced to join an association, in reality indigenous people who wish to fully enjoy their rights in a reserve must become members. It points out that Executive Decree 13568-C-G, in its Article 1, provides that the development associations hold the legal representation of indigenous communities and act as local governments. It considers that these provisions violate Article 33 of the Political Constitution, and Article 24 of the American Convention on Human Rights, which establish the principle of equality, because in indigenous reserves there is inequality before the law between members and non-members of the indigenous development associations. The inequality consists in that the former have the right to housing vouchers, to be granted land, to elect and be elected, and to stand for delegate to the CONAI, while non-member indigenous people do not. It adds that, together with a group of indigenous people, he requested membership in the Integrated Development Association of the Térraba Reserve (Asociación de Desarrollo Integral de la Reserva de Térraba), which was denied by its Board of Directors under the pretext of having obstructed its functioning and having affected the good name and development of the community. He requests: a) that Articles 3, 4, 5, 6, 7, and 15 of the Regulation to the Indigenous Law number 8487-G of May 10, 1978, and Executive Decree number 13568-C-G of April 30, 1982, Legal Representation of Indigenous Communities by the Development Associations and as Local Government, be declared unconstitutional for being contrary to Articles 25 and 33 of the Political Constitution; Article 4 of the Indigenous Law; Articles 16 and 23 of the American Convention on Human Rights; Article 6 of the ILO Convention, and the United Nations Declaration on the Rights of Indigenous Peoples, and b) that indigenous communities be allowed to freely and democratically elect the organizational structure that represents them, in which the entire indigenous population can participate, through a free election conducted by the Supreme Electoral Tribunal or supervised by the Ombudsman's Office (Defensoría de los Habitantes).\n\n**2.-** By resolution at fifteen forty-five hours on July nine, two thousand nine (folio 37), the claimant was warned that, within three days: a) authenticate his signature on the initial brief and attach the stamp of the Bar Association (Colegio de Abogados); b) specify the prior pending matter to be resolved on which he bases the action, providing a certified copy of the brief in which he invoked the unconstitutionality of the questioned regulations in that underlying proceeding, or indicate which reasons confer standing upon him to bring the action directly, and c) submit seven sets of copies of all documentation for the Magistrates of the Chamber, one for the Office of the Attorney General (Procuraduría General de la República), as well as an additional set of copies for each counterparty that has appeared in the underlying matter, if any.\n\n**3.-** In a brief filed on August three, two thousand nine (folio 40), the claimant states that there is no prior case as it concerns harm to a collective interest affecting indigenous people in an indigenous reserve who are not part of the development association in that reserve. He adds that the harm is caused by the direct application of the challenged norms. He considers that there is no judicial or administrative avenue to bring his claim, and thus there is no underlying matter. He also provided ten sets of copies of the filing brief and proceeded to authenticating his signature on the original filing brief (folio 39).\n\n**4.-** By resolution at ten thirty hours on September seventeen, two thousand nine (folio 43), the action was granted leave to proceed, granting a hearing to the Office of the Attorney General and the National Commission on Indigenous Affairs (Comisión Nacional de Asuntos Indígenas).\n\n**5.-** In a brief filed on October twenty, two thousand nine (folio 49), the claimant reiterates that the compulsory nature of belonging to a development association, as well as the individual and collective representation it holds, abandons the indigenous community’s own traditional structure with its customs and violates their right to free association. He insists that the development associations are constituted by members who, in most territories, represent the minority of the indigenous population. He states that it is this minority that makes decisions regarding the entire political, economic, and cultural life of the indigenous communities. He points out that, despite being contrary to the Political Constitution and various international conventions, he requested membership from the development association of Térraba, which was denied by both the Board of Directors and by an irregular General Assembly. He adds that the resolution of the Board of Directors was issued extemporaneously, since the deadlines had expired, meaning he should have been automatically affiliated, like the other applicants. He states that on September twenty-one, two thousand nine, the National Director of the National Directorate of Community Development (Dirección Nacional de Desarrollo de la Comunidad, DINADECO) responded to his request for intervention of the Development Association of Térraba, filed on March sixteen, two thousand nine, indicating that to request an accounting, bring a nullity action, or denounce a director, one must be a member.\n\n**6.-** By brief received in the Secretariat of the Chamber at nineteen thirty-five hours on October twenty, two thousand nine (folio 79), Manuel Villanueva Villanueva, identity card number 6-0096-0467; Rafael Flores Reyes, identity card number 6-0216-0683; Rómulo Flores Gómez, identity card number 6-0046-0571; Fabio Flores Reyes, identity card number 6-0241-0823; Leonel Villanueva Villanueva, identity card number 6-0223-0629; Glen Villanueva Vega, identity card number 1-1421-0388; Cipriano Nájera Rivera, identity card number 6-0194-0462; Guido Rivera Fernández, identity card number 1-0918-0224; Marcos Rivera Fernández, identity card number 1-1144-0710; Paulino Nájera Rivera, identity card number 6-0175-0488; Enrique Rivera Rivera, identity card number 6-071-0255, and Antonio Nájera Rivera, identity card number 6-0160-0388, all indigenous residents of the Térraba indigenous reserve, filed a coadjuvancy (coadyuvancia). They indicate that the development association fails to fulfill its purpose of safeguarding the interests of indigenous people, and in its actions attacks and discriminates against the majority of the reserve's inhabitants who are not part of said association. They cite as examples the denial of a building permit for a church; the granting of operating permits for liquor establishments or bars within the territory of the reserve; and the illegal extraction of materials without the respective permit from the competent environmental authorities. They add that the aforementioned development association interferes with its criteria to determine whether government authorities grant or not the benefit of a family housing voucher, which limits the access of Térraba indigenous people to dignified housing and injures the right not to be discriminated against as a result of the application of white law against indigenous people. They consider that the integral association, through its actions, contravenes the Political Constitution by assuming legal powers that the unconstitutional norms assign to it.\n\n**7.-** The Office of the Attorney General rendered its report visible on folios 102 to 120. It points out that the central theme of the discussion relates to the participation and integration of indigenous collectivities in the CONAI. It adds, regarding the standing to file the unconstitutionality action, that the action has been admitted insofar as the concurrence of a diffuse interest has been verified, as the claimant acts in defense of the interests of the indigenous collectivity. It points out that various instruments of international human rights law recognize that indigenous peoples have a fundamental right to participate in and form part of public bodies that exercise competencies in indigenous affairs. It adds that Article 6 of ILO Convention 169 ensures indigenous peoples the right to participate, under conditions of freedom, in the decisions agreed upon by administrative bodies holding competencies directly related to indigenous affairs. It states that Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples also recognizes the right of indigenous peoples to participate in decisions agreed upon by administrative bodies that hold competencies in matters directly related to the development policy of indigenous peoples. It adds that the Constitutional Chamber, in judgment number 3003-1992, determined that the right established in the mentioned Article 6 of ILO Convention 169 is a right to participation and also a right to protection of minorities. It indicates that constitutional jurisprudence, in judgments number 2253-96 and 3485-2003, has recognized that the right to participation grants indigenous peoples the right to have broad representation within the CONAI, which must be sufficiently broad to allow the will of the indigenous communities to determine the course of the decisions of said Commission. It states that the mentioned right to participation can be exercised through representatives of the indigenous communities, who must always be designated through an electoral process that ensures the possibility of participation for the persons who make up each indigenous community; as provided in Article 18 of the Universal Declaration on the Rights of Indigenous Peoples. It considers that there is no possibility of admitting in the CONAI, or in any other administrative body with competencies over matters concerning indigenous peoples, a representation that lacks the democratic legitimacy based on an electoral process founded on the democratic principle and the principle of autonomy of indigenous peoples; a process that, according to constitutional jurisprudence, must guarantee broad and organized participation of all indigenous people of the respective community. It considers that the questioned norms, as well as Article 2 of the Law of the National Commission on Indigenous Affairs, cannot be interpreted as a means that illegitimately restricts the right to participation guaranteed in international conventions; nor do they contain any kind of unconstitutional reproach leading to their annulment. It states that, with the purpose of guaranteeing the right of indigenous peoples to participate in the decisions of the administrative body for indigenous affairs, the existence of some means must be ensured by which indigenous communities can legally represent themselves and express their collective will. Likewise, they must be provided with a means that guarantees indigenous communities enjoy a certain degree of autonomy from the central State. It indicates that the right to participation presupposes the State's obligation to provide indigenous communities with a means to exercise their representation, acquire rights, and assume obligations; ensuring them a certain degree of autonomy in the administration of local affairs and their territories; an obligation recognized in Article 2 of the Indigenous Law. It adds that the mentioned international instruments leave the State a certain power of legal configuration to establish the means through which indigenous communities can exercise their right to represent themselves. In the Costa Rican case, the Law of the National Commission on Indigenous Affairs has opted for indigenous communities to adopt the legal form of development associations to obtain legal personality. Articles 3, 4, 5, 6, 7, and 15 of the Regulation to the Indigenous Law establish various measures for indigenous communities to adopt the figure of a development association as a way to represent themselves legally and to exercise the administration of their local affairs. These norms, it continues, establish: a) the territorial scope of the development associations, which is identified with the territory of the indigenous communities; b) provisions aimed at preventing the intervention of non-indigenous development associations in the affairs of said communities; c) powers for the development associations to coordinate necessary measures for protecting their historical, archaeological, and natural heritage with various public institutions; and d) the guarantee that traditional organizations can continue functioning within the development association that represents the community; as well as the possibility of establishing specific development associations and auxiliary committees for the objectives of the community's development association. It points out that Articles 1, 2, and 5 of the Regulation to the Indigenous Law establish that, to guarantee the integrity and unity of the local government of indigenous communities, it must be ensured that only one development association exists per indigenous community. It considers that neither Article 2 of the Law of the National Commission on Indigenous Affairs nor the infra-legal norms that develop it violate the right of indigenous persons to participate in the electoral process for designating the community's representatives. It warns that the fact that, in the Costa Rican system, a person must be a member of an indigenous development association to exercise the right to participation in local indigenous affairs is neither an unreasonable nor an illegitimate requirement. On the contrary, it continues, in order to guarantee the right of indigenous peoples to administer their own affairs, the State's obligation is imposed to establish necessary and reasonable measures to prevent the intervention of non-indigenous particular persons or groups in the affairs of indigenous communities. This includes that it is also the State's duty to establish the means through which a person may and must accredit their status as indigenous to exercise the participation rights established in international conventions. In the Costa Rican case, the State has opted, as a means to guarantee the exercise of the right to participation, for the person to be enrolled as a member within an indigenous development association. It is the responsibility of that association to accredit the indigenous status of persons requesting membership. It considers that it cannot be argued, as the claimant does, that the legal system leaves unprotected those persons whose membership request has been denied, since, once the status of an indigenous person is proven, development associations do not enjoy discretionary freedom to accept or reject their membership; unless objective and serious causes exist, previously established in the association's bylaws, that justify the denial, as the Chamber established in judgment number 13994-2009. It adds that associations also do not enjoy discretionary freedom to limit the right of indigenous persons to participate in the electoral process for designating the community's representatives. In conclusion, it points out that in the Costa Rican legal system, there exist the necessary legal provisions to protect the right of indigenous persons to participate in the electoral process for designating their community's representatives; therefore, it finds no basis to declare the norms challenged here unconstitutional.\n\n**8.-** Mr. Victor Julio Mena Mena, in his capacity as President of the Board of Directors of the National Commission on Indigenous Affairs, responds to the granted hearing on folios 121 to 126. He states, regarding Articles 25 and 33 of the Political Constitution, that individually or collectively, indigenous people as citizens can make use of their rights without needing to resort to development associations or to be part of them, like any Costa Rican. He adds that the development association system was not arbitrarily imposed on indigenous communities, but rather that thanks to this system, a type of organization that existed informally in all communities since before the arrival of the Spanish was formalized. He points out that the development associations have a democratic composition, by virtue of which every individual over twelve years of age, man or woman, belongs to the group and elects their representatives. He considers that it cannot be inferred from the challenged regulations that every person, by the mere fact of residing in an indigenous territory and forming part of a community of that same nature, is ipso jure a member of the corresponding development association. Nor do they prevent an indigenous person or group of them from forming associations different from community development ones, such as cooperatives, unions, or commercial companies. He indicates that the challenged norms have done nothing more than concretize and formalize the type of organization that responds to the bases established by the legislator in the Indigenous Law, which is also in accordance with ILO Convention 169, as it materializes the State's obligation to ensure that indigenous communities adopt a legal organization in accordance with their traditions. He states that incorporation into the development associations is not automatic but requires an act of membership that can only be the result of a free decision by each of the individuals that make up the community. An indigenous person's refusal to join the association has never brought them any consequence contrary to their dignity as a human being, nor does it impose an arbitrary restriction on the enjoyment of their fundamental rights. It is false, he continues, that only members of the development associations have the right to housing vouchers or a plot of land; the development associations are not the ones who deliver or build the houses, but rather said activity is carried out by state agents once the required requisites are fulfilled. He requests that the action be dismissed.\n\n**9.-** By resolution at nine forty hours on November six, two thousand nine (folio 127), the coadjuvancy filed was admitted.\n\n**10.-** The edicts referred to in the second paragraph of Article 81 of the Law of Constitutional Jurisdiction were published in numbers 195, 196, and 197 of the Judicial Bulletin (Boletín Judicial), on October seven, eight, and nine, two thousand nine (folio 48).\n\n**11.-** The hearing indicated in Articles 10 and 85 of the Law of Constitutional Jurisdiction is dispensed with, based on the power granted to the Chamber by numera1 9 ibidem, considering this resolution sufficiently founded on evident principles and norms, as well as on the jurisprudence of this Tribunal.\n\n**12.-** In the proceedings, the prescriptions of the law have been complied with.\n\nWritten by **Magistrate Mora Mora**; and,\n\n**Considering:**\n\n**I.- On admissibility.** The unconstitutionality action is a process with certain formalities that must be satisfied so that the Chamber can validly examine the merits of the challenge. Article 75 of the Law of Constitutional Jurisdiction establishes the admissibility prerequisites for unconstitutionality actions, and regulates three different situations: in the first paragraph, it requires the existence of a pending matter to be resolved, whether in a judicial venue, including habeas corpus or amparo remedies, or in the administrative venue – in the administrative exhaustion phase – in which the unconstitutionality of the questioned norm is invoked as a reasonable means of protecting the right considered harmed in the principal matter. In the second and third paragraphs, the direct action is regulated – no underlying matter is required – in the following cases: a) when, due to the nature of the matter, there is no individual and direct harm, or it concerns the defense of diffuse interests, or those concerning the collectivity as a whole; and b) when the action is brought by the Attorney General, the Comptroller General, the Prosecutor General, and the Ombudsman. In relation to diffuse interests, this Tribunal has stated that:\n\n“Diffuse interests, although difficult to define and even more difficult to identify, cannot be in our law – as this Chamber has already stated – merely collective interests; nor so diffuse that their ownership is confused with that of the national community as a whole, nor so concrete that identified or easily identifiable specific persons, or personalized groups, emerge in relation to them, whose standing would derive, not from diffuse interests, but from corporate interests concerning a community as a whole. It therefore concerns individual interests, but at the same time, diluted in more or less extensive and amorphous groups of people who share an interest and, therefore, suffer an actual or potential harm, more or less equal for all, which is why it is rightly said that they are equal interests of the groups that find themselves in certain circumstances and, at the same time, of each one of them. That is, diffuse interests share a dual nature, as they are both collective – for being common to a generality – and individual, for which they can be claimed in such character. (...) In summary, diffuse interests are those whose ownership belongs to groups of people not formally organized, but united based on a certain social need, a physical characteristic, their ethnic origin, a specific personal or ideological orientation, the consumption of a certain product, etc.” (Judgment number 8239-01 at sixteen hours seven minutes on August fourteen, two thousand one).\n\nIn the present case, the claimant bases his standing on the abstract constitutional review channel and invokes, in his capacity as an indigenous person, interests concerning the indigenous collectivity. The examination and resolution of this unconstitutionality action via abstract review is admissible, because the claimant holds a diffuse interest, given that it concerns a specific community – the indigenous community – and the alleged norms affect them in that condition.\n\n**II.-** In the present matter, the claimant complains, among other challenges, that the Board of Directors of the Development Association of Térraba denied his membership application; a decision confirmed by an irregularly held General Assembly. Likewise, that the Director of DINADECO, faced with a request for intervention of the mentioned Association, indicated that to request an accounting, bring a nullity action, or denounce a director, one must be a member of said Association. In this regard, this Tribunal recalls that the object of an unconstitutionality proceeding is not to address an individual harm that the claimant may allege; on the contrary, its object is a general interest that acts subject to public law and the norms that make up the legal system are in conformity with Constitutional Law. Such challenges do not actually have a normative character, since they do not contain provisions tending to regulate any legal situation in a general manner.\n\nOn the contrary, as is evident from the filing brief itself and from another brief subsequently submitted by the plaintiff, some of his claims through this avenue are that the Térraba Development Association be compelled to have him as a member and that DINADECO intervene in said Association; claims that entail concrete actions, which, in accordance with the provisions of Article 73 of the Constitutional Jurisdiction Law, are not appropriate for this Jurisdiction to hear through an action of unconstitutionality (acción de inconstitucionalidad) proceeding. By virtue of the foregoing and as provided in Article 48 of the Political Constitution and Article 29 et seq. of the Law governing this Jurisdiction, such claims are properly for examination in an amparo appeal (recurso de amparo). Consequently, the proper course is to detach the filing brief and the brief added at folios 49 to 78 and certify them, so that they may be processed as an amparo appeal regarding this challenge.\n\nIII.- Subject of the challenge. The plaintiff challenges Articles 3, 4, 5, 6, 7, and 15 of the Regulation to the Indigenous Law and the Executive Decree concerning the Legal Representation of Indigenous Communities by Development Associations and as Local Government for violating the right of association and the principle of equality - Articles 25 and 33 of the Political Constitution -; as well as Articles 16 and 23 of the American Convention on Human Rights, Article 6 of Convention 169 of the International Labour Organization, and Articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples. He considers that said norms force indigenous people to form part of development associations and prevent indigenous communities from freely and democratically electing the members who represent them on the National Commission on Indigenous Affairs. Ultimately, the plaintiff considers the figure of development associations as the organization that represents indigenous communities before CONAI to be contrary to Constitutional Law. The challenged norms state the following:\n\nRegulation to the Indigenous Law, Executive Decree No. 8487-G of April twenty-sixth, nineteen seventy-eight, published in the Official Gazette La Gaceta No. 89 of May tenth, nineteen seventy-eight:\n\n\"Article 3.- For the exercise of the rights and fulfillment of the obligations referred to in Article 2 of the Indigenous Law, the Indigenous Communities shall adopt the organization provided for in Law No. 3859 on the National Directorate for Community Development Associations and its Regulation.\n\nArticle 4.- The Presidents of the respective Indigenous Development Associations, legally registered, and with the powers of general attorneys-in-fact thereof, shall appear before the Office of the Attorney General of the Republic, for the granting of the deed and registration in the Public Registry, of the Reserves in the name of the respective Indigenous Communities.\n\nArticle 5.- The traditional community structures referred to in Article 4 of the Law, shall operate within the respective Communities; and the Development Associations, once legally registered, shall judicially and extrajudicially represent said Communities.\n\nArticle 6.- The Comprehensive Community Development Associations shall designate the Auxiliary Committees as bodies subordinate to them and with their own attributions for the fulfillment of the assigned purposes.\n\nArticle 7.- In the cases referred to in Article 4, paragraph 2 of the Law, or when the dispersion and remoteness of the population so warrant, the traditional organization must affiliate with the Comprehensive Development Associations, forming Specific Development Associations, for the fulfillment of the specific objectives of the Indigenous Community.\n\nArticle 15.- The National Commission on Indigenous Affairs, and the Comprehensive Development Associations or their legal representatives, shall coordinate, at the Ministerial level, and with other autonomous entities of the State, the application of the preventive and repressive actions established in Articles 6 and 7 of the Indigenous Law, to safeguard the Archaeological, Mineral, Hydrological and forest (flora and fauna) Heritage of all the reserves.\"\n\nLegal Representation of Indigenous Communities by Development Associations and as Local Government, Executive Decree No. 13568-C-G of April thirtieth, nineteen eighty-two, published in the Official Gazette La Gaceta No. 94 of May seventeenth, nineteen eighty-two:\n\n\"Article 1.- The Comprehensive Development Associations have the legal representation of the Indigenous Communities and act as the local government thereof.\n\nArticle 2.- There can only be a single Indigenous Development Association for each Indigenous Reserve. In the event the size of the Reserve so warrants, there may be local committees and/or specific associations, for specific purposes, but these bodies remain dependent on the Comprehensive Development Association.\n\nArticle 3.- The jurisdictional boundaries of the Comprehensive Development Associations of the Indigenous Communities must coincide with the boundaries of the Reserves as defined by the decrees that established these Reserves. Non-Indigenous Community Development Associations cannot have jurisdiction over areas located within the Indigenous Reserves; Indigenous Community Development Associations cannot have jurisdiction over areas located outside the Indigenous Reserves.\n\nArticle 4.- Comprehensive Development Associations, whether indigenous or not, must henceforth adhere to the provisions established in Articles 2 and 3 of this decree, particularly regarding their jurisdictional boundaries.\n\nArticle 5.- In the event that several Comprehensive Development Associations currently exist in the same Indigenous Reserve, the National Commission on Indigenous Affairs (CONAI) must process before the Executive Branch a project to divide the current reserve into a number of reserves equal to the number of existing Comprehensive Development Associations. In the event the foregoing cannot be carried out, the Development Associations must merge, such that a single reserve remains, in accordance with the preceding provisions.\n\nArticle 6.- Effective upon publication.\"\n\nIV.- On the merits. This Court has already ruled on Article 3 of the Regulation to the Indigenous Law in the following terms:\n\n\"V.- JURISPRUDENTIAL BACKGROUND. In vote number 5483-95, this Chamber conducted a detailed analysis of the right of association in its various aspects, in which it stated:\n\n\"II ).- THE RIGHT OF ASSOCIATION RECOGNIZED BY ARTICLE 25 OF THE CONSTITUTION.- As a thesis of principle, the essential content of the right of association developed by Article 25 of the Constitution recognizes for every person a fundamental protection in the dual manner in which such right can manifest itself, that is, through the so-called positive freedom to found and participate in associations or to adhere to and belong to them, as well as in the negative exercise of the freedom, by virtue of which it is not possible to compel any person to form part of associations or to remain in them.- This norm constitutes, in very general terms, the common law, of general application and of constitutional origin for all associations, unless, for special reasons and the peculiar nature of some activities, the law provides otherwise. It must be clearly understood, as doctrine has maintained, that public freedoms are nothing other than the constitutional recognition of personal autonomy; precisely because it is a sphere of autonomy, the faculties that comprise it can be exercised or not with identical power of self-determination. Based on these ideas, Costa Rican doctrine has considered that the characteristic notes of the right of association are the following: a) that it must arise as a free manifestation of the will of the human being and therefore a coercive association would not be a true expression of such right, but a true negation of it; b) that the proposed objective is the promotion and defense of lawful common purposes; c) that it has a collective character, due to the plurality of members that make up the association; d) that it has permanence, for being a stable organization and for the existence of a permanent link among its members; and e) that the internal structure and functioning of the association are, permanently, grounded in the democratic promotion of its members. Article 25 of the Constitution imposes on the Legislative Branch a natural and insurmountable limit of respect in its legislative function, by virtue of which the possibility for private individuals to create associations for lawful private purposes cannot be restricted, a boundary that could not be crossed without emptying the right itself of its content; that is, as long as the purposes of the association are private and lawful, the activity would be beyond the action of the law, given that the exercise of this right is a pure expression of the autonomous sphere of every person and is thus protected by the explicit content provided in the second paragraph of Article 28 of the Constitution. From what has been said, it follows that Article 25 develops a genus that we might call \"pure association\" and that corresponds to the broadest constitutional recognition of personal autonomy, which is why that freedom is exercised with the power of self-determination, without forgetting that the final part of this Article 25 establishes that no one is obliged to form part of any association. However, this genus does not exclude the legal possibility that other modalities of association exist, and in the Political Constitution itself there are other manifestations of that right with special recognition and with different legal regimes, such as, for example, political parties (Article 98), employers' and workers' unions (Article 60), and the cooperative movement (Article 64). Therefore, it can be inferred that the Political Constitution has provided several options to express the right of association. Based on the foregoing, what is appropriate is to analyze the nature of mandatory professional membership (colegiatura obligatoria), to define whether the institution corresponds to \"pure association\" or if, on the contrary, it is a type of organization of a different nature and, if so, to determine to what extent it is constitutionally possible for the State to regulate those activities; whether it concerns the exercise of freedoms of private interest, or if, on the contrary, the exercise of delegated public interest powers or to exercise public administrative functions; and of course, also to define the very origin of the structure of the institution of professional membership, confronting it with the free expression of will to form or create an association and thus determine the legal origin of professional colleges.\"\n\nVI.- NORMATIVE ANALYSIS. Law on Community Development No. 3859 in Chapter III \"On Community Development Associations\", Articles 14 and 16 provide:\n\n\"Article 14.- The constitution and operation of Associations for Community Development are hereby declared to be of public interest, as a means of encouraging populations to organize to fight alongside State bodies for the economic and social development of the country.\"\n\nArticle 15 (...)\n\nArticle 16.- To constitute Comprehensive Development Associations, it shall be necessary for at least one hundred persons, and no more than one thousand five hundred, over fifteen years of age, interested in promoting, through joint and organized effort, the economic development and the social and cultural progress of a specific area of the country, to assemble. The jurisdictional area of a Development Association shall correspond to that territory which constitutes a natural foundation of community grouping. In exceptional cases, the Directorate may authorize the existence of Development Associations composed of a number lower or higher than that indicated above. In no case may Associations be created with a number of persons less than twenty-five.\"\n\nFor its part, Indigenous Law No. 6172 states, regarding what is relevant to the merits of the matter, the following:\n\n\"Article 2°.- Indigenous communities have full legal capacity to acquire rights and contract obligations of all kinds. They are not state entities. The reserves mentioned in Article one of this law are hereby declared the property of the indigenous communities. The Office of the Attorney General of the Republic shall register these reserves in the Public Registry in the name of the respective indigenous communities. The reserves shall be registered free of any encumbrance. The transfers from the State to the indigenous communities shall be free of charge, shall not pay registration fees, and shall be exempt from all other types of tax burdens in accordance with the terms established in the Law of CONAI.\n\nArticle 3°- Indigenous reserves are inalienable and imprescriptible, non-transferable, and exclusive to the indigenous communities that inhabit them. Non-indigenous persons may not rent, lease, buy, or in any other way acquire land or farms comprised within these reserves. Indigenous persons may only negotiate their land with other indigenous persons. Any transfer or negotiation of land or improvements thereon in the indigenous reserves, between indigenous and non-indigenous persons, is absolutely null, with the legal consequences of the case.\n\nThe lands and their improvements and the products of the indigenous reserves shall be exempt from all kinds of national or municipal taxes, present or future.\n\nRegarding the establishment of a community structure, the same regulatory body states:\n\n\"Article 4.- The reserves shall be governed by the indigenous people in their traditional community structures or by the laws of the Republic that govern them, under the coordination and advisory assistance of CONAI.\n\nThe population of each of the reserves constitutes a single community administered by a Board of Directors representing the entire population; auxiliary committees shall depend on the main council if the geographic extent so warrants.\"\n\nRegarding indigenous property, articles 8 and 9 provide:\n\n\"Article 8.- ITCO, in coordination with CONAI, shall be the body responsible for carrying out the territorial demarcation of the indigenous reserves, in accordance with the legally established limits.\"\n\n\"Article 9.- The lands belonging to ITCO included in the demarcation of the indigenous reserves, and the Boruca-Térraba, Ujarrás-Salitre-Cabagra Reserves, must be transferred by that institution to the indigenous communities.\"\n\nFor its part, Article 3 of Executive Decree No. 848-G of April 26, 1978, which is being challenged, states verbatim:\n\n\"For the exercise of the rights and fulfillment of the obligations referred to in Article 2 of the Indigenous Law, the Indigenous Communities shall adopt the form of organization provided for in Law No. 3859 on the National Directorate of Community Development Associations and its Regulations.\"\n\nIn the opinion of the plaintiff, this last provision is contrary to Article 25 of the Constitution, as it conditions the exercise of indigenous rights upon the adoption of a Community Development Association.\n\nVII. LEGAL INSTRUMENTS CONCERNING INDIGENOUS GROUPS. At the international level, rules have been enacted that seek for States to establish certain mechanisms to favor the situation of indigenous groups, given the need to preserve the customs and traditions of these groups, which in some countries are clearly minorities. On this point, this Chamber ruled in judgment N° 2253-96 at 15:39 hours on May 14, 1996, in which it stated:\n\n\"...There are various legal instruments aimed at promoting real equality among subjects; among them, the particular situation of aboriginal peoples can be identified, who have traditionally been marginalized for historical, social, economic, and cultural reasons. They suffer the consequences of a society that does not understand or respect their differences, and which, on occasion, tends to view them as beings incapable of directing their own lives and destinies. Given this situation, the international community felt the need to adopt measures in favor of indigenous people. Thus, Convention 169 of the International Labour Organization -ILO-, called \"Convention concerning Indigenous and Tribal Peoples in Independent Countries,\" incorporated into our legal system through Law No. 7316 of November 3, 1992, established the special protection of indigenous people and their culture.\"\n\nIt is of interest, for the purposes of the merits of the action, to bear in mind that the signatory States of the aforementioned international instrument assumed commitments in the following terms:\n\n\"Article 2\n\n1. Governments shall assume the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.\n\n2. This action shall include measures:\n\na) ensuring that members of these peoples benefit on an equal footing from the rights and opportunities that national legislation grants to other members of the population;\n\nb) promoting the full effectiveness of the social, economic, and cultural rights of these peoples, respecting their social and cultural identity, their customs and traditions, and their institutions;\n\nc) helping members of the peoples concerned to eliminate socio-economic gaps that may exist between indigenous members and other members of the national community, in a manner compatible with their aspirations and ways of life.\n\n(....)\n\n\"Article 6\n\n1. In applying the provisions of this Convention, governments shall:\n\na) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;\n\nb) establish means by which these peoples can freely participate, at least to the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes that concern them;\n\nc) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.\n\n2. The consultations carried out in application of this Convention shall be undertaken in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent regarding the proposed measures.\n\nArticle 7:\n\n1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of national and regional development plans and programmes which may affect them directly.\n\n2. The improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and cooperation, shall be a priority in the overall economic development plans of the regions where they live. Special development projects for these regions shall also be designed so as to promote such improvement.\n\n(3....)\n\n4. Governments shall take measures, in cooperation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.\n\nArticle 8:\n\n1. In applying national laws and regulations to the peoples concerned, due account shall be taken of their customs or customary law.\n\n2. These peoples shall have the right to retain their own customs and institutions, provided these are not incompatible with fundamental rights defined by the national legal system nor with internationally recognized human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of this principle.\n\n3. The application of paragraphs 1 and 2 of this article shall not prevent members of these peoples from exercising the rights recognized to all citizens of the country and from assuming the corresponding obligations.\" (The emphasis is not in the original).\n\nAs can be deduced from the transcribed norms, the State has the obligation to guarantee the right of indigenous peoples to organize and participate in decision-making that concerns them, as well as to constitute representative bodies and participate in the election of the persons who will hold those positions. Article 6 of the cited Convention established the obligation of States to establish means through which the peoples concerned can participate freely and to consult indigenous groups—through their representative institutions—whenever the issuance of legislative or administrative measures that may affect them is being discussed, which does not, as stated in the action, imply an obligation to be part of those groups; rather, it is a free decision involving taking part in the direction of the community. The Convention expressly provides that the adoption of a specific organization does not prevent members of these peoples from \"exercising the rights recognized to all citizens of the country and from assuming the corresponding obligations.\"\n\nVIII.- ON THE MERITS OF THE MATTER:\n\nOnce the essential elements of the right of association and the legal regime of indigenous peoples have been determined, it is necessary to elucidate whether the obligation contained in Article 3 of the Regulations to the Indigenous Law is contrary to the Constitution. This Chamber, in ruling N° 5486-95, transcribed for the relevant part, indicated in Considering Clause V that the right of association has two aspects: the positive one, which refers to the freedom to found and participate in associations and to join them, and the negative one, which implies the prohibition of compelling a person to be a member of a specific private nature group, as well as to remain in it. The appellant alleges that the negative aspect of his right has been violated, as he considers that the provision of Article 3 of Executive Decree No. 848-G of April 26, 1978, obliges him to belong to a Community Development Association as a necessary condition for the exercise of rights and obligations; however, this Chamber considers that the appellant's argument is unfounded, as will be explained below. This Chamber is clear that, as the plaintiff points out, the Regulation establishes that for the exercise of the rights and obligations established in the Indigenous Law (Article 2)—basically rights and duties related to the administration of the reserve—the indigenous communities shall adopt the organization of a Community Development Association, to which, however, it does not oblige them to belong. Indeed, being part of an indigenous community does not automatically oblige membership in the Community Development Association; the bylaws of these associations regulate the modalities of affiliation and disaffiliation, information that is recorded in the corresponding Registry and can be consulted by any person wishing to join or disaffiliate, which in no way prevents them, in the exercise of their fundamental rights, from joining another organization of their interest or from exercising, in general, the rights recognized to all citizens of the country. The Regulations to the Law of Community Development Associations reinforce the foregoing by expressly stating that \"no one can be obliged to be part of an association or not to be part of it, and therefore, clauses in the bylaws that establish limitations on the freedom to associate or withdraw from the organization... are absolutely null and void\" (Art. 22). As the Office of the Attorney General correctly points out in its report, the refusal of an indigenous person to join an association of this type does not bring about any further consequences than that of reducing their participation in the adoption of indigenous decisions relating to the administration of the indigenous reserve, over which a form of ownership with collective features, characteristic of their culture, is exercised. The exercise of rights—participation in the control of the collective ownership of the reserve—and obligations—subjection to control over the public funds allocated to them—that the Regulation conditions upon integration into this type of organization, are those deriving from the Indigenous Law, which provided for the free transfer of lands that belonged to ITCO—public domain property—to the indigenous reserves, and this Chamber does not find that the communal purpose of the land established by the Indigenous Law—not by the Regulation—and the limitations established therein for this type of communal property—prohibition of transfer of ownership or lease—is disproportionate or unreasonable, inasmuch as it is viable for the State—when awarding the ownership of the property in the name of the indigenous communities free of charge—to impose certain conditions for said communities to exercise their rights over those lands; this to the extent that it is a legitimate exercise of State authority in its capacity as transferor of ownership. The situation would be different if the existence of private ownership over these lands were asserted, in which case the exercise of the attributes of ownership could not be conditioned upon integration into a Community Development Association.\n\nIX.- Furthermore, from a simple reading of the provisions of the Indigenous Law that have been transcribed, it is evident that it is the Law—not the regulation—that establishes communal ownership and organization. The second paragraph of Article 2 regulates this communal ownership by indicating: \"...The reserves mentioned in Article 1 of this law are declared the property of the indigenous communities...\". Regarding the organization, the same regulatory body establishes that \"...the reserves shall be governed by the indigenous people in their traditional community structures or by the Laws of the Republic that govern them, under the coordination and advisory assistance of CONAI\" (the emphasis is not in the original). Now, it is the Law on Community Development (No. 3859) that regulates Community Development Associations, and Article 3 of the Regulation to the Indigenous Law being challenged has done nothing more than specify the type of organization that responds to the bases established by the legislator in the Indigenous Law that serves as its framework, which, moreover, conforms to Convention 169 of the International Labour Organization, insofar as it materializes the State's obligation to ensure that indigenous communities adopt a legal organization in keeping with their traditions, enabling them to exercise the rights and obligations that the law recognizes for them. It should not be overlooked that Community Development Associations—more than any other legal figure—are the ones that most closely resemble the communal nature of traditional indigenous organization; additionally, this type of legal structure allows this sector of the population to enjoy special benefits (Article 19 of Law 3859) that they would not enjoy with another type of legal structuring—for example, receiving services, donations, subsidies, and annual transfers of money, both from the State and from its institutions—which entails, of course, the ordinary control of those public resources.\" (Judgment number 2002-02623 at fourteen forty-one hours on March thirteen, two thousand two).\n\nIn the same vein, judgment number 2009-013994, of eleven hours and thirty-nine minutes of the twenty-eighth of August of two thousand nine.\n\n**V.-** From the transcribed judgments and the normative analysis carried out, the Chamber in its jurisprudence has considered that the fact that the integral development associations (asociaciones de desarrollo integral) are the entities responsible for representing indigenous communities judicially and extrajudicially, as representative institutions of the inhabitants of the reserves, is not contrary to Constitutional Law. Likewise, the challenged norms also do not prevent indigenous people from forming part of any other legal organization of their interest. Finally, it is necessary to clarify that it is the Bylaws of each of the integral development associations that establish the internal process in each association for designating its representative before the CONAI, and not the norms challenged by the petitioner.\n\n**VI.- Conclusion.** Ultimately, Articles 3, 4, 5, 6, 7, and 15 of the Reglamento a la Ley Indígena and the Decreto Ejecutivo regarding the Legal Representation of Indigenous Communities by Development Associations and as Local Government are not contrary to Constitutional Law. On the other hand, the action must be declared inadmissible regarding the remaining challenges made by the petitioner.\n\n**Por tanto:**\n\nThe action is declared without merit in relation to Articles 3, 4, 5, 6, 7, and 15 of the Reglamento a la Ley Indígena, Decreto Ejecutivo number 8487-G of the twenty-sixth of April of nineteen seventy-eight, and the Decreto regarding the Legal Representation of Indigenous Communities by Development Associations and as Local Government, Decreto Ejecutivo number 13568-C-G of the thirtieth of April of nineteen eighty-two. Separate the filing brief and the brief added at folios 49 to 78 and have them certified, so that they may be processed as an amparo appeal.\n\n**Gilbert Armijo S.**\n\n**Presidente a.i.**\n\n**Luis Paulino Mora M. Fernando Cruz C.**\n\n**Fernando Castillo V. Rosa María Abdelnour G.**\n\n**Jorge Araya G. José Paulino Hernández G.**\n\nEXPEDIENTE N° 09-007688-0007-CO\n\nTeléfonos: 2295-3696/2295-3697/2295-3698/2295-3700. Fax: 2295-3712. Dirección electrónica: www.poder-judicial.go.cr/salaconstitucional"
}