VII.-\nRegarding the specific case. The appellant alleges that SETENA violated her right to citizen participation during the public hearing held on November 9, 2013, at the Eddy Bermúdez gymnasium in Limón, corresponding to the file for the Nueva Terminal de Contenedores de Moín project, since despite requesting the floor, she was not granted it.
In this regard, the Chamber considers it proven that on May 25, 2012, the initial environmental assessment (evaluación ambiental inicial) document for the “Terminal de Contenedores de Moín” project, submitted on behalf of the company APM Terminals Moín S.A., was received at SETENA, to which file number D1-7968-2012-SETENA was assigned. Likewise, it is observed that through resolution number 2539-2013-SETENA of October 10, 2013, the Plenary Commission of SETENA agreed to hold a public hearing from 8:00 a.m. to 4:00 p.m. on November 9, 2013, at the Eddy Bermúdez Gymnasium in Limón. On the other hand, through a note received at SETENA on November 4, 2013, the appellant appeared in file number D1-7968-2012, requesting to speak during the public hearing to be held. Through official communication number SG-UE-DEA-146-2013, SETENA indicated that “during the event, a space for questions and comments would be established, within which you may exercise your right to speak.” The Chamber observes that, indeed, on November 9, 2013, the public hearing in question was held with the following program: from 7:00 a.m. to 8:00 a.m., registration of participants; from 8:00 a.m. to 8:30 a.m., first and second call, respectively; from 8:30 a.m. to 8:50 a.m., formal start of the activity – formal presentation by SETENA – establishment of the hearing rules; from 8:50 a.m. to 9:20 a.m., project description; from 9:20 a.m. to 11:00 a.m., presentation of the environmental impact assessment (Estudio de Impacto Ambiental, EIA); from 11:00 a.m. to 11:15 a.m., collection and classification of questions; from 11:15 a.m. to 12:00 p.m., reading of questions and answers to questions; from 12:00 p.m. to 1:00 p.m., lunch break; from 1:00 p.m. to 2:00 p.m., continuation of the reading of questions and answers; from 2:00 p.m. to 2:15 p.m., collection and classification of comment forms; from 2:15 p.m. to 4:00 p.m., space for replies to comments; 4:00 p.m., preparation of the minutes, reading, and signatures – closing of the activity. Now then, as was appropriate, at the beginning of the activity, the Secretary General of SETENA read the general program and explained the hearing rules, among which he specified: “(…) due to the order that must prevail in the holding of the hearing, behaviors that represent a breach of said purpose will generate, in the first instance, a call to order. If order is not restored, measures may be taken such as agreeing to a prudent pause, requiring the intervention of security, or the suspension of the hearing”. Now then, due to an outbreak of violence generated by some of those present, the aforementioned hearing, instead of being suspended as had been indicated in the general program rules, was brought to an end by the Secretary General of SETENA at approximately 1:40 p.m., such that the remaining phases of the hearing were not carried out: collection and classification of comment forms, space for replies to comments, and, finally, preparation of the minutes, reading, and signatures, along with the closing of the activity. This conclusion of the hearing has been fully accredited, both based on the video provided as evidence by the Secretary General of SETENA, and based on the literal transcript of the hearing, where it was recorded: “14. Suspension of the hearing. Uriel Juárez:… par (sic) holding this public hearing, at this moment we bring it to an end. Thank you very much!”.
Thus, instead of suspending the hearing, it was brought to an end, which implied excluding fundamental aspects of said session, such as the collection of comments and their replies. It should be noted that the right to participatory government, enshrined in Article 9 of the Political Constitution, constitutes, as explained in Considerando IV of this ruling, a guideline of constitutional orientation that permeates legislative and regulatory development, as well as the actions of the Administration. Precisely, in accordance with this constitutional mandate, numerals 6 and 22 of the Ley Orgánica del Ambiente and 3 of the Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental require the holding of the aforementioned hearing. For it to be considered correctly held, it should have concluded completely, which did not occur in this case, and, moreover, this is particularly serious, because neither the comments nor their replies would come to be taken into account at the time of issuance of the respective final act. This being the case, in the sub\nexamine, the protection of the constitutional right to participatory government, which can also be seen as a principle, can only become operative if its correct safeguarding is ensured when applying and interpreting the infra-constitutional regulations that require the holding of a complete hearing, given that we are facing a gross and evident violation of the hard core of the aforementioned right since, as noted, essential aspects (collection of participants' comments and their replies) have come to be left out, despite the fact that the hearing rules, set forth at the beginning of the activity, only referred to the suspension of the activity as the most drastic measure in the event of some disturbance. As is easily noted, this injury to participatory government does not require any complex evidentiary diligence for its demonstration, given the clarity with which the hearing rules were established. Furthermore, to claim that constitutional review is limited to the mere fact of whether or not a hearing took place, without analyzing basic aspects of the manner in which it is conducted (as the Constitutional Chamber has been doing), implies disfiguring the constitutional right to participatory government and leaving it as an empty shell, devoid of effective constitutional protection.
In the sub judice, SETENA itself breached the rules that it itself established for the proper conduct of the proceeding. It should be remembered that among the guidelines agreed upon prior to the start of the hearing was that, in the event of behaviors representing a breach of order, first a call to order would be made and if this did not produce the desired effects, a prudent pause would be agreed upon, the intervention of security would be requested, or the hearing would be suspended. The suspension of a proceeding is not the same as its conclusion. The former entails a rescheduling in order to satisfactorily complete what was omitted. In the second, the hearing is definitively terminated, such that it must be used when all scheduled phases have been exhausted without omitting any relevant one. However, in the specific case, an essential element of the public hearing was eliminated: the stage intended for interested persons to express themselves, aloud, for the reply to comments. If, due to the circumstances verified on November 9, 2013, it was not possible to conclude the public proceeding, the appropriate course of action would have been for SETENA to reschedule the hearing for later days and for it to be concluded as was appropriate.
Without detriment to what has been noted, the Chamber is aware that the disturbances that occurred during the final outcome of the hearing are not attributable to SETENA. Likewise, this Court recognizes that the respondent authority had scheduled the active intervention of the persons present. However, in consideration of the constitutional right to participatory government, stipulated in Article 9 of the Political Constitution, the Chamber deems it necessary to order in this amparo the conclusion of the public hearing held, with the purpose that the persons who had timely requested the floor during the comments phase may express their opinions aloud, for which purpose the pertinent organizational, security, and technological measures must be taken in order to conclude the public hearing normally.
VIII.-\nDissenting vote of Magistrate Jinesta Lobo, Magistrate Hernández López, and Magistrate Salazar Alvarado, with drafting by the second.
Therefore:
The appeal is granted. Miguel Marín Cantarero, in his capacity as ad hoc Secretary General of the Secretaría Técnica Nacional Ambiental, or whoever holds the position in his stead, is ordered to immediately proceed to conclude the public hearing of file number\nD1-7968-2012-SETENA, which must be held within the 15 business days following the notification of this judgment, with the purpose of concluding only the omitted phases according to the hearing rules set forth at the beginning thereof. The respondent authority is warned that, in accordance with the provisions of Article 71 of the Ley de la Jurisdicción Constitucional, imprisonment of three months to two years or a fine of twenty to sixty days shall be imposed on anyone who receives an order that must be complied with or enforced, issued within an amparo appeal, and does not comply with it or does not enforce it, provided that the crime is not more severely punished. The State is ordered to pay the costs, damages, and losses caused by the acts that serve as the basis for this declaration, which shall be liquidated in the execution of the judgment of the contentious-administrative court. Notify this judgment to Miguel Marín Cantarero, in his capacity as ad hoc Secretary General of the Secretaría Técnica Nacional Ambiental, or to whoever holds the position in his stead, personally. Magistrates Jinesta Lobo, Hernández López, and Salazar Alvarado dissent and reject the appeal outright.-
Gilbert Armijo S.
Presidente a.i.
EXPEDIENTE N°
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