\" .. it is verified when the sphere of extra-patrimonial interest of the individual is injured, however, since its violation can generate patrimonial consequences, it is appropriate to distinguish between subjective moral harm (daño moral subjetivo) “pure” or of affection, and objective or “objectified” moral harm (daño moral objetivo u objetivado). Subjective moral harm (daño moral subjetivo) occurs when an extra-patrimonial right has been injured, without affecting the assets, normally involving an unjust disturbance of the individual's mental conditions {displeasure, discouragement, despair, loss of satisfaction in living, etc., e.g., the offense against honor, dignity, privacy, the so-called loss of enjoyment of life, grief over the death of a relative}, thus one refers to the social part and the other to the affective part of the assets. \"
Regarding the proof of moral harm (daño moral), in that same judgment, the Chamber established:
\" Regarding the proof of moral harm (daño moral), the principle is as follows: its existence and gravity must be proven, a burden that falls on the victim; however, it has been admitted that such proof can be achieved through human presumptions inferred from indicia, since the unlawful generating act reveals the moral harm (daño moral), because when the psyche, health, physical integrity, honor, privacy, etc. are damaged, it is easy to infer the harm (daño); for this reason, it is said that proof of moral harm (daño moral) exists “in re ipsa”. On this matter, this Chamber has stated that in matters of moral harm (daño moral) “... it is sufficient, on some occasions, for the culpable act to occur for the harm (daño) to arise from it, according to the prudent appreciation of the trial judges, when they can infer the harm (daño) based on circumstantial evidence (Judgment No. 114 of 16 hours of November 2, 1979)”
The harm (daño) must be effective, assessable, and individualizable in the extra-patrimonial sphere of the victim, insofar as it constituted an indefinite, suspensive, and impeditive limitation of the rights of enjoyment. Regarding the quantum, the formula of restitutio in integrum is not an absolute postulate, since it involves the subjective aspect that will always surround the compensation for harm (indemnización del daño), due to the different conceptions on how to implement the rule of full compensation, and more emphatically when it derives from the in re ipsa principle. The patrimonial quantification or liquidation of subjective moral harm (daño moral subjetivo) or pretium doloris, which is of a psychic, affective nature, by excluding its demonstration, entails the application of judicial discretion, under the internal control and limit of reasonableness and proportionality. It must be considered that the moral loss (perjuicio moral) and the alterations in the conditions of existence, in the administered party, are items of moral harm (daño moral) that are neither synonymous nor express the same harm (daño). The object of their compensation is independent through the figure of alterations in the c onditions of existence, which is erected on the scaffolding of abnormal modification given the normal course of the plaintiff's existence, while through subjective moral loss (perjuicio moral subjetivo), the suffering produced by the harmful act is compensated, a niche in which the material claim of moral harm (daño moral) resides. The compensation agreed upon as subjective moral harm (daño moral subjetivo) is jurisprudentially delimited by the appreciation that the judge perceives in the process of the sufferings that affect the victim's affective sphere. Determining the value of that injury poses another problem; its estimation is limited to what the evidence provides to the rationality and discretion of the judge (see Sala Primera: N°1, 14:50 hours of 10-1-96 and N° 17 of 14 hours 30 minutes of February 21, 1996), and to the limitations of the legal system; where the compensation for this concept is considered a compensation for pain, but not a reparation; that represents a sanction but not an exaction from the offender, to this effect it is worth citing: \"It is not, then, about quantifying the value of a subject's honor and dignity, since these are inappreciable goods, but about setting a monetary compensation for their injury, the only mechanism that the law can resort to, in order to repair, at least in part, their offense. It would not fit within such a philosophy to establish exorbitant compensations, as occurs in other legal systems, for that would produce the unjust enrichment of the offended party, through immoral profit from their own honor and dignity. Among the fundamental principles of law are those of reasonableness and proportionality, which have been recognized in our environment with the rank of constitutional principles (see in this regard, the rulings of the Sala Constitucional #1739 - 92 of 11:45 hours of July 1st and 3495-92 of 14:30 hours of November 19, both of 1992).
VI. ON THE MERITS OF THE MATTER : To begin with the grounds of grievance of the defendant, that is, that there is no connection between the factual basis of the judgment and the condemnation ordered against it, it is imperative to revisit said list of facts according to the judgment of the lower court (a quo), not without first noting that none of the parties challenges it, that is, all parties are aware that these facts are the fruit and consequence of the file before us and have the corresponding justification. Furthermore, this Court has conducted a study of them without finding any defect in them, as they are indeed the direct result of the file on which they are based. Thus, we have that Mrs. [Nombre62 001] on the eleventh of September, nineteen ninety-eight, was admitted to Hospital San Carlos for a viral meningitis condition, for which reason she was isolated in a room in the women's medical service; on the twelfth of September, nineteen ninety-eight, nursing staff gave her an injection in the spine and told her she had to be relaxed (within her previously prescribed medical treatment), after which they turned off the light in the room, causing her to become drowsy. In these circumstances of physical submission, the male nurse of said hospital, who was a public official in that nosocomium and was in charge of the patient, the defendant Mr. Nombre38651, without it being possible to specify the hours of that night, proceeded to enter the room where the plaintiff was, leaned over next to her bed, took her hand, and then opened her gown, and without the offended party being able to react due to the state she was in, touched her legs in a libidinous manner and inserted a finger into her vagina. This situation led the Court of the Second Judicial Circuit of Alajuela, Ciudad Quesada, in final judgment Nº 116-2000 of 16:30 hours of August twenty-eighth, two thousand, to declare Nombre38652 , the perpetrator and sole responsible for having committed the crime of aggravated sexual abuse (abusos deshonestos agravados) against [Nombre62 001], and to impose a sentence of four years in prison, a judgment that was confirmed by a criminal cassation ruling. In the relevant case, it is necessary to specify that when a person is subjected to medical treatment and especially when undergoing institutionalization, they are particularly limited and consequently the level of personal impact is much greater than under ordinary conditions in which they could fully exercise the defense of their protected legal rights. In this case, to make matters worse, Mrs. [Nombre62 001] had received a treatment that limited her possibilities of repelling any attack, according to the same factual scenario accepted by the parties, and which is even covered. Adding to the above is that the plaintiff suffered an impairment to one of the basic and fundamental legal rights, in the specific case of her sexual freedom. All of which determines, without further question in the judgment of this Chamber, that the aforementioned lady suffered a relevant subjective moral harm (daño moral subjetivo) (which is exactly what she is claiming) of significant magnitudes at the hands of Mr. Nombre38651, also a defendant here. This situation, although it was not fully addressed by the trial judge (but is also not the subject of the appeal), under the protection of article one hundred three of the Penal Code, the generation of a criminal act, which in this case is fully accredited, is sufficient grounds to establish civil liability, which although it was not discussed within the criminal process because the corresponding civil compensation action was not filed, this is not an obstacle to declaring it in this venue regarding the integration of norms necessary to resolve the specific case, all without prejudice to applying article one thousand forty-five of the Civil Code, at least with respect to the direct perpetrator of the act, who is the natural person sued here. Naturally, given the type of impact, the harm (daño) must be subjective moral (daño moral subjetivo) (without prejudice to other spheres), noting that to reach this conclusion, an in re ipsa inference must be made, logical, coherent, and necessary, of the impact she suffered in a situation of such serious submission and violation of her sexual freedom. Any normal person under similar conditions would feel feelings of emotional distress and contempt towards their sexuality in the terms indicated by the plaintiff in her complaint, such as feeling nervous, unable to sleep, feeling ashamed, miserable, and fearful of being left alone in any location where an ordinary person under normal conditions would feel safe. Although there is no certain basis to determine that these conditions are the consequent and necessary result of the facts accredited in this process, human inference regarding the level of impact the plaintiff could have had suggests they are a consequence thereof, unless proven otherwise, which did not occur in the case. In this way, there are sufficient grounds to deduce the liability of Mr. Nombre38651. We recall in this regard that there is no scientific, certain, and exact mechanism that allows establishing with certainty an impact of a subjective moral nature; therefore, the only mechanism is human presumption; without prejudice —of course— to the existence of some indicia directly aimed in that direction that allow the judge to conclude that their legal deductions are correctly oriented, as in the case under study. If that situation were not sufficient, it is also accredited by the opinion of the Section of Psychiatry and Forensic Psychology, Department of Legal Medicine, Organismo de Investigación Judicial (files 170 to 174 of the expediente), which confirm the liability without further questions against the aforementioned individual, under subjective liability for direct or personal conduct. Note how that party did not file any appeal, but as will be seen regarding the matter of the liability of the public entity, one of the grounds that originates it (though not the only one) is the derivative nature from public service in one of its agents, which necessarily leads to its analysis, as indeed occurs.\n\nNow, analyzing specifically the liability of the respondent appellant, as has been indicated, her liability is strict (objetiva), a consequence of the conduct deployed by the respondent Mr. Nombre38651 while the plaintiff was receiving the public medical assistance service from the Caja Costarricense del Seguro Social. It is worth citing what is indicated by Article 191 of the Ley General de la Administración Pública:\n\n\"Article 191.- The Administration shall repair all damage caused to the subjective rights of others by faults of its servants committed during the performance of the duties of the position or on the occasion thereof, using the opportunities or means it offers, even when for purposes or activities or acts foreign to said mission.\"\n\nIn this way and without further question, the grounds for the appeal filed by the Caja Costarricense del Seguro Social have no reason to be, besides the fact that from a formal standpoint it fails to meet the minimum requirements for stating the grievance. It must be rejected. It should be noted that liability in these cases is joint and several (solidaria) and unlimited, such that it is up to the plaintiff to establish against whom she defines (in the execution of judgment) the fulfillment of the obligation; without prejudice to the fact that internally the liability is proportional. Within such reasoning, naturally the public entity was obligated to establish actions for the recovery of any amount paid in excess, since public funds are involved where there is no liberality for their disposal. As far as the prevailing party is concerned, it does not matter who covers the debt, as long as it is paid to her in its entirety.\n\nRegarding the plaintiff's appeal, after a measured study of the case, it is the Chamber's criterion that it is correct in most of its arguments and consequences. Thus, in the opinion of this jurisdictional body and on the merit of the case file, the damage that has been caused to the plaintiff presents serious emotional effects, which evidently—as a human presumption—could affect her entire life in one way or another. While there is no clear and defined methodology to establish the quantum of subjective moral damage (daño moral subjetivo), the amount recognized in the judgment on the merits does not sufficiently repair, to a reasonable degree, the harm faced by the plaintiff. Such a situation necessarily obliges an adjustment of the amount and to set it at the sum of four million five hundred thousand colones, an economic item that allows some retribution without being abusive, exorbitant, or exaggerated, or in any way allowing an unjust enrichment for the counterparty. So that it allows, in some measure, to alleviate the suffering caused by the facts being heard. As has been indicated, said item is based on the legal interest affected and the harm that Mrs. [Nombre62 001] could face, besides the interest in generating equity in the specific case. Said amount would distance itself substantially from a symbolic compensation to allow an item more adjusted to reality, without under any aspect purporting to set an economic value on the dignity of persons, which as we already know has no price. Regarding the amount originally requested by the plaintiff of six million, if we consider that it would present the deficiencies of being exaggerated, while the amount recognized here does not present that defect, the grievance should be partially upheld.\n\nTHEREFORE:\n\nThe judgment is modified solely to recognize the sum of four million five hundred thousand colones to the plaintiff for the concept of subjective moral damage. In all other respects, the appealed judgment is confirmed.\n\nNombre12756\n\nRicardo A. Madrigal Jiménez Carlos Espinoza Salas\n\nExpediente: 02-000162-163-CA\nOrdinary Proceeding (Proceso ordinario) Contentious-Administrative\nPlaintiff: [Nombre62 001]\nRespondent: Caja Costarricense del Seguro Social and Nombre38651\n\n**VI. ON MORAL DAMAGES IN GENERAL:** The Administrative Litigation Jurisdiction is grounded in the right of the Constitution itself; to this end, Article 49 of our Political Constitution establishes this jurisdiction as part of the fundamental rights enjoyed by all inhabitants of the Republic, the purpose of which shall be to *\"(...) guarantee the legality of the administrative function of the State, its institutions, and any other public law entity. The deviation of power shall be grounds for challenging administrative acts. The law shall protect, at least, the subjective rights and legitimate interests of the administered.\"* With respect to the scope and objectives of this Jurisdiction, the Constitutional Chamber, in its vote 5686-95 at 15:30 on October 18, 1995, referring to vote 3905-94 at 15:57 on August 3, 1994, stated: *\"(...) it is appropriate to analyze whether the competence assigned by Article 49 of the Constitution to the administrative litigation courts can be delegated by law to other courts of different material competence, (...) This norm forms part of a concept -in its modern meaning- introduced into Costa Rican political law by the 1949 Constitution, which is the judicial oversight of public acts. (...) The concept was reinforced by the reform introduced through law #3124 of June 25, 1963, which also allowed challenges to discretionary acts of the administration, not contemplated within the original wording of Article 49, which limited the administrative litigation jurisdiction to overseeing the \\\"use of regulated powers.\\\" The purpose of the constituent legislator was to place in Costa Rican constitutional law a new and genuine subjective right in favor of citizens, guaranteeing their defense in case of overreach by the rulers.\"* Based on the aforementioned constitutional norm, Articles 1 and 2 of the Ley Reguladora de la Jurisdicción Contencioso Administrativa establish that this Court must *\"hear the claims deduced in relation to the legality of the acts and provisions of the Public Administration subject to Administrative Law,\"* and these articles likewise establish that *\"The grounds for illegality shall comprise any violation of the legal system, including lack of jurisdiction or competence, the breach of essential formalities, and the deviation of power\"*, it being the obligation of this Jurisdiction to hear everything related to *\"(...) the questions that arise regarding the patrimonial liability of the State and other entities of the Public Administration. (...)\"* It is thus understood that the Administrative Litigation Jurisdiction, in addition to hearing matters regarding the legality of the acts and contracts of the Public Administration, also hears matters regarding its liability, based on the provisions of Articles 9 and 41 of our Magna Carta, as they respectively provide that *\"The Government of the Republic is popular, representative, participatory, alternative, and* ***responsible*** *. It is exercised by the people and three distinct and independent Powers.\"* (Emphasis not in original), as well as that *\"Resorting to the laws, all must find reparation for the injuries or damages they have received in their person, property, or moral interests. (...).\"* To fulfill this end, we must not ignore the provisions of Article 190.1 of the Ley General de la Administración Pública, as it orders the Administration to answer for all damages caused by its ***legitimate or illegitimate, normal or abnormal operation***, establishing force majeure, the fault of the victim, or the act of a third party as the only exemptions from that liability. Thus, we find the judgment of the Constitutional Chamber No. 5207-2004 at 14:55 on May 18, 2004, in which it literally stated:\n\n“Our Political Constitution does not explicitly enshrine the principle of the patrimonial liability of public administrations for the unlawful injuries that, in the exercise of the administrative function, they cause to the administered. However, this principle is implicitly contained in the Law of the Constitution, and can be inferred from a systematic and contextual interpretation of several constitutional precepts, principles, and values. Indeed, Article 9, paragraph 1, of the Political Charter provides that 'The Government of the Republic is (...) ***responsible*** (...)', by which the liability of the major public entity or State and its various organs is taken for granted (...) Article 11, for its part, establishes in its first paragraph the '(...) criminal liability (...)' of public officials, and the second paragraph refers to the '(...) personal liability for officials in the performance of their duties (...)'. Article 34 of the Political Constitution protects 'acquired patrimonial rights' and 'consolidated legal situations', which can only be effectively and truly protected with a broad-spectrum system of administrative liability, without immune or exempt zones, when they are violated by public administrations in the course of their duties or public performance. Article 41 ibidem establishes that 'Resorting to the laws, all must find reparation for the injuries or damages they have received in their person, property, or moral interests (...)', this precept imposes the duty on the author and responsible party for the damage to compensate the unlawful injuries actually suffered by the administered as a consequence of the exercise of the administrative function through ***positive acts by action or negative acts by omission*** of public entities, thereby becoming the constitutional cornerstone for the legislative development of a ***system of objective and direct liability in which compensation does not depend on the moral and subjective reproach of the public official's conduct for intent or negligence, but solely and exclusively for having been inflicted upon or received, effectively,*** '(…) injuries or damages (…) in their person, property, or moral interests (…)', that is, an unlawful injury that they have no duty to bear and, consequently, must be compensated. (...) ***the fundamental text recognizes (...) that the special sacrifices or singular burdens that the administered has no duty to bear or tolerate, even if they result from a legal activity (...), must be compensated.*** Article 49, paragraph 1, of the Political Constitution, inasmuch as it implicitly recognizes legal personality and, consequently, the possibility of suing public entities before judicial courts when they fail to comply with their obligations, constitutes a clear foundation of administrative liability. For its part, the final paragraph of the aforementioned Article 49 provides that 'The law shall protect, at least, the subjective rights and legitimate interests of the administered,' and one of the main forms of guaranteeing these is an objective, direct, broad, and complete regime of administrative liability. (...) The principle of administrative liability of public entities and their officials is complemented by the constitutional enshrinement of the principle of equality in bearing public burdens (Articles 18 and 33), which ***prevents imposing on the administered a singular or special burden or sacrifice they have no duty to bear***, and the principle of social solidarity (Article 74), according to which, if the administrative function is exercised and deployed for the benefit of the community, the community must bear the unlawful injuries caused to one or more administered individuals and unjustly borne by them. Finally, it is necessary to consider that ***the Political Constitution includes an unnamed or atypical fundamental right, which is that of the administered to the proper functioning of public services***, clearly inferred from the relationship of articles, interpreted *a contrario sensu*, 140, subsection 8, 139, subsection 4, and 191 of the Fundamental Law, as they respectively encompass the deontological parameters of the administrative function such as 'proper functioning of administrative services and dependencies,' 'proper running of the Government,' and 'efficiency of the administration.' This fundamental right to the proper functioning of public services imposes on public entities the duty to act, in the exercise of their competencies and the provision of public services, in an efficient and effective manner and, of course, the correlative obligation to repair the damages caused when that constitutional guarantee is violated. In this way, it is evident that the original constituent implicitly included the principle of the liability of public administrations, which, as such, must serve all public powers and legal operators as a parameter to interpret, apply, integrate, and delimit the entire legal system. Under this understanding, a fundamental corollary of the constitutional principle of administrative liability is ***the impossibility for the ordinary legislator to exempt or exonerate any public entity from liability for an unlawful injury caused to the patrimonial and extra-patrimonial sphere of the administered by its normal or abnormal operation or its legal or illegal conduct.***” (the emphases do not belong to the original).\n\nAmong the prerequisites for administrative liability to operate, imposed by both doctrine and legislation, are the existence of a compensable injury (lesión resarcible), the characteristic of the damage being effective (efectivo), assessable (evaluable), and individualizable (individualizable), the imputability (imputabilidad) of the Administration, and the causal link (nexo de causalidad) between the act or omission and the damage. The first requirement for the right to compensation to arise is that an injury has been produced in any of the assets and rights, which is effective, assessable in economic terms, and individualized in relation to a person or group of persons (González Pérez, Name304, Responsabilidad Patrimonial de las Administraciones Públicas, Name38644. Civitas, Madrid, 1996, p. 228.) according to the provisions of Article one hundred ninety-six of the same regulatory body; the injury must be unlawful (antijurídica), meaning the subject suffering it has no legal duty to bear it. As long as no causes of justification exist that legitimize the harm as such, that injury shall be unlawful. These causes of justification must be explicit and must always consist of a title that determines or imposes the contemplated harm as legally intended (García de Enterría and another. Curso de Derecho Administrativo, part II, 4th ed., Ed. Civitas, Madrid, 1993, p. 395). National jurisprudence has established the following in this regard:\n\n(...) The fundamental concepts on which the theory of the objective liability of the Administration is based are as follows: First, we have the concept of compensable injury or damage. If we disregard the determination of the specific conduct of the server to establish its possible illegality, it is clear that the guiding element for this principle is the guarantee of the assets of private individuals that have been affected by administrative action. The injury or damage that serves as the foundation for the indemnity institute must be unlawful, meaning its holder has no objective duty to bear it, that is, that no causes of justification exist that legitimize the production of the harm in the administered party's patrimonial sphere. Causes of justification which, needless to say, must be contained in the legal system itself, so that their application is a typical consequence of that regulatory set (e.g., tax collection, preservation of morals and good customs, Article 195 of the Ley General). Moreover, that damage must display the characteristics of being effective, assessable in economic terms, and individualizable. Thus, by effective, we understand damage that is certain, meaning it may be current or future (if this can be verified through the rules of science or technique, or the elementary principles of justice, logic, or convenience - Article 16 of the Ley General de la Administración Pública) and not one that is merely possible or eventual; while its estimation in monetary terms allows, in some way, the amount subject to compensation to be established with the greatest equity. The latter is particularly relevant in the case of moral damages, as we shall see below. Regarding the concept of individualizable, it indicates that it must be a concrete damage, directly related to the claimant's assets and that, furthermore, exceeds those that can be considered common burdens of social life. So that it may be either a single person or a group of persons that, however, does not reach the generality of the inhabitants or broad sectors of the population. The point is that all must be in a legal condition that makes the affecting of their patrimonial spheres injurious to the Legal System.” (First Chamber of the Supreme Court of Justice, vote No. 112 at 14:25 on November 25, 1994).\n\nEach of these characteristics of the damage constitutes an essential element for State liability to operate. Hence, the absence of any of them rules out the existence of a compensable injury. The compensable injury must be imputable to the Administration, that is, it must be possible to legally attribute that damage to it based on the relationship existing between the Administration and the damage. The administrative ownership of the activity or service within the framework of which the damage was produced would be sufficient to justify its imputation to the Administration (Irribaren Blanco, Miguel, “La responsabilidad patrimonial de la Administración” in Estudios de Derecho, electronic publication). Taking these elements into account, as well as the provisions of the aforementioned law, the imputation of the damage may occur due to: a) Abnormal functioning of the service (funcionamiento anormal del servicio), when the damages are caused by fault or illegality, whether they are attributable to an identified agent integrated into the administrative organization or are anonymous damages attributable to the administrative organization in the abstract (because the service functions poorly or defectively – fault *in committendo* – or if it has not functioned – fault *in ommittendo*), or by b) Normal functioning of the service (funcionamiento normal del servicio), which are eventual or incidental damages caused by legal actions of the Administration, which must thus bear both the benefits and the harms of its actions. Added to the foregoing is imputation, which is determined by the causal relationship between the administrative action and omission and the damage; this causal link exists between the failure to perform a certain conduct and the harmful result, making the idea of adequate causality fully applicable. It has been said that a causal relationship exists on the part of one who, having a duty to and being able to perform or refrain from performing an act that would have prevented the damage, does not perform it or refrains from performing it (Pérez Vargas, Víctor, Derecho Privado, 2nd ed., San José, 1991, p. 402.). The causal relationship is excluded, and with it the liability, as previously noted, in the following cases: a) Force majeure: This consists of a known fact or event, external to the direct and immediate cause of the damage, and irresistible.\n\nThe essence of force majeure lies, therefore, both in the externality of the event with respect to the property or assets that are damaged and in the impossibility of avoiding or resisting its occurrence. b) Act of a third party: The attribution of the harmful act to a third party, distinct from the Administration, excludes administrative liability; however, it has been considered that the act of a third party does not exonerate the Administration when it has in any case breached a duty of supervision over the producer's activity. c) Fault or negligence of the victim: This is a concept that French jurisprudence borrowed from Private Law as a breach by the victim of the general duty of prudence and diligence proper to a reasonable person. In the production of the damage, the cause is the victim themselves, which exempts the Administration from liability. Derived from this broad detail regarding the liability of the State and its entities or organs for normal or abnormal functioning, particularly the latter, it is developed in Articles 199 and 201 of the General Public Administration Act and the issue is necessarily linked with the causation of damage, so it is pertinent to cite once again what was stated by the same First Chamber in relation to the damages that may be subject to redress in the contentious-administrative venue; to that end, consult the Opinion of the First Chamber, ut cit, No. 112 of 14 hours 15 minutes of July 15, 1992, which, among other things, indicated: “IV. Damage constitutes one of the preconditions of non-contractual civil liability, since the duty to redress is only configured if there has been a harmful illicit act that injures a legally relevant interest, susceptible to being protected by the legal system. Damage, in a legal sense, constitutes any impairment, loss, or detriment to the patrimonial or extra-patrimonial legal sphere of the person (party suffering damage), which causes the deprivation of a legal good, with respect to which its preservation was objectively expectable had the harmful act not occurred. Under this reasoning, there is no civil liability if no damage occurs, just as there is no damage if there is no injured party. On the other hand, only damage that is proven is compensable (reality or existence), this being a question of fact reserved for the prudent discretion of the judge. In sum, damage constitutes the detrimental gap for the victim, resulting from comparing the situation prior to the illicit act with that subsequent to it. V.- On many occasions, the expressions \"damage\" and \"loss of profit\" are used indiscriminately. It is necessary to clarify and distinguish both concepts. Damage constitutes the loss inflicted on the injured party (damnum emergens), while loss of profit is formed by the frustrated or ceased gain or profit (lucro cessans), which was reasonably and probably expectable if the illicit act had not occurred. VI.- Not any damage gives rise to the obligation to redress. For that purpose, the following characteristics must basically converge to be a \"compensable damage\": A) It must be certain; real and effective, and not merely eventual or hypothetical, it cannot be based on supposed or conjectural realizations. Damage does not lose this characteristic if its quantification turns out to be uncertain, undetermined, or difficult to assess or prove; nor should certainty be confused with currentness, as the repair of certain but future damage is admissible; likewise, future damage should not be confused with lost earnings or loss of profit, since the former refers to that which arises as a necessary consequence derived from the causal or generating event of the damage, that is, its repercussions are not projected when the process is initiated. Regarding the magnitude or amount (seriousness) of the damage, this constitutes an extreme of sole subjective concern to the injured party, however, the law cannot deal with claims based on insignificant damages, derived from excessive susceptibility. B) There must be an injury to an interest that is legally relevant and deserving of protection. Thus, there can be a direct injured party and an indirect one: the first is the victim of the harmful act, and the second will be the successors of the victim. C) It must be caused by a third party, and be subsisting, that is, if it has been repaired by the responsible party or a third party (insurer) it is insubsisting. D) There must be a causal relationship between the illicit act and the damage. VII.- Within the classes of damages, we find in the first place material damage and bodily injury, the first being that which affects the things or material goods that make up the person's assets, while the second affects bodily and physical integrity. In doctrine, under the generic denomination of material or patrimonial damage, the specific ones of bodily injury and material damage, in the strict sense, are usually included. The second seems to be the most accurate expression, since bodily injury usually affects the patrimonial interests of the injured party (payment of medical treatment, hospitalization expenses, medications, etc.), frustrated earnings if the damage has incapacitated them from carrying out their usual occupations (loss of profit), etc. This distinction originated in Roman Law, as a distinction was made between damage inflicted on things directly (damnum) and that which injured the physical personality of the individual (injuria). In patrimonial damage, the impairment generated turns out to be economically assessable….” In accordance with the above, it is not sufficient to invoke damage; rather, its existence and the causal nexus that links it to the conduct or omission of the responsible entity must be convincingly demonstrated. A fundamental rule of liability law is that which states \"without damage there is no liability,\" but one must not capitulate to the fact that on occasions or in damage-producing events, liability is not declared (e.g., exonerative causes or those not attributable to the Administration). The other rule of the liability system is simple: the repair of the damage must leave the person unharmed, that is, achieving the legal situation prior to the damage, as if it had not occurred, or at least in the situation closest to that which existed before its occurrence. In other words, the redress of the prejudice must correspond directly with the magnitude of the damage caused but cannot exceed that limit. Regarding non-pecuniary damage (daño moral), the First Chamber of the Supreme Court of Justice, in judgment No. 112-92, on this subject, stated:\n\n\" .. it is verified when the sphere of extra-patrimonial interest of the individual is injured, however, as its violation can generate patrimonial consequences, it is appropriate to distinguish between subjective \"pure\" or emotional non-pecuniary damage, and objective or \"objectified\" non-pecuniary damage. Subjective non-pecuniary damage is produced when an extra-patrimonial right has been injured, without repercussion on the assets, normally involving an unjust disturbance of the individual's emotional conditions {displeasures, discouragement, despair, loss of satisfaction with living, etc., e.g., the offense against honor, dignity, intimacy, the so-called loss of enjoyment of life, affliction for the death of a relative}, thus one refers to the social part and the other to the affective part of the personal sphere.\"\n\nRegarding the proof of non-pecuniary damage, in that same judgment, the Chamber established:\n\n\" Regarding the proof of non-pecuniary damage, the principle is the following: its existence and severity must be proven, a burden that corresponds to the victim, however, it has been admitted that such proof can be achieved through human presumptions inferred from indicia, since the unlawful generating event reveals the non-pecuniary damage, for when the psyche, health, physical integrity, honor, intimacy, etc. are damaged, it is easy to infer the damage, which is why it is said that the proof of non-pecuniary damage exists \"in re ipsa.\" On this matter, this Chamber has stated that regarding non-pecuniary damage \"... it is sufficient, on some occasions, with the realization of the culpable act for the damage to arise from it, according to the prudent assessment of the trial judges, when it is possible for them to infer the damage based on the proof of indicia (Judgment No. 114 of 16 hours of November 2, 1979).\"\n\nThe damage must be effective, assessable, and individualizable within the extra-patrimonial sphere of the victim, insofar as it involved an indefinite suspensive and impeditive limitation of the rights of enjoyment. Regarding the quantum, the formula of restitutio in integrum is not an absolute postulate, because the subjective aspect that will always surround the compensation for damage is involved, due to the different conceptions on how to materialize the rule of full compensation, and with greater emphasis when it derives from the in re ipsa principle. The patrimonial quantification or liquidation of subjective non-pecuniary damage or pretium doloris, which is of a psychic, affective character, when its demonstration is dispensed with, entails the application of judicial discretion, under the internal control and limit of reasonableness and proportionality. It must be considered that non-pecuniary prejudice and the alterations in the conditions of existence, in the administered party, are items of non-pecuniary damage that are neither synonymous nor express the same damage. The object of their compensation is independent through the figure of alterations in the conditions of existence, which stands under the scaffolding of abnormal modification given the normal course of the plaintiff's existence, whereas through subjective non-pecuniary prejudice, the suffering produced by the harmful act is compensated, a niche in which the material claim for non-pecuniary damage resides. The compensation agreed upon as subjective non-pecuniary damage is delimited jurisprudentially by the appreciation that the judge perceives in the process of the sufferings that affect the victim's affective sphere. Determining the value of that injury poses another problem; its estimation is limited to what the evidence provides to the rationality and discretion of the judge (see First Chamber: No. 1, 14:50 hours of 10-1-96 and No. 17 of 14 hours 30 minutes of February 21, 1996), and to the limitations of the legal system; where the compensation for this concept is considered a compensation for pain, but not a redress; which represents a sanction but not an exaction from the offender, to this effect it is appropriate to cite: \"It is not a matter, then, of quantifying the value of a subject's honor and dignity, since these are priceless goods, but of fixing a monetary compensation for their injury, the only mechanism that the law can resort to, in order to thus repair, at least in part, their offense. It would not fit within such a philosophy to establish exorbitant compensations, as happens in other legal systems, since that would produce the unjust enrichment of the offended party, through immoral profiting with one's own honor and dignity. Among the fundamental principles of law are those of reasonableness and proportionality, which have been recognized in our system with the rank of constitutional principles (see in this regard, the resolutions of the Constitutional Chamber #1739-92 of 11:45 hours of July first and 3495-92 of 14:30 hours of November nineteenth, both of 1992).\n\nVI. ON THE MERITS OF THE CASE: To begin with the grounds of grievance of the defendant, that is, that there is no connection between the facts underlying the judgment and the conviction ordered against it, it is imperative to revisit said list of facts according to the lower court's judgment, not without first warning that none of the parties challenges it, meaning that all parties are aware that said facts are the result and consequence of the case file before us and present the corresponding foundation. Moreover, this Tribunal has conducted a study of the same without finding any defect therein, as they are effectively the direct result of the case file on which they rest. Thus, we have that Mrs. [Name62 001] on the eleventh of September nineteen ninety-eight, was admitted to the Hospital San Carlos for a viral meningitis condition, which is why they isolated her in a room of the women's medicine service; on the twelfth of September nineteen ninety-eight, nursing staff gave her an injection in her spine and indicated that she needed to be relaxed (within her previously prescribed medical treatment), after which they turned off the light in the room, causing her to become drowsy. In these circumstances of physical submission, the nurse of said hospital who was a public official in that nosocomium and was in charge of the patient, the defendant Mr. Name53743, without it being possible to specify the hour of that night proceeded to enter the room where the plaintiff was, leaned next to her bed, took her hand and immediately opened her gown and, without the offended party being able to react due to the state she was in, touched her legs in a libidinous manner and inserted a finger into her vagina. Said situation determined that the Tribunal of the Second Judicial Circuit of Alajuela, Ciudad Quesada, in final judgment No. 116-2000 of 16:30 hours of August twenty-eight, two thousand, declared Name38652, author and sole responsible for having committed the crime of aggravated sexual abuse against [Name62 001], and imposed a sentence of four years in prison, a judgment confirmed by criminal cassation ruling. Regarding what corresponds to the case, it is necessary to specify that when a person is subjected to medical treatment and especially when they suffer institutionalization, they are especially limited and consequently the level of personal impact is much greater than under ordinary conditions in which they could fully exercise the defense of their protected legal interests. In this case, to make matters worse, Mrs. [Name62 001] had received a treatment that limited her possibilities of repelling any attack, according to the same factual framework accepted by the parties, and which is even covered. Adding to the foregoing, the plaintiff suffered an impairment to one of the basic and fundamental legal interests, in the specific case of her sexual freedom. All of which determines that without major questions, in the judgment of this Chamber, the referred lady suffered a relevant subjective non-pecuniary impact (which is exactly what she is claiming) of significant magnitude from Mr. Name53743, also a defendant here. This situation, although not fully addressed by the trial judge (but is also not the object of the appeal), under numeral one hundred three of the Penal Code, the generation of a criminal act, which in this case is fully proven, is sufficient grounds to establish civil liability, which, although not discussed within the criminal process as the corresponding civil remedial action was not filed, this is not an obstacle to declaring it in this venue as to the integration of norms that is necessary to resolve the specific case, all without prejudice to applying numeral one thousand forty-five of the Civil Code, at least with respect to the direct author of the act who is the individual defendant here. Naturally, given the type of impact, the damage must be subjective non-pecuniary (without prejudice to other spheres), noting that to reach that conclusion, an in re ipsa inference must be made, logical, coherent, and necessary from the impact she suffered in a situation of such serious submission and violation of her sexual freedom. Any normal person in similar conditions would feel feelings of emotional impact, of contempt towards their sexuality in the terms indicated by the plaintiff in her claim, such as feeling nervous, unable to sleep, feeling ashamed, unhappy, and fear of being alone in any location where an ordinary person under normal conditions would feel safe. Although there are no certain bases to determine that those conditions are the consistent and necessary consequence of the facts proven in this process, human inference given the level of impact the plaintiff could have had leads one to think they are a consequence thereof, unless the contrary is proven, which in this case did not occur. In this way, there are sufficient grounds to deduce the liability of Mr. Name53743. We recall in this regard that there is no scientific, certain, and exact mechanism that allows one to somehow establish with certainty a subjective non-pecuniary impact, so the only mechanism is human presumption; without prejudice – of course – to the existence of some indicia directly aimed in that sense that allow the judge to reach the conclusion that their legal deductions are correctly oriented, as in the case under study. If that situation were not sufficient, it is also proven by the opinion of the Forensic Psychiatry and Psychology Section, Department of Legal Medicine, Judicial Investigation Organization (folios 170 to 174 of the case file), which come to confirm the liability without major questionings against the referred gentleman, under subjective liability for direct or personal conduct. Note how that party did not file any appeal, but as will be seen regarding the liability of the public entity, one of the reasons that originates it (but not the only one) is the character derived from public service in one of its agents, which brings as a necessary consequence its analysis, as indeed occurs. Now, analyzing specifically the liability of the appealing defendant, as indicated, its liability is objective, a consequence of the conduct displayed by the defendant Mr. Name53743 when the plaintiff was receiving the public service of medical assistance from the Caja Costarricense del Seguro Social. It is appropriate to bring up what is stated in numeral 191 of the General Public Administration Act:\n\n\"Article 191.- The Administration must repair all damage caused to the subjective rights of others by faults of its servants committed during the performance of the duties of the position or on the occasion thereof, using the opportunities or means it offers, even if for purposes or activities or acts extraneous to said mission.\"\n\nIn that way and without major questionings, the ground of the appeal filed by the Caja Costarricense del Seguro Social lacks reason for being, besides the fact that from the formal standpoint it fails to meet the minimum requirements for stating the grievance. It must be rejected. It should be noted that liability in these cases is joint and unlimited, in such a way that it is for the plaintiff to establish against whom the fulfillment of the obligation is directed (in execution of judgment); without prejudice to the fact that internally the liability is proportional. Within such reasoning, naturally the public entity was obliged to establish the recovery actions for any amount paid in excess, as these are public funds where there is no liberality for their disposal. As for the victorious party, it does not matter who covers the debt, as long as it is paid in its entirety. Regarding the plaintiff's appeal, after a measured study of the case, it is the Chamber's criterion that it is correct in most of its arguments and consequences.\n\nThus, in the opinion of this jurisdictional body and on the merits of the case file, the harm caused to the plaintiff presents severe emotional impacts, which evidently—as a human presumption—could affect her entire life in one way or another. Although there is no clear and defined methodology to establish the quantum of subjective moral damages for emotional harm, the amount recognized in the judgment on the merits does not provide reasonable reparation for the impact faced by the plaintiff. This situation necessarily requires an adjustment of the amount, setting it at the sum of four million five hundred thousand colones, an economic item that allows for some form of compensation without being abusive, exorbitant, or exaggerated, or in any way generating unjust enrichment for the counterparty. In a manner that allows, to some extent, for the alleviation of the suffering caused by the facts being heard. As has been indicated, this item is based on the legal interest affected and the impacts that Mrs. [Nombre62 001] could face, in addition to the interest in generating equity in the specific case. This amount would move substantially away from symbolic compensation to allow for an amount more adjusted to reality, without, under any aspect, attempting to set an economic price on the dignity of persons, which, as we know, is priceless. As for the amount originally requested by the plaintiff of six million colones, if we consider that it would present the deficiencies of being exaggerated, while the amount recognized here does not present that defect, the grievance must be partially upheld.”\n\nTo fulfill that purpose, one must not overlook what is stated in article 190.1 of the Ley General de la Administración Pública, as it orders the Administration to answer for all damages caused by its legitimate or illegitimate, normal or abnormal functioning, establishing as the only exemptions from that responsibility the intervention of a force majeure, the fault of the victim, or the act of a third party.\n\nThus, we find the ruling of the Sala Constitucional. No. 5207-2004 of 14 hours and 55 minutes of May 18, 2004, in which it literally stated:\n\n\"Our Political Constitution does not explicitly enshrine the principle of the patrimonial responsibility of public administrations for the unlawful injuries that, in the exercise of the administrative function, they cause to citizens. However, this principle is implicitly contained in the Law of the Constitution, and it can be inferred from a systematic and contextual interpretation of several constitutional precepts, principles, and values. Indeed, Article 9, paragraph 1, of the Political Charter provides that 'The Government of the Republic is (...) responsible (...)', thereby taking for granted the responsibility of the major public entity or State and its various bodies (...) Article 11, for its part, establishes in its first paragraph the '(...) criminal responsibility (...)' of public officials and the second paragraph refers us to the '(...) personal responsibility for officials in the fulfillment of their duties (...)'. Article 34 of the Political Constitution protects 'acquired patrimonial rights' and 'consolidated legal situations', which can only be, effectively and truly, protected with a broad-spectrum system of administrative responsibility without immune or exempt zones when they are violated by public administrations in the deployment of their public sphere or performance. Article 41 ibidem establishes that 'Occurring to the laws, everyone must find reparation for the injuries or damages they have received in their person, property, or moral interests (...)', this precept imposes the duty on the author and responsible party for the damage to compensate for the unlawful injuries effectively suffered by the citizens as a consequence of the exercise of the administrative function through positive conduct by action or negative conduct by omission of public entities, with which it becomes the constitutional cornerstone for the legislative development of a system of objective and direct responsibility in which compensation does not depend on the moral and subjective reproach of the conduct of the public official for intent or fault, but, solely and exclusively, for having effectively inflicted or received '(...) injuries or damages (...) in their person, property, or moral interests (...)', that is, an unlawful injury that they do not have the duty to bear and, consequently, must be compensated. (...) it is recognized (...) by the fundamental text that special sacrifices or singular burdens that the citizen does not have the duty to bear or tolerate, even if they arise from a lawful activity (...) must be compensated. Article 49, paragraph 1, of the Political Constitution insofar as it implicitly recognizes legal personality and, consequently, the possibility of suing public entities in judicial courts, when they fail to comply with their obligations, constitutes a clear foundation of administrative responsibility. For its part, the final paragraph of the aforementioned Article 49 provides that 'The law shall protect, at least, the subjective rights and legitimate interests of the citizens', one of the main forms of guarantee of these being an objective, direct, broad, and comprehensive system of administrative responsibility. (...) The principle of administrative responsibility of public entities and their officials is complemented by the constitutional enshrinement of the principle of equality in bearing public burdens (Articles 18 and 33), which prevents imposing on citizens a singular or special burden or sacrifice that they do not have the duty to bear, and the principle of social solidarity (Article 74), according to which if the administrative function is exercised and deployed for the benefit of the community, it is the community that must bear the unlawful injuries caused to one or several citizens and unjustly borne by them. Finally, it is necessary to take into consideration that the Political Constitution enshrines an unnamed or atypical fundamental right, which is that of the citizens to the proper functioning of public services, which is clearly inferred from the relationship of articles, interpreted, a contrario sensu, 140, subsection 8, 139, subsection 4, and 191 of the fundamental Law insofar as they establish, respectively, the deontological parameters of the administrative function such as the 'proper functioning of administrative services and dependencies', 'good governance', and 'efficiency of the administration'. This fundamental right to the proper functioning of public services imposes on public entities the duty to act in the exercise of their powers and the provision of public services in an efficient and effective manner and, of course, the correlative obligation to repair the damages and losses caused when that constitutional guarantee is violated. In this way, it becomes evident that the original constituent implicitly enshrined the principle of the responsibility of public administrations, which, as such, must serve all public powers and operators of Law as a parameter for interpreting, applying, integrating, and delimiting the entire legal system. Under this understanding, a fundamental corollary of the constitutional principle of administrative responsibility is the impossibility for the ordinary legislator to exempt or exonerate any public entity from responsibility for any unlawful injury caused to the patrimonial and extra-patrimonial sphere of citizens by its normal or abnormal functioning or its lawful or unlawful conduct.\" (the emphases are not part of the original).\n\nAmong the prerequisites for administrative responsibility to operate, imposed by both doctrine and legislation itself, are the existence of a compensable injury (lesión resarcible), the characteristic of the damage as being effective, assessable, and individualizable, the imputability to the Administration, and the causal link between the act or omission and the damage. The first requirement for the right to compensation to arise is that an injury must have occurred to any of the goods and rights, which must be effective, economically assessable, and individualized in relation to a person or group of persons (González Pérez, Nombre304, Responsabilidad Patrimonial de las Administraciones Públicas, Nombre38644. Civitas, Madrid, 1996, p. 228.) as regulated in article one hundred ninety-six of the same normative body; with the injury being unlawful, meaning the subject who suffers it does not have the legal duty to bear it. As long as there are no justifying causes that legitimize the harm as such, said injury will be unlawful. These justifying causes must be express and must always consist of a title that determines or imposes the contemplated harm as legally desired (García de Enterría and another. Curso de Derecho Administrativo, part II, 4th ed., Ed. Civitas, Madrid, 1993, p. 395). In this regard, national jurisprudence has established:\n\n(...) The fundamental concepts on which the theory of the objective responsibility of the Administration is based will be the following: In first place, we have the concept of compensable injury or damage. If we stop considering the determination of the specific conduct of the server to establish its possible illegality, it is clear that the guiding element for this principle will be the guarantee of the patrimonies of individuals, which have been affected by administrative action. The injury or damage that serves as the foundation for the compensatory institute must be unlawful, meaning that its holder does not have the objective duty to bear it, that is, there are no justifying causes that legitimize the production of the harm in the citizen's patrimonial sphere. Justifying causes which, needless to say, must be established in the legal system itself, so that their application is a typical consequence of that normative set (e.g., tax collection, preservation of morals and good customs, Article 195 of the Ley General de la Administración Pública). Moreover, this damage must present the characteristics of being effective, economically assessable, and individualizable. Such that, by effective, we understand a damage that is certain, which implies it may be current or future (if this is verifiable through the rules of science or technique, or the elementary principles of justice, logic, or convenience -Article 16 of the Ley General de la Administración Pública-) and not one that is merely eventual or simply possible; while its assessment in monetary terms allows, in some way, to fix with the greatest equity the amount subject to compensation. The latter is especially relevant in the case of moral damage, as we will see later. Regarding the concept of individualizable, it is intended to indicate that it must be a concrete damage, which has a direct relationship with the plaintiff's patrimony and which also exceeds those that can be considered common burdens of social life. Such that it can be a single person or a group of them that, however, does not reach the generality of the inhabitants or broad sectors of the population. It is a matter of everyone being in a legal condition that renders the affectation of their patrimonial spheres injurious to the Legal System.\" (Sala Primera de la Corte Suprema de Justicia, ruling No. 112 of 14:25 of November 25, 1994).\n\nEach of these characteristics of the damage constitutes essential elements for the State's responsibility to operate. Hence, the absence of any of them rules out the existence of a compensable injury. The compensable injury must be imputable to the Administration, that is, it must be possible to legally attribute that damage based on the relationship existing between the Administration and the damage. The administrative ownership of the activity or service within whose framework the damage occurred would be sufficient to justify its imputation to the Administration (Irribaren Blanco, Miguel, “La responsabilidad patrimonial de la Administración” in Estudios de Derecho, electronic publication). Taking these elements into account, as well as what is stipulated in the aforementioned law, the imputation of the damage may occur due to: a) Abnormal functioning of the service, when the damages are caused by fault or illegality, whether they are attributable to an identified agent, integrated into the administrative organization, or if they are anonymous damages, attributable to the administrative organization in the abstract (because the service functions poorly or defectively –culpa in committendo– or if it has not functioned –culpa in ommittendo), or by, b) Normal functioning of the service, which are eventual or incidental damages caused by lawful actions of the Administration, which must thus bear both the benefits and the detriments of its action.\n\nTo the above, it adds imputation, which is determined by the causal relationship, between the administrative action and omission and the damage. This causal link exists between the failure to perform a certain conduct and the harmful result, making the idea of adequate causation fully applicable. It has been said that the causal relationship exists on the part of whoever, having the duty and ability to perform or refrain from performing an act that would have prevented the damage, does not perform it or refrains from performing it (Pérez Vargas, Víctor, Derecho Privado, 2nd ed., San José, 1991, p. 402.). The causal relationship is excluded, and with it responsibility, as previously noted, in the following cases: a) Force majeure: This consists of a known event or occurrence, external to the direct and immediate cause of the damage, and irresistible. The essence of force majeure lies, therefore, both in the externality of the event with respect to the damaged asset or patrimony and in the impossibility of avoiding or resisting its occurrence. b) Act of a third party: The attribution of the harmful act to a third party, distinct from the Administration, excludes administrative responsibility; however, it has been considered that the act of a third party does not exonerate the Administration when it has, in any case, breached a duty of vigilance over the producer's activity. c) Fault or negligence of the victim: This is a concept that French jurisprudence borrowed from Private Law as a failure by the victim to observe the general obligation of prudence and diligence proper to a reasonable person. In the production of the damage, the victim is the cause, thereby exempting the Administration from responsibility.\n\nDerived from this broad detail regarding the responsibility of the State and its entities or bodies for normal or abnormal functioning, particularly the latter, it is developed in Articles 199 and 201 of the Ley General de la Administración Pública, and the matter is necessarily linked to the causing of damage, making it pertinent to cite once again what was stated by the same Sala Primera in relation to the damages that can be subject to compensation in the Contentious-Administrative Court. To this end, consult the Ruling of the Sala Primera, ut cit, No. 112 of 14 hours 15 minutes of July 15, 1992, which, among other things, indicated: \"IV. The damage constitutes one of the prerequisites of extra-contractual civil liability, insofar as the duty to compensate is only configured if there has been a harmful illicit act that injures a legally relevant interest, susceptible to being protected by the legal system. Damage, in a legal sense, constitutes any impairment, loss, or detriment to the victim's (damnificado) patrimonial or extra-patrimonial legal sphere, which causes the privation of a legal good, regarding which its conservation was objectively expected had the harmful event not occurred. Under this theory, there is no civil liability if there is no damage, just as there is no damage if there is no victim. On the other hand, only damage that is proven (reality or existence) is compensable, this being a question of fact reserved to the prudent discretion of the judge. In summary, the damage constitutes the harmful breach for the victim, resulting from comparing the situation prior to the illicit act with that subsequent to it. V.- On many occasions, the expressions 'damages' (daños) and 'losses' (perjuicios) are used indiscriminately. It is necessary to specify and distinguish both concepts. Damage constitutes the loss inflicted on the victim (damnum emergens), while loss is made up of the frustrated or lost earnings or profit (lucro cessans), which was reasonably and probably expected if the illicit act had not occurred. VI.- Not any damage gives rise to the obligation to compensate. For this purpose, the following characteristics must generally converge to be a 'compensable damage' (daño resarcible): A) It must be certain; real and effective, and not merely eventual or hypothetical; it cannot be based on supposed or conjectural assumptions. The damage does not lose this characteristic if its quantification turns out to be uncertain, undetermined, or difficult to assess or prove; nor should certainty be confused with present existence, as reparation of certain but future damage is admissible; likewise, future damage should not be confused with lost profit or loss, as the former refers to that which arises as a necessary consequence derived from the causal or generating act of the damage, that is, its repercussions are not projected when the process is initiated. Regarding the magnitude or amount (seriousness) of the damage, this constitutes a matter of unique subjective concern for the victim, however, the law cannot deal with claims based on insignificant damages, derived from excessive susceptibility. B) There must be an injury to a legally relevant interest deserving of protection. Thus, there may be a direct victim and an indirect one: the first is the victim of the harmful act, and the second will be the victim's successors. C) It must be caused by a third party, and subsisting, that is, if it has been repaired by the responsible party or a third party (insurer), it becomes un-subsisting. D) There must be a causal relationship between the illicit act and the damage. VII.- Within the classes of damages, in the first place are material damage and bodily harm, the former being that which affects the material things or goods that make up a person's patrimony, while the latter affects bodily and physical integrity. In legal doctrine, under the generic denomination of material or patrimonial damage, the specific ones of bodily harm and material damage, in the strict sense, are usually included. The second seems to be the most apt expression, as bodily harm often affects the victim's patrimonial interests (payment of medical treatment, hospitalization expenses, medications, etc.), frustrated earnings if the damage has incapacitated them from performing their usual occupations (losses), etc. This distinction originated in Roman Law, where a distinction was made between damage inflicted directly on things (damnum) and that which injured the physical personality of the individual (injuria). In patrimonial damage, the generated impairment turns out to be economically assessable....\"\n\nAccording to the foregoing, it is not enough to invoke damage, but its existence and the causal link that binds it to the conduct or omission of the responsible entity must be convincingly demonstrated. The primordial rule of the law of responsibility is that which states \"without damage, there is no responsibility,\" but one must not falter in noting that on occasions or in damaging events, responsibility is not declared (e.g., exonerating causes or causes not imputable to the Administration). The other rule of the responsibility system is simple: the reparation of the damage must leave the person unharmed, that is, achieve the legal situation prior to the damage, as if it had not occurred, or at least the situation closest to that which existed before its occurrence. In other words, the compensation for the harm must correspond directly with the magnitude of the damage caused, but cannot exceed that limit. Regarding moral damage, the Sala Primera of the Corte Suprema de Justicia, in ruling No. 112-92, on this topic, expressed:\n\n\" .. it is verified when the sphere of an individual's extra-patrimonial interest is injured; however, as its infringement can generate patrimonial consequences, it is appropriate to distinguish between subjective moral damage, 'pure' or of affection, and objective or 'objectified' moral damage. Subjective moral damage occurs when a non-patrimonial right has been injured, without repercussion on the patrimony, normally involving an unjust disturbance of the individual's mental conditions {displeasure, dejection, despair, loss of satisfaction in living, etc., e.g.\n\nthe grievance against honor, dignity, intimacy, the so-called damage to life in relation, grief for the death of a relative}, thus one refers to the social part and the other to the affective part of the patrimony. \"
Regarding proof of moral damage, in that same ruling, the Chamber established:
\" Regarding the proof of moral damage, the principle is as follows: its existence and gravity must be proven, a burden that falls on the victim; however, it has been admitted that such proof can be achieved through human presumptions inferred from indications, since the unlawful generating act reveals the moral damage, because when the psyche, health, physical integrity, honor, intimacy, etc. are damaged, it is easy to infer the damage, which is why it is said that the proof of moral damage exists “in re ipsa”. On this point, this Chamber has stated that in matters of moral damage “... it is sufficient, on some occasions, with the occurrence of the culpable act for the damage to arise from it, according to the prudent assessment of the trial judges, when they are able to infer the damage based on circumstantial evidence (Ruling No. 114 of 4:00 p.m. on November 2, 1979)”
The damage must be effective, evaluable, and individualizable within the non-pecuniary sphere of the victim, insofar as it involved an indefinite, suspensive, and impeditive limitation of rights of enjoyment. Regarding the quantum, the formula of restitutio in integrum is not an absolute postulate, because it involves the subjective aspect that will always surround the indemnification of damage, due to different conceptions about how to implement the rule of full compensation, and with greater emphasis when it derives from the in re ipsa principle. The patrimonial quantification or liquidation of subjective moral damage or pretium doloris, which is of a psychic, affective nature, by excluding its demonstration, entails the application of judicial discretion, under the internal control and limit of reasonableness and proportionality. It must be considered that the moral prejudice and the alterations in the conditions of existence, in the administered party, are items of moral damage that are neither synonyms nor express the same damage. Their object of indemnification is independent through the figure of alterations in the c onditions of existence, which stands on the scaffolding of abnormal modification given the normal course of the plaintiff's existence, while through subjective moral prejudice, the suffering produced by the harmful act is compensated, a niche in which the material claim for moral damage resides. The compensation agreed upon as subjective moral damage is jurisprudentially delimited by the assessment that the judge perceives in the process of the sufferings that affect the victim's affective sphere. Determining the value of that injury poses another problem; its estimation is limited to what the evidence contributes to the rationality and discretion of the judge (see First Chamber: No. 1, 2:50 p.m. on 10-1-96 and No. 17 of 2:30 p.m. on February 21, 1996), and to the limitations of the legal system; where the compensation for this concept is considered a compensation for pain, but not a redress; which represents a sanction but not an exaction on the offender, in this regard it is worth citing: \"It is not a matter, then, of quantifying the value of a subject's honor and dignity, since these are inappreciable assets, but of establishing a monetary compensation for their injury, the only mechanism that the law can resort to, in order to thus repair, at least in part, their offense. Under such a philosophy, it would not be appropriate to establish exorbitant indemnifications, as happens in other legal systems, since that would produce the unjust enrichment of the offended party, through immoral profit from one's own honor and dignity. Among the fundamental principles of law are those of reasonableness and proportionality, which have been recognized in our context as having the status of constitutional principles (see in this regard, resolutions of the Constitutional Chamber #1739 - 92 of 11:45 a.m. on the first of July and 3495-92 of 2:30 p.m. on the nineteenth of November, both of 1992).
VI. ON THE MERITS OF THE CASE : To begin with the grounds of grievance of the defendant, that is, that there is no connection between the underlying facts of the judgment with respect to the conviction ordered against it, it becomes imperative to revisit said list of facts according to the ruling of the a quo court, not without first noting that none of the parties attacks same, that is, that all parties are aware that said facts are the fruit and consequence of the file before us and have the corresponding foundation. Furthermore, this Tribunal has conducted a study of them without finding any defect in them, as they are indeed the direct fruit of the file on which they are based. Thus, we have that Ms. [Nombre62 001] on the eleventh of September, nineteen hundred and ninety-eight, was hospitalized in the San Carlos Hospital for a viral meningitis condition, for which reason they isolated her in a room in the women's medicine service; on the twelfth of September, nineteen hundred and ninety-eight, nursing staff gave her an injection in the spine and indicated that she needed to be relaxed (within her previously prescribed medical treatment), after which they turned off the light in the room, which caused her to become drowsy. Under these circumstances of physical submission, the male nurse of said hospital, who was a public official in that hospital and was in charge of the patient, the defendant Mr. Nombre38651 , without being able to specify the time that night, proceeded to enter the room where the plaintiff was, leaned next to her bed, took her hand, and then opened her gown, and without the offended party being able to react due to the state she was in, he touched her legs in a libidinous manner and inserted a finger into her vagina. This situation resulted in the Tribunal of the Second Judicial Circuit of Alajuela, Ciudad Quesada, in final judgment No. 116-2000 of 4:30 p.m. on the twenty-eighth of August, two thousand, declaring Nombre38652 , the perpetrator and sole responsible party for having committed the crime of aggravated indecent abuse to the detriment of [Nombre62 001], and imposing a sentence of four years in prison, a judgment that was confirmed by a criminal cassation (casación penal) resolution. In what pertains to the case, it must be specified that when a person is undergoing medical treatment and especially when they are institutionalized, they are particularly limited and consequently the level of personal affectation is much greater than under ordinary conditions in which they could fully exercise the defense of their protected legal rights. In this case, to make matters worse, Ms. [Nombre62 001] had received treatment that limited her possibilities of repelling any attack, according to the same factual framework accepted by the parties, and which is even covered. Add to the above that the plaintiff suffered an impairment to one of the basic and fundamental legal rights, in the specific case, her sexual freedom. All of which determines that, without further questioning in the judgment of this Chamber, the referred lady suffered a relevant subjective moral affectation (which is exactly what she is claiming) of significant magnitudes caused by Mr. Nombre38651 , also defendant here. That situation, although it was not fully addressed by the trial judge (but neither is it the subject of the appeal), under the protection of Article one hundred three of the Penal Code, the generation of a criminal act, which in this case is fully proven, is sufficient grounds to establish civil liability, which even though it was not discussed within the criminal process since the corresponding civil compensatory action was not filed, this is not an obstacle to declaring it in this venue regarding the integration of norms that is necessary to resolve the specific case, all without prejudice to applying Article one thousand forty-five of the Civil Code, at least with respect to the direct perpetrator of the act who is the individual defendant here. Naturally, due to the type of affectation, the damage must be subjective moral (without prejudice to other spheres), noting that to reach that conclusion, an inference in re ipsa must be made, logical, coherent, and necessary from the affectation she suffered in a situation of such grave submission and violation of her sexual freedom. Any normal person in such similar conditions would feel feelings of emotional affectation of contempt towards their sexuality in the terms indicated by the plaintiff in her claim, such as feeling nervous, unable to sleep, feeling ashamed, unhappy, and fear of being alone in any location where an ordinary person would normally feel safe. Although there are no certain bases to determine that these conditions are the direct and necessary consequence of the facts proven in this process, human inference given the level of affectation the plaintiff could have had leads one to think they are a consequence thereof, unless proven otherwise, which did not occur in this case. Thus, there are sufficient grounds to deduce the liability of Mr. Nombre38651 . We recall in this regard that there is no scientific, certain, and exact mechanism that allows one somehow to establish with certainty a subjective moral nature affectation, so the only mechanism is human presumption; without prejudice –of course– to the existence of some indications directly aimed in that direction that allow the judge to conclude that their legal deductions are correctly oriented, as in the case under study. If that situation were not sufficient, it is also proven by the expert opinion of the Psychiatry and Forensic Psychology Section, Department of Legal Medicine, Judicial Investigation Organization (Organismo de Investigación Judicial) (folio pages 170 to 174 of the file), which confirm the liability without further question against the referred gentleman, under subjective liability for direct or personal conduct. Note how that party did not file any appeal, but as will be seen regarding the liability of the public entity, one of the grounds that originates it (but not the only one) is its derivative character from the public service in one of its agents, which brings with it the necessary consequence of its analysis, as indeed occurs. Now, specifically analyzing the liability of the appealing defendant, as has been indicated, its liability is objective, a consequence of the conduct displayed by the defendant Mr. Nombre38651 while the plaintiff was receiving the public medical assistance service from the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social). It is worth bringing up what is indicated by Article 191 of the General Law of Public Administration (Ley General de la Administración Pública):
\"Article 191.- The Administration shall repair all damage caused to the subjective rights of others by faults of its servants committed during the performance of the duties of the position or on the occasion thereof, using the opportunities or means it offers, even when it is for purposes or activities or acts unrelated to said mission.\"
Thus, and without further question, the grounds for the appeal filed by the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) have no reason to be, in addition to the fact that from a formal standpoint it fails to meet the minimum requirements for stating the grievance. It must be rejected. It should be noted that liability in these cases is joint and several (solidaria) and unlimited, in such a way that it corresponds to the plaintiff to determine against whom compliance with the obligation will be enforced (at the judgment enforcement stage), without prejudice to the fact that internally the liability is proportional. Within such reasoning, naturally the public entity was obliged to establish recovery actions for any amount paid in excess, since these are public funds where there is no liberality for their disposal. As far as the victorious party is concerned, it does not matter who covers the debt, as long as it is paid in full. Regarding the plaintiff's appeal, after a measured study of the case, it is the Chamber's view that it is correct in most of its arguments and consequences. Thus, in the opinion of this jurisdictional body and on the merit of the file, the damage caused to the plaintiff presents serious emotional affectations, which evidently –as a human presumption– could affect her entire life in one way or another. Although there is no clear and defined methodology to establish the quantum of subjective moral damage for moral affectations, the amount recognized in the judgment on the merits does not manage to repair to a reasonable degree the affectation faced by the plaintiff. Such a situation necessarily obliges an adjustment of the amount and setting it at the sum of four million five hundred thousand colones, an economic item that allows retribution in some way without becoming abusive, exorbitant, or exaggerated, or in any way allowing unjust enrichment for the counterpart. In a way that allows assuaging to some extent the suffering caused by the facts that are being heard. As has been indicated, said item is based on the affected legal right and the affectations that Ms. [Nombre62 001] could face, in addition to the interest of generating equity in the specific case. Said amount would move substantially away from a symbolic compensation to allow a more realistic item, without under any aspect intending to set an economic value on the dignity of persons, which as we know has no price. As for the amount originally requested by the plaintiff of six million, if we consider that it would present the deficiency of being exaggerated, while the amount recognized here does not present that defect, the grievance must be partially upheld.
POR TANTO:
The judgment is modified solely to recognize the sum of four million five hundred thousand colones to the plaintiff for subjective moral damage. In all other respects, the appealed judgment is confirmed.
Nombre12756
Ricardo A.\n\nMadrigal Jiménez Carlos Espinoza Salas\n\n**Expediente: 02-000162-163-CA**\n\n**Ordinary proceeding Contencioso Administrativo**\n\n**Plaintiff: [Nombre62 001]**\n\n**Defendant: Caja Costarricense del Seguro Social and Nombre38651**" }