Felipe Córdoba Ramírez
Silvia Consuelo Fernández Brenes Christian Hess Araya
Dissenting vote of Judge Hess Araya:
I.- I dissent only insofar as the preceding ruling concludes that there was an act of omission attributable to the State and, consequently, upholds the claim against it, under the terms of item a) of the operative part; which I support as follows.
II.- Article 5 in fine of the Ley Indígena stipulates: \"The expropriations and indemnifications shall be financed with the contribution of one hundred million colones in cash, which shall be deposited through four annual installments of twenty-five million colones each, beginning the first in the year 1979; said installments shall be included in the general budgets of the Republic for the years 1979, 1980, 1981, and 1982. The fund shall be administered by CONAI, under the supervision of the Contraloría General de la República.\" In the opinion of the undersigned, and in divergence from the criterion of my fellow members of the Court (and even partially reconsidering what I subscribed to in ruling N° 198-2011-VI of Section Six), the transcribed stipulations – despite being inserted in a norm whose remaining content does not possess that character – were established by the legislature with a purely transitory validity and, in fact, under sound legislative technique should have appeared in the corresponding section at the end of the law, as is customary. Based on both their text and the application of the principle of the annuality of the budget cycle, I consider that the validity of said provisions expired at the end of the fiscal year 1982, without this Court being empowered to reestablish their validity more than thirty years later, however noble the purpose that inspired their enactment may be. All of the foregoing without prejudice to: a) the norm omits to indicate the source of financing that would cover the outlay ordered therein, in violation of the principle of budgetary balance, a marginal reflection in which I do not delve deeper as it pertains to the Constitutional Jurisdiction and not to that of this Chamber; and b) it is strange, by all means, that the administration of the fund was entrusted to CONAI, when it was ITCO (now INDER) that was to carry out and pay for the expropriations. By this statement I do not intend to disregard either the international commitments assumed by the Costa Rican State in matters of protection of indigenous cultures, or the responsibilities contained in the relevant legislation. I confine myself to noting a reality, which is that the cited rules were foreseen to be fulfilled within a specific period, which has amply expired, and that, consequently, this collegiate body cannot now compel compliance.-
III.- Furthermore, in the dissenting vote that I also recorded for ruling N° 53-2013-VII of this Court, I expressed the reasons why I consider that the omission – attributed to the Executive Branch – to provide for certain budget items in the ordinary or extraordinary Budget bills of the Republic that it submits for the consideration of the Legislative Assembly, does not constitute an administrative conduct whose oversight falls to this jurisdiction; as well as why I consider that it is not possible for this Court to compel the Executive Branch to act otherwise (and even less so by determining in how many stages to do so), even though these are budget obligations of legal origin. Certainly, the money necessary to pay for the required expropriations must come from somewhere and, therefore, to the extent that INDER cannot fund them from its own resources, it would have to arrange the necessary budget transfers. But that is very different from this Court going so far as to order the Executive Branch to proceed in that sense, assuming a power that I believe it does not have. In any event, it should be noted that ultimately and in the event that this position is not shared, I am of the opinion that what was ordered in another very similar case (under file N° 10-000275-1028-CA, resolved with the already cited ruling N° 198-2011-VI) would remain applicable to this case, where it was explained that it is not possible to attribute an omissive conduct to the Executive Branch for not having budgeted and disbursed the funds for the expropriations of non-indigenous individuals, since this necessarily presupposes that the IDA and CONAI have first fulfilled their obligations related to determining in which cases it was appropriate to proceed in that manner, in order to subsequently request the necessary resources.-
IV.- Finally, it should be added that based on the manner in which the procedural claims were formulated in this matter, only those numbered 3 and 5 contain petitions relative to the State: the first seeks that the latter initiate, together with the IDA (now INDER) and CONAI, \"the cited studies and appraisals, the procedures for indemnifications (including possible expropriations)\", duties which the law assigns only to those latter two entities; while the second is clearly inadmissible for the reasons stated in this ruling and which I share. Consequently, to the extent that the operative part of the ruling \"orders the State to carry out coordinated, systematic, and effective work with the Comisión Nacional de Asuntos Indígenas and the Instituto de Desarrollo Rural and the Indigenous Community Nombre128202 , which guarantee the execution of the provisions of Article 5 of the Ley Indígena\", this norm is given a scope which it does not possess with respect to the State, and I therefore do not consider the referred mandate juridically sustainable.-
V.- For all the foregoing, I uphold the exception of lack of standing to be sued (falta de legitimación pasiva) raised by the State, against which I declare the complaint inadmissible, with the corresponding award of costs in its favor.\n\nIn all other respects, I concur with the preceding ruling.-
CHRISTIAN HESS ARAYA