C) REGARDING THE OMISSION TO RECEIVE THE STATEMENT OF FORMER VICE-MINISTER OF REVENUE, MR. ESPINOZA HOWELL, WITHOUT ANY BASIS OR REASON, VIOLATING DUE PROCESS AND THE RIGHT OF DEFENSE.. The arguments —statements of \"facts\" 36 to 38—are rejected, as unfounded, as groundless, for the following basic reasons: It is true that the statement of Mr. Rowlan Espinoza Howell, former Vice-Minister of Revenue, was timely offered as testimonial evidence. However, it is not true that it was not gathered, without any basis or reason. Nor, consequently, that due process and the right of defense were breached. As recorded in the brief dated March 19, 2015—folios 230 to 236 of volume 1) of administrative case file No. 16032— that witness was offered regarding the following facts: that he signed resolution RES-RP-64-2011, of October 19, 2011, that Mr. Nombre81321 also signed that resolution, that Mr. Nombre81321 was not requesting the reassignment of his son, and that it was not carried out, as it was subsequently rendered ineffective. Without major significance, given the documentation of most of those \"facts.\" In no way, regarding the statute of limitations. Furthermore, the Court finds no brief indicating, much less reiterating, that the summons of this former official should have been made by the Dirección General, on the basis that Mr. Nombre81321 lacked the capacity to do so. Regardless, it is not a witness for the Administration's case, but rather for the defense, of the investigated party, upon whom rested, therefore, the duty of locating him and delivering the summons card, by virtue of the burden of his proof. Moreover, as recorded in folios 237 to 239 of that same volume of the administrative case file, Mr. Nombre81321 was notified of the resolution setting the time and date for receiving Mr. Espinoza Howell's statement. Additionally, on the reverse of folio 248 (248 A) of the case file, it is recorded that the summons cards for the witnesses were delivered, among them, that of Mr. Espinoza Howell. It is a different matter, as recorded in folio 271, of volume 2 of the administrative case file, that Mr. Nombre81321's representative informed the instruction phase that it had not been possible to summon said witness, as he was no longer a public official. Or, as recorded in folio 296 of that same administrative volume, that in view of the foregoing, Mr. Nombre81321's representative requested his substitution with Mr. Méndez Murillo, to testify about the same facts. For which he requested a new scheduling order. The fact is that Mr. Espinoza Howell did not appear. Hence, by an instruction order dated April 9, 2015, it was considered and ordered that he had already been summoned, by prior resolution; that he had not appeared at the set time and date; and because the record only contains one document submitted by the respondent's representation alluding to the impossibility of summoning the witness and the non-appearance of said witness, said testimonial evidence is declared impossible to obtain (folio 97, volume 2 of the administrative file). Hence also, by an instruction order dated April 9, 2015, it was ordered that accepting the inclusion of a new witness who was not added or requested at the appropriate procedural time, i.e., untimely, was not admissible (folios 300 and 301 of volume 2 of the administrative file). Therefore, it is not true—and it is therefore rejected—that his substitution request was not addressed. It is a different matter that it was rejected. Which was done, as was the declaration of impossibility to obtain, in a reasoned manner. Based on the foregoing—and without the need for further comment— the claims identified with numbers 2 and 3 must be rejected, as unfounded.
REGARDING THE STATUTE OF LIMITATIONS OF THE DISCIPLINARY ACTION FOR THE IMPUTED FAULTS: Article 603 of the Labor Code, then in force, established: The rights and actions of employers to justifiably dismiss workers or to discipline their faults prescribe in one month, which shall begin to run from the time cause for separation arose or, as the case may be, from when the facts that gave rise to the disciplinary correction were known.\" In concordance, article 99 of the Regulation of the Civil Service Statute—Decreto Ejecutivo # 21 of 12/14/1954—establishes: \"The following shall prescribe in one month: a)... b)... and c) The actions of the Ministers to initiate the dismissal proceeding of regular employees for just cause and to impose disciplinary corrections authorized by law and internal work regulations, from the day on which cause for the sanction arose, or, as the case may be, from when the corresponding facts or faults were known. (underlining supplied). Therefore, there are two premises from which the start of the deadline for the competent authority to process the proceeding is applicable: From when the facts or faults occur, or, from when they are brought to the attention of the body competent by virtue of holding disciplinary power. And said body is in an effective position to act, that is, in the case of the statutory regime, to instigate the dismissal proceeding before the Dirección General de Servicio Civil. The first fault imputed was for the resolution of the transfer—reassignment—of Mr. Adrian Rodríguez Arnejo, to the T.F.A., authorized and signed by his father, Mr. Nombre81321, as President of the T.F.A. And the second for intervening before the DGSC seeking that extraordinary examinations be given to two people, one of them his son, in order to be included on the eligible list for membership in said tribunal. Acts that were reported to the Vice-Minister of Revenue, Rodríguez Garro, and as a result of that, after prior investigation to compile the case file, the dismissal proceeding is initiated by the Executive Branch. Indeed, according to proven facts and background, numbers 3 and 4, we have that between November 27, 2014, the date on which the Vice-Minister of Revenue received from the anonymous complainants the copy of official letters TFA-PRES 026-2012, TFA-PRES-053-2013, TFA-PRES-100-2013, and the indication of the file where resolution RP-064-2011 was located—, and December 18, 2014, date on which Mr. Nombre81321 was notified of the resolution No. AJD-RES-487-2014, from the Dirección General de Servicio Civil, in which the proceeding was deemed instituted and the charges were imputed to him, the period of the alleged statute of limitations did not elapse. Furthermore, in accordance with the Regulation to the Law Against Corruption and Illicit Enrichment in Public Office— D ecreto Ejecutivo # 32333 of 04/12/2005—specifically, its article 11, on \"Presentation of complaints\", which as relevant establishes that (...) The competent body shall examine, within a reasonable period, the admissibility of the complaint, issuing the respective act, (...) rejecting it or admitting it. Complaints filed must be registered in such a way that the citizen and the Administration can easily and timely identify them and follow up on them. (Thus amended by article 1, subsection b), of decreto ejecutivo N° 34409 of February 27, 2008); and its article 13, on \"Anonymous complaints\", which establishes that: \"No processing shall be given to complaints filed anonymously. In exceptional cases, a preliminary investigation may be opened ex officio, when it is accompanied by elements of proof that give merit to do so. Otherwise, the respective authority shall order its archival without further processing\", in the present case, for this reason, a preliminary investigation was necessary, consisting, at least, of locating and certifying the elements of proof received, mentioned, and related, for the purposes of the merit examination; and therefore, to support the request for the opening of the administrative proceeding, as was done, within a reasonable period, by the competent body, in this case, by the Executive Branch (President of the Republic and Minister of Finance). Therefore, from the complaint received in the Office of Vice-Minister Rodríguez Garro and the compilation of the respective case file and the date on which the senior officials with the competence to instigate the dismissal had qualified or sufficient knowledge, the alleged statute of limitations did not take effect. In this understanding, the Tribunal de Servicio Civil—basically—resolved, and the Tribunal Administrativo del Servicio Civil confirmed. Which is now confirmed by this Section Two of the Court. The opposing arguments—statements of facts 18) to 35)—to which we refer, are rejected, as unfounded, for the following reasons: The assertion that \"the State\" had knowledge, notice, and information of the specific acts classified as faults since October 2011, is rejected, as generic, since \"the State\" is not a natural person, but a legal entity, and therefore does not have knowledge, as such, but rather through its bodies. Particularly through its competent bodies. In this case, and as stated, by the Executive Branch (President of the Republic and the relevant Minister). In the same sense, the alleged knowledge of the faults in the \"highest spheres of the State\" is rejected. The assertion that the \"Ministerio de Hacienda\" had knowledge, notice, and information of the specific acts classified as faults since October 2011, is also rejected, as generic, since it is also not a natural person, but a constitutional body. Comprised of the Minister, the natural person designated as such. Furthermore, it is not enough to have notice and information, but rather knowledge. But not just any knowledge, but rather sufficient and qualified knowledge, for the merit examination. For which—we maintain—a complaint alone is not enough, even less if it is anonymous, but rather the receipt, together with it, of elements of proof, of merit, for its admission or rejection; so that the competent body, in this case, the Executive Branch (President of the Republic and the Minister of Finance), is in an effective position to instigate the dismissal proceeding before the Dirección General de Servicio Civil. The assertion that the Vice-Minister of Revenue, Fernando Rodríguez Garro had knowledge, notice, and information of the specific acts classified as faults since October 2011, is rejected, as unfounded, as groundless, since it is not accredited or demonstrated that said gentleman had been appointed as Vice-Minister of Revenue in October 2011. Therefore, the Court does not understand how he could have known since then. Much less, regarding the resolution RES- RP-63-2011 of October 19, 2011, for the permanent reassignment of position No. 013358, from the program Administración de Ingresos Internos—Gestión Ingresos Internos, Budget Code 206-134-02-01-0001, to the Program Tribunales Fiscales y Aduaneros—T.F.S. 206-135-01-01-01-0001, effective as of October 20, 2011, a position occupied by Mr. Nombre81321's son. That resolution was not authorized or signed by the subsequent Vice-Minister of Revenue, Mr. Rodríguez Garro. By virtue of which the assertion that said resolution must have been evident to the cited Mr. Vice-Minister of Revenue, simply because it was provided along with the Dismissal Proceeding, is rejected as groundless. In any case, the authorization and signing of his son's transfer by reassignment was only one of the bases for the two imputed faults. It is acceptable that that resolution was signed by the then Vice-Minister of Revenue, Rowland Espinoza Howell, that same day, October 19, 2011. However, it cannot be omitted that it was also authorized and signed, previously, by Mr. Nombre81321, as administrator of the Program, as President of the T.F.A. And by his son, as a sign of consent. Nor can it be omitted, that it was authorized and signed by Mr. Nombre81321, despite knowing that the official to be permanently reassigned was his son. Furthermore, nowhere in the case file—judicial or administrative—is it recorded that Mr. Nombre81321 had informed the Vice-Minister of Revenue of this beforehand. It is this incorrect action in the performance of his duties as President of the T.F.A. that is being reproached. Regardless, it is not understandable or justifiable that an official with the authority of Mr. Nombre81321, and given his status as a Law Graduate, with years of expertise in legal matters, and above all, with years of service in the Public Administration, would ignore the legal impediment to his son becoming part of the T.F.A., as provided in subsection b) of Article 9 of the Regulation of the Civil Service Statute, especially since apart from the prohibition established in the regulations, evidently the kinship relationship was known to Mr. Nombre81321, despite which he consented to the procedure in question by authorizing and signing the reassignment resolution. It was only later that it was rendered ineffective, through resolution RES-RP- 68-2011. But not at Mr. Nombre81321's initiative, but rather due to the warning from the Deputy Director of Tax Administration, after being informed—not by Mr. Nombre81321, but by the Legal Advisory—of the impediment due to the kinship relationship. Hence, and even though the reassignment was rendered ineffective, Mr. Nombre81321's conduct constituted an action that was not only irregular given his position as President of the T.F.A., but also contrary to the fundamental principles and pillars that inspire and regulate his service relationship with the Administration, which is highly reprehensible. The Tribunal de Servicio Civil essentially considered this, and this Section of the Court endorses it. Furthermore, as we indicate, that resolution was not issued by the \"Ministerio de Hacienda,\" but by the senior officials of the two corresponding budgetary administrative programs. Which is different. That is: it was authorized and signed by the then Vice-Minister of Revenue; but also, by the then President of the T.F.A. Which implies assent—and prior agreement—from each of the administrative senior officials. Therefore, while it is not an act emanating exclusively from the T.F.A. and/or from the desk of Mr. Nombre81321, it is also not a resolution carried out, properly, by the Ministry. In this sense, it is rejected that it was the Office of the Minister or Vice-Minister who made the reassignment And, therefore, that it was the Office of the Minister or Vice-Minister who rendered it ineffective days later. On the other hand, the request made by the Deputy Director of Tax Administration via official letter SGT-109-2011 was merely for the preparation of that transfer resolution. Which is different (folio 26 of the administrative file). Based on the foregoing, the assertion that it was the Vice-Minister himself, in the person of Fernando Rodríguez Garro, who, three years later, without investigating the occurred facts and the existing documents and resolutions, ignored the content and scope of resolutions RES-RP-64-2011 and RES-RP- 68-2011, in order to consider one of the two grounds for dismissal as established, is rejected as groundless. Indeed, it was not that ministerial body, properly—whichever natural person occupies it— but rather the Executive Branch (the body of the Minister of Finance jointly with the body of the Presidency of the Republic), after prior investigation—location, certification, and qualified knowledge—of the content and scope of the elements of proof, among them, resolution RES-RP-64-2011, who finally instigated, as the competent body, his dismissal, based on said action; in addition to other acts, the basis for the second imputation. For which reason, the statement by the witness, Licda. Rocío Espinoza Navarro, in the administrative proceeding, is rejected as useless and inconsequential, in the sense that, to the question: \"At what moment do the senior officials of the Ministerio de Hacienda learn that Mr. Nombre81321 signed that resolution?\" said witness answered: \"I have no knowledge of the exact moment they learn, but I can indicate that the Vice-Minister of Revenue at that time signs the resolution after Mr. Nombre81321, therefore, he learns at that moment.\n\nIt is worth accepting that prior to its signature—by the heads of the respective administrative revenue programs—the reverse of resolution RES-RP-64-2011, of October 19, 2011, already showed it had been prepared by a legal advisor, with the approval of the Coordinator of Legal Advisory Services, the Deputy Administrative Financial Director, and the Director of Human Resources, as well as its subsequent receipt in this Department, on October 21, 2011. However, Mr. Nombre81321 does not demonstrate—nor does this Tribunal understand—in what sense he claims that all of them are \"employer representatives,\" given that they are subordinate auxiliary personnel—performing merely technical, legal, and administrative procedural functions—who do not express, nor therefore commit, the final legal will of the Administration. By virtue of this, the allegation of prescription, based on the assertion that they had knowledge of the facts—in this case, of that resolution—since October 2011 and that therefore 3 years passed before the \"dismissal proceeding\" was filed, is rejected. It is true that this resolution was annulled by Resolution RES-RP-68-2011, of November 8, 2011. That said, this second resolution was signed not only by the then Vice Minister of Tax Revenues of the Ministry of Finance, Mr. Espinoza Howell, but also by Mr. Nombre81321, as President of the T.F.A., as the administrative head of the Tribunal's budget program. In any case, Mr. Nombre81321 does not explain—nor does this Tribunal understand—what relationship this has with the prescription allegation. In any event, we reiterate, it was not the Ministry of Finance, the entity managing the administrative dismissal procedure, that signed resolutions RES-RP-64-2011 and RES-RP-68-2011. Furthermore, it is true that there is an anonymous complaint, from a citizen, dated January 9, 2013—a 4-page document—addressed to the Procurador de La Ética, the Contraloría General de La República, the Dirección General de Servicio Civil, and the Dirección de Gestión de Potencial Humano of the Ministry of Finance, with a copy to the Ministry's internal audit office and the Comisión del Control Político of the Asamblea Legislativa. And it bears a received stamp, dated January 16, 2013, from the Oficina de Gestión Potencial Humano of the Ministry of Finance (folios 90-93 of the administrative file, Volume 1). However, the derivation that the same facts had already been brought to the attention of the \"employer\"—based on that document—is rejected as improper and biased. That document cannot be interpreted in a biased or incomplete manner. That document expressly states that the complaint concerns the appointment resolution No. PRES-001-2012—the only one for which a copy was attached—designating Lic. Gerardo Danilo Soto Gamboa as processing attorney (abogado tramitador) for the Presidency of the T.F.A. An act regarding which a detailed account of its alleged irregularities is provided, and Article 54 of Ley 8422, concerning influence peddling (tráfico de influencias) that was allegedly being violated, is transcribed. That particular act is the one regarding which nearly three pages of arguments are dedicated and employed concerning its alleged irregularity. It was only after the foregoing that the document tangentially states that: \"... It is not beside the point to mention that this situation of irregular appointments is nothing new in the Tribunal (sic), since in 2011, as can be corroborated in the respective personnel files, Mr. Rodríguez had already attempted to commit another similar illicit act, when he proceeded to appoint his son, Mr. Adrián Rodríguez Arnesto, as an official of the Tribunal Fiscal, who is currently an official of the Dirección de Grandes Contribuyentes Nacionales, which if said appointment had been formalized would have resulted in a direct hierarchical relationship between father and son, although to date this has not improved much because Mr. Rodríguez Arnesto is also the attorney resolving cases that this Tax Administration refers to the Tribunal. All this act of corruption remains unpunished to date because the respective resolutions were simply annulled, without assigning greater responsibility to those who had made this corrupt decision...\" (...) \"... The objective of this complaint is for the competent authorities to carry out the corresponding legal investigations to determine the unlawfulness of the acts described herein, and to assign the corresponding disciplinary and judicial responsibilities against the officials allegedly involved, this with the aim of maintaining proper performance of duties in the exercise of public function (...) and preventing acts of corruption that allow appointments to government positions to continue being made arbitrarily, without respecting the respective eligible registers, in addition to preventing any economic damage that this may represent against the Public Treasury (Hacienda Pública) and the credibility of the officials who have the privilege of exercising public function.\" In any event, that anonymous complaint does not specify the number, date, or exact details of the appointment of Mr. Adrián Rodríguez Arnesto as an official of the Tribunal Fiscal, besides the fact that no evidentiary element is provided regarding him, unlike the other specifically and concretely denounced act, which is the appointment designating Lic. Gerardo Danilo Soto Gamboa as processing attorney for the Presidency of the T.F.A., regarding which the resolution's number and year are precisely indicated and the evidentiary element is attached. Consequently, it was only with respect to this single legal act that that anonymous complaint could legally be—and was—processed. This is corroborated by official letter DGPH-AO-019-2013 of January 25, 2013—which Mr. Nombre81321 invokes—in which the Acting Director of Human Resources of the Ministry answers—and informs—Minister Ayales Esna regarding aspects he consulted about the aforementioned anonymous complaint concerning the issuance of Resolution No. PRES-001-2012 dated October 30, 2012, signed by Mr. Nombre81321, in his capacity as President of the Tribunal Fiscal Administrativo, by which it was resolved to designate Mr. Gerardo Danilo Soto Gamboa as Processing Attorney for the Presidency of the T.F.A. For this reason, the question of whether or not the Ministry had a copy of that anonymous document is rejected as useless and irrelevant, as well as the statement made in the administrative venue by the interested party himself, that is, by the witness, Lic. Gerardo Danilo Soto Gamboa, in the sense of having known of it \"... because in an anonymous document also submitted to Human Resources which was elevated to the Minister's office and to the Executive Branch (sic), which caused an ordinary procedure to be initiated to annul administrative acts of operation and organization issued by the Presidency of the Tribunal, for which it is worth noting that the Attorney General's Office issued a favorable opinion in my favor, mention had already been made of these facts and others. (...) It was at the beginning of 2013, I spent all of 2013 in an administrative proceeding (...) I do specify that it spoke of illegal appointments of myself and of Adrián Rodríguez, it named him as such that it was illegal, appointments in the Tribunal Fiscal.\" We insist, from the content of Official Letter DGPH-AO-019-2013 of January 25, 2013, it is evident, contrary to what Mr. Nombre81321 indicated, that the aforementioned complaint was only brought to the Ministry's attention regarding that appointment of the witness himself, Lic. Soto Gamboa, at that time. In any case, its content shows that these are facts—and qualifications—different from those investigated and sanctioned in the dismissal proceeding—file 16032. Regarding the second misconduct, in accordance with proven fact No. 2, we have that: These are not hypothetical official letters sent to the Dirección General de Servicio Civil for the administration of suitability exams. Nor mere recommendations. It is true that they are official letters from 2012 and 2013 (T.F.A.-PRES-026-2012, dated June 19, 2012, T.F.A.-PRES-053-2012, dated May 29, 2013, T.F.A.-PRES-054-2012, dated May 29, 2013, and TFA-PRES-100-2013, dated November 14, 2013). The assertion that the only letter included in the \"dismissal\" petition bearing his signature is TFA-PRES-100-2013 of November 14, 2013, is rejected as improper and unfounded, given that: Official Letter T.F.A.-PRES-026-2012, dated June 19, 2012, bears the stamped original signature of the President of the Tribunal, the Tribunal Fiscal stamp, and a received stamp by Reclutamiento y Selección dated June 21, 2012. Official Letter T.F.A.-PRES-053-2012, dated May 29, 2013, bears the signature of the President of the Tribunal and the Tribunal Fiscal stamp, and a received stamp by the Dirección General -DGSC- dated May 29, 2013. And Official Letter T.F.A.-PRES-054-2012, dated May 29, 2013, bears the stamped original signature of the President of the Tribunal, the Tribunal Fiscal stamp, and a received stamp by the Dirección General DGSC, dated May 29, 2013. Moreover, they have not been alleged to be false nor declared false. Consequently, the claim that they could not be taken into account with probative value is rejected. Much less for being ineffective and lacking validity. Being useless and irrelevant, for the reasons stated, is whether or not Lic. Adrián Rodríguez Arnesto is included in the request for an exam in the last Official Letter TFA-PRES-100-2013, dated November 14, 2013. There is no doubt of the impropriety of Mr. Nombre81321 directly managing the application of extraordinary exams for his son Adrián so that he could become part of the eligible register of Members of the Tribunal Fiscal Administrativo, considering that at that time his son was not his subordinate, as he was working in another budget program, specifically in the Dirección General de Tributación Directa, in the Grandes Contribuyentes office, which was documented. In any case, Mr. Nombre81321 had no reason to make these types of requests that tarnish the institutional image, given that if there was a need to complete the eligibility list of Members of the T.F.A., or if there was no adequate register of suitable persons to apply for a possible position as a Member of that Tribunal—which is not deduced from the evidence provided—the truth is that what Mr. Nombre81321 should have processed, in coordination with the Dirección General de Servicio Civil and the Ministry of Finance, was a competitive examination (concurso) so that all interested parties who met the required qualifications could appear in said process, and not make a request for extraordinary exams for persons expressly indicated and defined by Mr. Nombre81321, particularly for his son. If the cited officials had an interest in participating in or joining the eligibility list, on their own they should have, like any citizen, public servant or not, resorted to the corresponding established channels, that is, the Dirección General de Servicio Civil, and made the respective request or inquiry, or entered the website of said Office to stay informed of ongoing competitive examinations. Mr. Nombre81321, for his part, should have refrained from those types of practices that have been so harmful and damaging in public management and completely contrary to the system of merit and competitive examinations under equal conditions that the Civil Service Regime (Régimen Estatutario) protects and safeguards. Furthermore, if—as he himself indicates—while he was a Member of the T.F.A., his son, even if he passed the respective exams, could not be considered for membership in that Tribunal, then even less justified is Mr. Nombre81321's intervention and insistence before the Dirección General de Servicio Civil for such extraordinary exams to be administered to his referred individuals, among them his son. Such conduct demonstrates and manifests a greater personal interest, alien to the public purpose that the Administration must safeguard, for on what grounds, and with what impartiality, could one person be prioritized over others, what parameter of suitability could justify this type of request without incurring inequality, in order to hold up these actions—which were furthermore unnecessary, since any interested party could process an application on their own to compete in the respective competitive examinations—as transparent. This, in essence, was how the Tribunal de Servicio Civil considered it, and this Section of the Tribunal endorses that. Regarding the fact that the grounds attributed to him are not within the exhaustive grounds for removal, removal for non-re-election, of the Tax Code, nor in any criminal figure typified in the Law Against Corruption, this is not a simple ground for removal. Mr. Nombre81321 forgets that he is a public servant and performs within an employment relationship (relación de servicio) where the State, as his employer, must ensure that the actions of its subordinates conform at all times to legal and regulatory norms. Ergo, this is not a simple ground for removal but a serious misconduct, constituting a ground for dismissal without employer liability (despido sin responsabilidad patronal), subsumable under the duty of probity—not a crime—of Article 3 of that same Law, by virtue of what has been stated. It is worth accepting that the Dirección General de Servicio Civil has functions as the \"governing body\" (\"rectora\") of the Human Resources of the Executive Branch, among others. However, the derivation that because of this, it is an employer representative (representante patronal) for the purposes of applying the prescription periods alleged in this litigation is rejected as improper and unfounded. The thesis presented contradicts legal doctrine and jurisprudence. For which we refer, to avoid unnecessary repetition, to the previous considerations concerning the Executive Branch as the competent body to initiate the dismissal proceeding, precisely because it holds the sanctioning power. Consequently, the allegation of prescription based on the fact that from the date these other events occurred and came to the knowledge of the Dirección de Servicio Civil, until the moment the \"dismissal\" proceeding was initiated, more than one year elapsed, is rejected. For the reasons stated, the subsidiary claim number 3, regarding prescription of the disciplinary action, is rejected. REMAINING ALLEGATIONS: He finally alleges: A) Disproportionality between the facts forming the basis for the dismissal request and the sanction applied: Due to the importance—economic and legal—of the function performed by Mr. Nombre81321 as President of the T.F.A., his international recognition, his life of honesty and excellence in his management; his career; And, because the acts were not executed with fault or fraud (culpa o dolo), were never consummated, and do not constitute a crime or nepotism; B) Crimes against probity: Because he was accused of committing the crimes typified in Articles 45 through 62 of Chapter V of the Law Against Corruption and Illicit Enrichment in Public Function (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), without any of the facts forming the basis for the dismissal fitting the legal definition, nor do they fit the exhaustive list of causes for which removal, by non-re-election, may proceed, in accordance with Article 162 of the Tax Code; C) Reassignments (Reubicaciones) requested: Because they responded to a government need, due to a lack of personnel in the TFA, not by Mr. Nombre81321 unilaterally or capriciously, using his position, but at the request of the Vice Minister of Revenues, including that of his son, whose eventual (unexecuted) reassignment was proposed—processed and authorized—through the signature and countersignature of several department heads by other dependencies; and, finally D) Request for suitability exams, so that, in case of approval, they could form the eligible list, constitute a slate of substitutes, and eventually replace the Judges, which he argues—would have been possible for his son only once his father retired, due to the kinship relationship, meaning it did not constitute nepotism or influence peddling because of his son's virtues; because Mr. Nombre81321 did not use his position to place him in a preferential position; because it is the Executive Branch who appoints; and because he was never examined, so there was no harm to the Administration. In relation to the foregoing, this Section of the Tribunal determines their impropriety, and therefore their rejection, for the following basic reasons: Dismissal without employer liability is proportional due to the greater weight and gravity acquired by the imputed and accredited misconducts considering precisely the greater responsibility that, by principle, is demanded of Mr. Nombre81321 as an official, due to the importance—economic and legal—of his function, due to his high position as President of the T.F.A., and his long career. It is not the Administration but Mr. Nombre81321 himself who, through his acts, came to affect—as he states—his international recognition and his life of honesty and excellence in his management. Besides, upon close examination, Mr. Nombre81321 was not accused of the acts having been executed and consummated, nor of their constituting a crime or nepotism. Neither was he accused of fraud (dolo), but rather of administrative fault (culpa), for violating the duty of probity.\n\nWe reiterate, Mr. Nombre81321 was not charged with the commission of the crimes defined in Articles 45 to 62 of Chapter V of the Law against Corruption and Illicit Enrichment in Public Office, therefore it is useless, as it is inconsequential, whether the acts or faults forming the basis of the dismissal do or do not fit the legal definition. Neither was he charged with the commission of the grounds for removal under Article 162 of the Tax Code, by which removal can proceed due to non-reappointment. As we indicated, Mr. Nombre81321, as well as all the members of the T.F.A. —both lifetime tenure (propietarios) and alternate (suplentes)— are not only appointed by the Executive Branch, following a competitive examination of credentials and in accordance with the rules of the Civil Service Statute, but can also be removed by said Branch of the Republic when there is merit to do so. To argue the contrary would be to shelter impunity, which this Tribunal is not prepared to condone. For the foregoing reasons, it is clear that the dismissal regime contemplated in Chapter IX of the Civil Service Statute is applicable to any member of said Tribunal, whose Article 43 states: \"Public servants may only be removed from their posts if they incur in the grounds determined by Article 81 of the Labor Code and Article 41, subsection d), of this law, or in acts that imply a serious infraction of this Statute, its regulations, or the respective Internal Labor Regulations (...).\" For its part, Article 51 of said regulatory body states: \"Cases not provided for in this law, in its regulations, or in its supplementary or related laws, shall be resolved in accordance with the Labor Code, the Social Security Law, the general principles of Civil Service, the principles and laws of common law, equity, local custom and usage (...).\" [emphasis added]. Having explained the above, the plaintiff seems to confuse the independence in office regulated by the legal system, regarding the organization, functioning, and competence of the Tribunal Fiscal Administrativo vis-à-vis the Executive Branch in matters within its jurisdiction—that is, regarding the resolution of tax cases submitted for its consideration—with the administrative and disciplinary controls—not hierarchical—that can and must be exercised over deconcentrated bodies. (...) but this independence could never include matters relating to the disciplinary regime of its members, on which the aforementioned law is also clear, by providing that the formalities and substantive provisions established in the Civil Service Statute shall also be observed for the removal of the members of the Tribunal, a provision equally contained in the Internal Regulations of said administrative body, by stating that everything related to the establishment of the disciplinary regime applicable to all officials of such Tribunal shall be governed in accordance with the Civil Service Statute, the General Law of Public Administration, and other legal and regulatory provisions of supplementary application....\". Nor is it relevant whether the reassignment of his son was or was not at the request of the Deputy Minister of Revenue, whether it was or was not due to a Government need, nor whether it was or was not carried out by Mr. Nombre81321 unilaterally or whimsically, asserting his position, that is, through influence peddling (tráfico de influencias), but rather for a breach of the duty of probity (deber de probidad). Nor is it an obstacle, for the reasons already stated, whether he was proposed or not by other departments, nor whether on the reverse of resolution RES-RP-64-2011, dated October 19, 2011, it appears that it was drafted by a legal advisor, with the approval of the Coordinator of the Legal Advisory Office, the Deputy Administrative Financial Director, and the Director of Human Resources, given that this is subordinate auxiliary staff—in functions of mere technical-legal and administrative processing—who do not express—and therefore do not commit—the final legal will of the Administration. As was, in this case, the authorization and signature, among others, of Mr. Nombre81321, as President of the T.F.A. and, therefore, as head of the committed budgetary program. Furthermore, as is acknowledged, his son's passing of the exam would have allowed him to be placed on the list of eligible candidates, on a shortlist, and to his eventual appointment at the T.F.A. once his father retired. Finally, it is worth reiterating that Mr. Nombre81321 was not charged with nepotism or influence peddling (tráfico de influencias), that is, a result, however—and regardless of the academic or professional merits of his son—there is no doubt of the serious fault, of the action in itself, that is, the repeated particular, personal, and direct interest shown by Mr. Nombre81321 before the Dirección General del Servicio Civil, aimed at having him take the extraordinary exam, as well as another lawyer close to him, which placed them—in this sense—on a preferential plane, in itself, in breach of the duty of probity (deber de probidad) in the exercise of the powers and functions conferred as an authority in a hierarchical degree, which supposes—contrary to what occurred—the pursuit of the general interest, with objectivity, equality, impartiality, transparency, rectitude, loyalty, good faith, and trust, for which he became deserving of the authorization of his dismissal, ordered by resolution number 12479 of the Tribunal de Servicio Civil, at 20:35 Hrs., of June 5, 2015; confirmed by judgment number 001-2016-TASC at 11:30 Hrs. of January 14, 2016, of the Tribunal de Servicio Civil, and, therefore, by the Executive Branch, for loss of objective trust.\n\n**IX.- COROLLARY:** By reason of all the foregoing, which entails dismissing, as the main claims are indeed denied —numbers 1, 2, 3, 4, and 5— the claims 5, 6, and 7 are also rejected, due to their accessory nature, seeking payment of all his labor rights suppressed by said dismissal, including salary increases for any concept, payment of Moral Damages, —subjective—, and payment of both court costs of the proceeding, as well as interest on the items granted and currency indexation on these. Note: It should be reiterated that Mr. Nombre81321 waived his reinstatement and the payment of lost wages. Consequently, the claims seeking the declaration of nullity of the procedure, the declaration of the statute of limitations on the disciplinary action, the declaration of nullity of the dismissal, and of the acts that ordered it are dismissed; and, therefore, due to their accessory nature, the remaining compensatory claims of the complaint. By reason of which it must be declared inadmissible in all its aspects. For the reasons stated —which are deemed sufficient—, the remaining assertions of the complaint are dismissed as useless and inconsequential. As a corollary of the foregoing, it is appropriate to dismiss the arguments presented by the representative of the plaintiff, as is hereby ordered.\n\n**X.- ON THE DEFENSES:** The State raised the defenses of lack of passive and active legal standing (falta de legitimación ad causam pasiva y activa), lack of right (falta de derecho), and lack of current interest. Fernando Rodríguez Garro raised the defense of lack of current interest, lack of passive legal standing, and lack of right (falta de derecho). The Dirección General del Servicio Civil raised the defense of lack of right (falta de derecho). The defense of lack of right, raised by all co-defendants, must be upheld because the complaint found no support in the legal system. By reason of which a ruling is omitted, as unnecessary, regarding the other defenses raised by the co-defendants.-\n\n**XI.- ON COURT COSTS.** By express provision of Article 193 of the Code of Administrative Contentious Procedure, it is appropriate to order the plaintiff to pay both court costs of this action by the mere fact of having been the losing party in this proceeding, without there being reasons given by the plaintiff or determined by this Tribunal that justify their exoneration pursuant to subsections a) and b) of the cited Article 193. Therefore, both court costs of the proceeding are imposed on the plaintiff.\n\n**POR TANTO**\n\nThe defense of lack of right is upheld. The complaint is declared inadmissible in all its aspects. The plaintiff is ordered to pay both court costs of the proceeding.\n\nNotify.- /Ronaldo Hernández Hernández/Eduardo González Segura /Bernardo Rodríguez Villalobos.- \n\n \n\n \n\n \n\n\"VII.- CASE THEORY: In SUMMARY the plaintiff's legal theses are as follows: Procedural nullities causing the nullity of the final act: 1) Based on articles 160 and 162 of the Código Tributario and 17 in fine of the Reglamento de organización, funciones y procedimientos del Tribunal Fiscal Administrativo Nombre20572 omission of the prior ordinary administrative procedure of the L.G.A.P. 2) Based on articles 76 and 77 of the Reglamento Autónomo de Servicios del Ministerio de Hacienda, Nombre20572 omission of the prior consultation with the Ministry's Junta de Relaciones Laborales. 3) Omission to receive the statement of Mr. Howell, Viceministro de Ingresos, without any basis or reason, violating due process and the right of defense. Prescription of the disciplinary action for the alleged offenses. Based on article 603 of the Código de Trabajo and 99 of the Reglamento del Estatuto de Servicio Civil. And on the fact that the employer had direct knowledge of the grounds for its dismissal petition since years before the initiation of the proceeding. Disproportionality between the facts underlying the dismissal request and the applied sanction. Which Nombre20572 based on the importance —economic and legal— of the function performed by Mr. Nombre84999, as President of the T.F.A., his international recognition, his life of honesty and excellence in his management, with a clean record; his career, activity and importance in the service; and, because the acts were not executed with fault or intent, were never consummated and do not constitute a crime or nepotism. Crimes against probity: Nombre20572, was accused of committing crimes under the Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, but none of the facts supporting the dismissal fit the criminal legal definition of the crimes stipulated in Chapter V of that Law (articles 45 to 62), nor do they conform to the exhaustive list of causes for which removal can proceed, according to article 162 of the Código Tributario. Reassignments requested by Hacienda: Nombre20572, were due to a government need, for lack of personnel in the TFA, at the request of the Viceministro de Ingresos, among which was the son of Mr. Nombre84999 whose eventual (not executed) reassignment to the Tribunal was proposed through the signature and countersignature of several heads, since previously the act had originated from and been processed and authorized by other dependencies. His transfer was not requested or managed by Mr. Nombre84999 unilaterally or whimsically, taking advantage of his position. It was the Ministry's Administration that requested the designation. The request for examinations: It was with the intention that they could be assessed through examinations, so that, if they passed, they could be considered as eligible to form a shortlist of substitutes, who would perform the judicial function in case any of the sitting Judges, for whatever reason, was absent. It could not have been held by his son, due to a kinship relationship with Mr. Nombre84999, until he retired. He highlights the academic virtues of his son. Therefore, it cannot be assumed nepotism or influence peddling, since Mr. Nombre84999 did not use his position to place a son in a plane of preference over others. The appointment is made by the Poder Ejecutivo, not Mr. Nombre84999. He was never appointed in the T.F.A., so there was no direct and harmful injury to the detriment of the Administration. Moreover, suitability examinations have never been conducted for such purposes.\n\nVIII.- CRITERION OF THE TRIBUNAL: Having analyzed the arguments of the parties and reviewed the basic legal framework and the evidentiary content of the case file, the Tribunal determines that the lawsuit lacks legal basis and must be dismissed, for the following reasons:\n\nON PROCEDURAL NULLITIES CAUSING THE NULLITY OF THE FINAL ACT: The alleged defects are rejected, for the following reasons:\n\nA) ON OMISSION OF THE PRIOR ORDINARY ADMINISTRATIVE PROCEDURE OF ARTICLE 308 OF THE L.G.A.P. This alleged omission is based on articles 160 and 162 of the Código Tributario and 17 in fine of the Reglamento de organización, funciones y procedimientos del Tribunal Fiscal Administrativo. On the basis that the T.F.A. is independent from the Poder Ejecutivo. From which it follows that Mr. Nombre84999 is not an employee of the Ministerio de Hacienda, he has a special legal privilege of job stability. His removal occurs only through non-reelection, at the end of the period and provided that the commission of one of the causes in numeral 161 of the Código Tributario has been verified. Therefore, the prior, ordinary administrative procedure of article 308 of the LGAP should have been carried out. The allegations —affirmations of \"facts\" 3 to 17—, to which we refer, are rejected as inadmissible, based on the considerations on the matter, already outlined in judgment No. 119-2016-VII, of 14:45 hours on November 29, 2016, of Section VII, which this Section II of the Tribunal shares, which are as follows: \n\n \"V.- GENERALITIES ON THE TRIBUNAL FISCAL ADMINISTRATIVO.Given the controversy heard here, by virtue of the position held by the plaintiff as President of said administrative body, and because he considered that he was not subject to any disciplinary regime, due to the autonomy and independence he held by reason of his office, this Chamber deems it necessary to make a normative recount of the main postulates of our legal system that address the issue, including the legal nature of the cited body and the employment regime of its officials, which will lead us to the conclusion that the plaintiff's assessment is erroneous. Thus, it is worth noting firstly that the Tribunal Fiscal Administrativo was created by Law N° 3063 of November 14, 1962, \"Reforma a la Ley de Impuesto Sobre la Renta de 1946\", whose article 34 expressly stated, for what is of interest here, the following: \"The Tribunal Fiscal Administrativo de la Tributación Directa is created, which will hear on appeal: a) Claims filed by income and territorial tax taxpayers, dissatisfied with the resolutions issued by the Departamento de Impuesto sobre la Renta or with appraisals of their real property to determine and settle taxes and sanctions; and b) Other functions entrusted to it by law. The Tribunal Fiscal Administrativo shall be a full-time Tribunal, composed of two Attorneys, a Civil Engineer, an Agricultural Engineer and a Certified Public Accountant, persons who by reason of their background, professional titles and recognized competence in the matter, guarantee impartiality and accuracy in the performance of their duties. The members of the Tribunal shall be appointed by the Poder Ejecutivo for a four-year term, and may be reelected (...)\". [the bolding is supplied]. In turn, it was in the Código de Normas y Procedimientos Tributarios, created by Law N° 4755 of May 3, 1971, where its legal nature was established, by indicating in canon 149 the following: \"Jurisdiction and competence. Tax controversies must be decided by the Tribunal Fiscal Administrativo created by law Nº 3063 of November 14, 1962, which henceforth must be governed by the provisions contained in this Chapter. Said Tribunal is an organ of full jurisdiction and independent from the Poder Ejecutivo in matters of its competence, whose rulings exhaust the administrative channel (...)\" . [emphasis supplied].\n\nToday, in the current version of the [CNPT] Code, taking into consideration the reforms effected by the Tax Justice Law No. 7535 of August 1, 1995 and the Fiscal Contingency Law No. 8343 of December 27, 2002, we find the same postulate in article 158 of the CNPT, reaffirming for what interests us here, that: \"(...)Said Tribunal shall be a body of full jurisdiction and independent in its organization, operation, and competence, from the Executive Branch and its decisions exhaust the administrative process (...)\". [emphasis supplied]. For its part, article 160 of the CNPT regulates matters relating to the composition of the Tribunal and the requirements of its members, establishing: \"The Administrative Fiscal Tribunal is composed of the specialized chambers that are established by the Executive Branch, which shall be composed of three full members; among them the president shall be elected (...) The Executive Branch shall appoint a list of attorneys, civil engineers, agronomists, public accountants, or other professionals who meet the same requirements as the full members, to replace them in cases of temporary absences, impediments, or recusals, in accordance with the procedures regulated in the aforementioned Regulation. Likewise, the Tribunal shall have a president who shall be appointed from among the presidents of each chamber and by the presidents themselves, and the administrative personnel necessary for its proper functioning, appointed by the former in accordance with the regulations of the Civil Service Statute\". [emphasis is our own]. Additionally, article 161 of the cited Code establishes that: \" The Executive Branch must individually designate the full members and the alternate members of the Administrative Fiscal Tribunal, after a competitive background review (concurso de antecedentes), which must be formally carried out with the intervention of the authorities established by the Civil Service Statute. The formalities and the substantive provisions set forth in that regulation shall likewise be observed for the removal of the members of this Tribunal (...)\". [emphasis supplied]. Precisely, article 162 of the same legal text regulates the grounds for removal, such as inefficient performance of their duties, misconduct in the performance of their positions, or repeated negligence that delays the processing of cases, among others, this being a power of the Executive Branch. Furthermore, it is important to highlight article 163 of the CNPT, which regulates the actions of the Administrative Fiscal Tribunal, stating that: \"(...) must adjust its actions to the procedure and operating rules established in this Code, as well as in the General Law of Public Administration, the Code of Contentious-Administrative Procedure(*) and the Organic Law of the Judicial Branch, insofar as they are supplementarily applicable(...)\". (*) (according to reform effected by Law No. 8508 of April 28, 2006, Code of Contentious-Administrative Procedure). Finally, article 164 of the CNPT regulates the impediments, recusals, and prohibitions of the members of the Tribunal from hearing matters. For its part, in the so-called Regulation of Organization, Functions and Procedures of the Administrative Fiscal Tribunal, Executive Decree No. 32249-H of 10/22/2004, published in La Gaceta No. 48 of March 9, 2005 -applicable to the case since it was in force at the time of the facts heard here, despite its modification by Executive Decree No. 39697 of March 31, 2016-, matters relating to the composition of the members of the Administrative Fiscal Tribunal were regulated, and article 9 stated: \" The Executive Branch shall individually designate the full members of the Administrative Fiscal Tribunal, after a competitive background review (concurso de antecedentes), which must be formally carried out with the intervention of the authorities established by the Civil Service Statute and whose specialty shall be previously recommended by the President of the Administrative Fiscal Tribunal. When a permanent vacancy occurs, for any reason, or a new Chamber is created, upon a reasoned request from the President of the Administrative Fiscal Tribunal, the Minister of Finance shall request the General Directorate of Civil Service to open the vacant position for a competitive background review (concurso de antecedentes), for which it must publish the corresponding notices, indicating the requirements established for this purpose by the Law governing the matter and other legal and regulatory procedures required to apply for the competition. The formalities and the substantive provisions set forth in that regulation shall likewise be observed for the removal of the members of this Tribunal. [emphasis is our own]. Likewise, article 14 of the applicable Regulation -today article 13 -, establishes matters relating to the appointment of the President of the Administrative Fiscal Tribunal, where we find a provision similar to that contained in Law No. 4755, as we saw above, stating: \"Because it is a body of full jurisdiction and independent in its organization, operation, and competence from the Executive Branch, the Presidents of each of the duly constituted Chambers shall designate the President of the Administrative Fiscal Tribunal (...)\". For its part, in the former article 15 -today in 14- the powers and competence of the President of the Administrative Fiscal Tribunal are regulated, highlighting the following for what is of interest: \"(...) a) Resolve everything related to the efficient performance of this Collegiate Body. For this purpose, they may issue the corresponding directives regarding organization, operation, and everything related to the establishment of the disciplinary regime applicable to all officials of this Tribunal, in accordance with the Civil Service Statute, General Law of Public Administration and other legal and regulatory provisions that are supplementarily applicable by provision of articles 155 and 163 of the Code of Tax Norms and Procedures (...)\". [emphasis is not in the norm]. Similarly, regarding the dismissal of its members, article 17 -today 16- stated: \"The Executive Branch shall dismiss the members of the Tribunal , after verification of one or more of the following grounds for removal: a) Inefficient performance of their duties (...) f) Any other serious fault in the performance of their positions referred to in the Civil Service Statute, its Regulation, the Autonomous Service Regulation of the Ministry of Finance and article 81 et seq. and concordant articles of the Labor Code (...) The verification of the grounds mentioned in this article shall be carried out by means of an ordinary administrative procedure established by the General Law of Public Administration, ordered for this purpose by the Executive Branch, in which the fundamental guarantee of due process and all its integral principles shall be respected, especially the right of defense (...)\". [emphasis supplied]. From the harmonious combination of the norms just transcribed, this Tribunal clearly infers that, contrary to what Mr. Nombre84999 has maintained, all the members of the Administrative Fiscal Tribunal - full and alternate members- are not only appointed by the Executive Branch, after a competitive background review and following the rules of the Civil Service Statute, but can also be removed by said Branch of the Republic, when there is merit for it. To maintain the opposite would be to shelter impunity, which this Collegiate Body is not willing to condone. Therefore, it is clear that the dismissal regime contemplated in Chapter IX of the Civil Service Statute is applicable to any member of the cited Tribunal, whose article 43 states: \"Public officials may only be removed from their positions if they incur the grounds determined by article 81 of the Labor Code and 41, subsection d), of this law, or in acts that imply a serious infraction of this Statute, its regulations, or the respective Internal Labor Regulations (...)\". For its part, article 51 of said normative body states: \"Cases not provided for in this law, in its regulations or in its supplementary or related laws, shall be resolved in accordance with the Labor Code, the Social Security Law, the general principles of Civil Service, the principles and laws of common law, equity, local custom and usage (...)\". [bold is our own]. Having explained the foregoing, the plaintiff seems to confuse the independence in office that the legal system regulates, regarding the organization, operation, and competence of the Administrative Fiscal Tribunal with respect to the Executive Branch in the matters within its competence, that is, regarding the resolution of tax cases submitted for its consideration, and the administrative and disciplinary controls - not hierarchical - that can and must be exercised over decentralized bodies. In this regard, our Constitutional Chamber has indicated, for example in its vote number 6866-2005 at 14:37 hours on June 1, 2005, that: \"(...)As opposed to proper hierarchy, there exists the so-called non-hierarchical control or improper hierarchy, so named because, in the cases where it applies, whoever hears and resolves on appeal is not the hierarchical superior but the instance expressly indicated by law; it is a legal and not a natural hierarchy. That non-hierarchical controller can be an administrative body that, generally, in our administrative legal system, takes the form of a highly decentralized body -single-phase improper hierarchy-, thus guaranteeing independence and impartiality by distorting -or practically eliminating- the hierarchical relationship and the exercise of an exclusive review competence (e.g., the Administrative Fiscal Tribunal regarding the resolutions of the Tax Administration, articles 156, 157, 158 of the Code of Tax Norms and Procedures (...)\". The foregoing, as understood by this Panel of Judges, is a logical consequence derived from the objectivity and impartiality with which all members of the Administrative Fiscal Tribunal must act, among them and especially its President, to prevent political criteria from influencing what is eventually resolved, thus achieving more coherent and reasonably sound resolutions from a technical-legal standpoint, as well as a greater degree of security, legal certainty, satisfaction, well-being, harmony, and social stability, but this independence could never include matters relating to the disciplinary regime of its members, on which the aforementioned law is also clear, providing that the formalities and the substantive provisions set forth in the Civil Service Statute shall likewise be observed for the removal of the members of the Tribunal, a provision likewise contained in the internal Regulation of said administrative body, stating that everything related to the establishment of the disciplinary regime applicable to all officials of such Tribunal shall be governed in accordance with the Civil Service Statute, the General Law of Public Administration, and other legal and regulatory provisions that are supplementarily applicable...\".\n\nBy virtue of which, there being no reason to change criterion, this Second Section concludes, with certainty, as in that judgment, that the President of the Administrative Fiscal Tribunal -Don Nombre84999-, was indeed subject to the disciplinary regime regulated by the Civil Service Statute. That the type of disciplinary procedure followed against him did not violate due process or his right of defense, since, as already analyzed, Don Nombre84999 was indeed subject to the provisions of the Civil Service Statute, and therefore, it was under the protection of its regulations that he should have been investigated. Finally - as indicated in that judgment-, this Tribunal deems it appropriate to clarify to the plaintiff, that the dismissal action requested by the President of the Republic jointly with the Minister of Finance, as well as its processing under the protection of the Civil Service Statute, are not contrary to the law, precisely because as stated in the preceding whereas clause (considerando), we consider that the plaintiff was indeed subject to the disciplinary rules and procedures regulated in said normative body, the Regulation mentioned by him -Decree 32249-, being merely a complementary and inferior norm that cannot contradict the Law, besides the fact that as President of the Administrative Fiscal Tribunal, despite his autonomy and independence to resolve, he was subject to non-hierarchical control and to management and government policies, because this Tribunal is a decentralized body within the administrative structure. Without his having the special immunity (fuero) he alleges. By reason of all the foregoing, the claims identified with numbers 1 and 3 must be rejected as unfounded.\n\nB) ON THE OMISSION OF PRIOR CONSULTATION WITH THE LABOR RELATIONS BOARD OF THE MINISTRY. This defect is asserted based on articles 76 and 77 of the Autonomous Service Regulation of the Ministry of Finance. The argument in this regard - affirmation of \"fact\" number 14-, is rejected as unfounded, for the following basic reasons: Articles 76 and 77 of the Autonomous Service Regulation of the Ministry of Finance -Executive Decree No. 25271 of 06/14/1996, only establish: \"Article 76.—A Labor Relations Board composed of three representatives of the Minister and three representatives of the union organizations that have affiliation within the Ministry shall function within the Ministry, who shall have the obligation to represent every official, whether or not affiliated with one of the organizations. The union representatives shall be designated by agreement of the respective Boards of Directors.\" (...) \" Article 77.—The Board shall be of a consultative nature and its purpose shall be the harmonious study of labor conflict situations, whether of an individual or collective nature, or of demands for social improvement for the benefit of the officials\". Then, in these articles it is not established, much less expressly, as argued, that it was the Administration that had to make - ex officio- the corresponding prior consultation to the Labor Relations Board. Consequently, it is not the defendants, as stated, but Don Nombre84999 who should have timely requested, in the constitutive phase of the procedure, before the issuance of the final act, the intervention of the Labor Relations Board of the Ministry of Finance. Which he did not do. His omission is not a source of nullity for his own benefit. This is reinforced by what is provided, subsequently, in articles 5 and 19 of the Regulation for the Functioning and Organization of the Labor Relations Board (published in La Gaceta No. 225 of November 19, 2015), regarding its purpose, in the sense that the Board has the character of a permanent and consultative body. Its main objective is to maintain social-labor peace, acting with absolute independence of judgment and balance of interests by those who compose it, as well as the harmonious study of labor conflict situations in which its intervention is requested or of demands for social improvement for the benefit of the workers. As well, insofar as it is indicated that, in accordance with the provisions of articles 76 and 77 of the Autonomous Service Regulation of the Ministry of Finance, \"...the Board shall have the following functions: a. To hear on consultation by any of the parties or by complaint, made in writing to the Board, any act, action, omission that may be considered an infraction of public employment and related laws, conventions, treaties, or aspects that may give rise to the alteration of harmonious relations between the parties. b. Without the need for a prior request: on unmet needs, for equipment, material or services, as well as on occupational health, safety and hygiene at work. c. To intervene, at the request of a party and issuing the respective recommendation, in disputes between officials, between these and the administration, the heads, directorates, whether at an individual or collective level. Except in dismissals for serious misconduct or for Workplace Harassment, Sexual Harassment or unfair labor practices. d. To promote the improvement of relations between the people of the institution.\". (underlining supplied). Furthermore, it is not a substantial formality of the procedure, whose correct performance would have prevented or changed the final decision in important aspects or whose omission caused omission (article 223 of the LGAP), since according to the case-law doctrine of the Constitutional Chamber, the recommendation of Labor Relations Boards is not binding on the Administration. By reason of the foregoing - and without the need for further comment- the claims identified with numbers 1, 2 and 3 must be rejected as unfounded.\n\nC) ON THE OMISSION TO RECEIVE THE STATEMENT OF THE FORMER VICE MINISTER OF REVENUE, MR. ESPINOZA HOWELL, WITHOUT ANY BASIS OR GROUNDS, VIOLATING DUE PROCESS AND THE RIGHT OF DEFENSE. The arguments - affirmations of \"facts\" 36 to 38-, are rejected as unfounded, as baseless, for the following basic reasons: It is true that the statement of Mr. Rowlan Espinoza Howell, former Vice Minister of Revenue, was timely offered as testimonial evidence. However, it is not true that it was not obtained without any basis or grounds. Nor, consequently, that due process and the right of defense were violated. As stated in the document dated March 19, 2015 -folios 230 to 236 of volume 1) of administrative file No. 16032- that witness was offered regarding the following facts: that he signed resolution RES-RP-64-2011, of October 19, 2011, that Don Nombre84999 also signed that resolution, that Don Nombre84999 was not requesting the relocation of his son, and that it was not carried out, as it was later rendered ineffective. Without greater significance, given the documentation of the majority of those \"facts\". In no way, regarding the issue of the statute of limitations (prescripción). Furthermore, the Tribunal finds no document indicating, much less repeatedly, that the summons of this former official should have been made by the General Directorate, on the basis that Don Nombre84999 lacked the capacity to do so. In any event, it is not a testimony for the Administration's case, but for the defense, of the investigated party, upon whom rested, then, the duty of locating him and delivering the summons notice, by virtue of the burden of his proof. Additionally, as stated in folios 237 to 239 of that same volume of the administrative file, Don Nombre84999 was notified of the resolution setting the time and date for the hearing of Mr. Espinoza Howell. Moreover, at folio 248 verso (248 A) of the file, it is recorded that the summons notices for witnesses were delivered, including that of Mr. Espinoza Howell.\n\nA different matter is, as recorded on folio 271 of volume 2 of the administrative case file, that the representative of Mr. Nombre84999 informed the investigation that it had not been possible to summon said witness, as he was no longer a public official. Or, as recorded on folio 296 of that same volume of the administrative file, that in view of the foregoing, the representative of Mr. Nombre84999 requested his substitution with Mr. Méndez Murillo, so that he could testify regarding the same facts. For which he requested a new hearing date. The fact is that Mr. Espinoza Howell did not appear.\n\nHence, by an evidentiary ruling (auto de instrucción) of April 9, 2015, it was considered and ordered that he had already been summoned by a prior resolution; that he had not appeared at the appointed time and date; and because the record only contains a document sent by the respondent's representation alluding to the impossibility of summoning the witness and the non-appearance of the mentioned witness, said testimonial evidence is declared impossible to produce (inevacuable) (folio 97, volume 2 of the administrative file). Hence also, by an evidentiary ruling (auto de instrucción) of April 9, 2015, it was ordered that the incorporation of a new witness who was not added or requested at the appropriate procedural stage, that is, in an untimely manner, was not to be accepted (folios 300 and 301 of volume 2 of the administrative file). Therefore, it is not true—and for that reason it is rejected—that his substitution request was not addressed. A different matter is that it was denied. Which was done, as was the declaration of impossibility to produce the evidence, in a reasoned manner. Based on the foregoing—and without needing further comment—the claims identified with numbers 2 and 3 must be rejected as inadmissible (improcedentes).\n\n**ON THE STATUTE OF LIMITATIONS (PRESCRIPCIÓN) OF THE DISCIPLINARY ACTION FOR THE CHARGES IMPUTED:** Article 603 of the Labor Code (Código de Trabajo), in force at the time, established: *The rights and actions of employers to justifiably dismiss workers or to discipline their faults prescribe in one month, which shall begin to run from when cause for the separation arose or, as the case may be, from when the facts that gave rise to the disciplinary correction were known.* In accordance, Article 99 of the Regulation of the Civil Service Statute (Reglamento del Estatuto de Servicio Civil) - Executive Decree No. 21 of 12/14/1954 -, establishes: *\"The following shall prescribe in one month: a)... b)... and c) The actions of the Ministers to initiate the dismissal proceedings (gestión de despido) of regular public servants for just cause and to impose disciplinary corrections authorized by law and internal labor regulations, from the day the cause for the sanction arose, or, as the case may be, from when the corresponding facts or faults were known*. (underlining added). Ergo, there are two premises from which the commencement of the timeframe for the competent authority to process the proceeding fits: From when the facts or faults occur, or from when they are brought to the attention of the competent body for holding the sanctioning power. And said body is in an effective position to act, that is, in the case of the statutory regime, to initiate the dismissal proceeding before the Directorate General of Civil Service (Dirección General de Servicio Civil). The **first fault imputed** was for the resolution of the transfer—reassignment (reubicación)—of Mr. Nombre85000 to the T.F.A. authorized and signed by his father, Mr. Nombre84999, as President of the T.F.A. And the **second** was for intervening before the DGSC seeking that extraordinary examinations be given to two persons, one of them his son, in order to be placed on the eligible list for member of said tribunal. Acts that were reported to the Vice Minister of Revenue, Rodríguez Garro, and as a result of which, after an investigation to compile the case file, the Executive Branch proceeded with the dismissal proceeding. Indeed, according to the proven facts and background, numbers 3 and 4, we have that between **November 27, 2014,** the date on which the Vice Minister of Revenue received from the anonymous complainants the copy of official letters TFA-PRES 026-2012, TFA-PRES-053-2013, TFA-PRES-100-2013, and an indication of the file where resolution RP-064-2011 was located—and **December 18, 2014**, the date on which Mr. Nombre84999 was notified of resolution No. AJD-RES-487-2014, from the Directorate General of Civil Service, in which the procedure was considered as instituted and the charges were imputed to him, the statute of limitations period alleged did not elapse. Furthermore, in accordance with the **Regulation to the Law Against Corruption and Illicit Enrichment in Public Office (Reglamento a la Ley Contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública)** - Executive Decree No. 32333 of 04/12/2005 -, specifically its Article 11, on *\"Filing of complaints\" (Presentación de las denuncias)*, which, in relevant part, establishes that (...) *The competent body shall examine, within a reasonable time, the admissibility of the complaint, issuing the respective act, (...) rejecting it or admitting it. Complaints filed must be registered in such a way that the citizen and the Administration can identify them and follow up on them easily and in a timely manner. (As amended by Article 1, subsection b), of Executive Decree No. 34409 of February 27, 2008);* and its Article 13, on *\"Anonymous complaints\" (Denuncias anónimas)*, which establishes that: *\"No process shall be given to complaints that are filed anonymously. In exceptional cases, a preliminary investigation may be opened ex officio, when evidence elements that merit it are received therewith. Otherwise, the respective authority shall order its archival without further process\"*, in the present case, for the same reason, a preliminary investigation was necessary, consisting, at least, of locating and certifying the received, mentioned, and related evidence elements, for purposes of a merit examination; and therefore, to support the request for opening the administrative proceeding, as was done, within a reasonable time, by the competent body, in this case, the Executive Branch (President of the Republic and Minister of Finance). Ergo, counting from the complaint received in the Office of Vice Minister Rodríguez Garro and the compilation of the respective case file, and the date on which the heads with the competence to manage the dismissal had **qualified or sufficient** knowledge, the statute of limitations alleged did not operate. In this understanding, the Civil Service Tribunal (Tribunal de Servicio Civil) essentially ruled, and the Administrative Tribunal of the Civil Service (Tribunal Administrativo del Servicio Civil) confirmed. Which is confirmed, now, by this Second Section of the Tribunal.\n\n**The arguments against this—statements of facts 18) to 35)—, to which we refer, are rejected as inadmissible (improcedentes), for the following reasons:** The assertion that *\"the State\"* had knowledge, notice, and information of the specific acts categorized as faults since October 2011, is rejected as generic, since \"The State\" is not a natural person, but a legal one, and therefore does not have knowledge, as such, but rather through its organs. Particularly through its competent organs. In this case, and as stated, by the Executive Branch (President of the Republic and Minister of the relevant branch). In the same vein, the supposed knowledge of the faults within the *\"high spheres of the State\"* is rejected. The assertion that the \"Ministry of Finance\" had knowledge, notice, and information of the specific acts categorized as faults since October 2011, is also rejected as generic, since it is also not a natural person, but a constitutional organ. Composed of the Minister, the natural person designated as such. Furthermore, having notice and information is not enough, but rather knowledge. And not just any knowledge, but sufficient and qualified knowledge, for the merit examination. For which—we maintain—, the complaint alone is not sufficient, especially if it is anonymous, but rather the receipt, together with it, of evidence elements, of merit, for its admission or rejection; so that the competent body, in this case, the Executive Branch (President of the Republic and the Minister of Finance), is in an effective position to initiate the dismissal proceeding before the Directorate General of Civil Service. The assertion that the Vice Minister of Revenue, Fernando Rodríguez Garro, had knowledge, notice, and information of the specific acts categorized as faults since October 2011, is rejected as inadmissible (improcedente) and unfounded, since it is not accredited or demonstrated that said gentleman was appointed as Vice Minister of Revenue in October 2011. Ergo, the Tribunal does not understand how he could have known since then. Even less so, regarding resolution RES-RP-63-2011 of October 19, 2011, on the permanent reassignment (reubicación) of position No. 013358, from the Internal Revenue Administration - Internal Revenue Management program, Budget Code 206-134-02-01-0001, to the Fiscal and Customs Tribunals Program - T.F.S. 206-135-01-01-01-0001, effective as of October 20, 2011, a position held by the son of Mr. Nombre84999. That resolution was neither authorized nor signed by the subsequent Vice Minister of Revenue, Mr. Rodríguez Garro. By virtue of which the assertion that said Vice Minister of Revenue *must* have been aware of that resolution, simply because it was contributed together with the Dismissal Proceeding, is rejected as unfounded. In any case, the authorization and signing of his son's transfer by reassignment (reubicación) was only one of the grounds for the two imputed faults. It is acceptable that said resolution was signed by the then Vice Minister of Revenue, Rowland Espinoza Howell, on that same day, October 19, 2011. However, it cannot be omitted that it was authorized and signed, also and previously, by Mr. Nombre84999, as administrator of the Program, as President of the T.F.A. And by his son, as a sign of consent. Nor can it be omitted that it was authorized and signed by Mr. Nombre84999, even though he knew that the official they were going to permanently reassign was his son. Furthermore, nowhere in the case file—judicial or administrative—is it recorded that Mr. Nombre84999 had informed the Vice Minister of Revenue of this, in advance. It is this incorrect conduct in the performance of his position as President of the T.F.A. that is attributed to him. Be that as it may, it is neither understandable nor justifiable that a public servant with the authority of Mr. Nombre84999, and given his status as a Law Graduate (Licenciado en Derecho), with years of expertise in legal matters, and above all, with years of service in the Public Administration, would ignore the legal impediment to his son becoming part of the T.F.A., as provided in subsection b) of Article 9 of the Regulation of the Civil Service Statute (Reglamento del Estatuto de Servicio Civil), even more so that apart from the prohibition established in the regulations, the kinship relationship was evidently known to Mr. Nombre84999, despite which, he consented to the process in question by authorizing and signing the reassignment (reubicación) resolution. It was only subsequently that it was rendered void by resolution RES-RP-68-2011. But not by Mr. Nombre84999's initiative, but due to the warning from the Deputy Director of Taxation, after being informed—not by Mr. Nombre84999, but by the Legal Advisory Office—of the impediment due to the kinship relationship. Hence, even though the reassignment (reubicación) was rendered void, Mr. Nombre84999's conduct constituted an act that was not only irregular given his condition as President of the T.F.A., but also contrary to the fundamental principles and pillars that inspire and regulate his service relationship with the Administration, which is highly reprehensible. The Civil Service Tribunal (Tribunal de Servicio Civil) essentially considered it so, and this Section of the Tribunal endorses it. Furthermore, as we pointed out, that resolution was not issued by the \"Ministry of Finance\", but by the heads of the two corresponding budget administrative programs. Which is different. That is: it was authorized and signed by the then Vice Minister of Revenue; but also, by the then President of the T.F.A. Which presupposes assent—and prior agreement—from both administrative heads. Thus, although it is not an act emanating exclusively from the T.F.A. and/or from Mr. Nombre84999's office, it is not a resolution carried out, properly speaking, by the Ministry either. In this sense, it is rejected that it was the Office of the Minister or Vice Minister who made the reassignment (reubicación). And, therefore, that it was the Office of the Minister or Vice Minister who rendered it void days later. On the other hand, the request made by the Deputy Director of Taxation through official letter SGT-109-2011 was only for the preparation of that transfer resolution. Which is different (folio 26 of the administrative file). Based on the foregoing, the assertion that it was the Vice Minister himself, in the person of Fernando Rodríguez Garro, who, three years later, without investigating the events that occurred and the existing documents and resolutions, ignores the content and scope of resolutions RES-RP-64-2011 and RES-RP-68-2011, in order to consider one of the two grounds for dismissal as constituted, is rejected as unfounded. Indeed, it was not that ministerial body, properly speaking—regardless of the natural person occupying it—, but rather the Executive Branch (the organ Ministry of Finance jointly with the organ Presidency of the Republic), after prior investigation—location, certification, and qualified knowledge—of the content and scope of the evidence elements, among them, resolution RES-RP-64-2011, who finally managed, as the competent body, his dismissal, based on said conduct; in addition to other acts, the basis of the second imputation. For which reason, the testimony given by the witness, Ms. Rocío Espinoza Navarro, in the administrative proceeding, to the effect that, when asked: *\"At what moment did the heads of the Ministry of Finance learn that Mr. Nombre84999 signed that resolution?\"* said witness responded: *\"I do not know the exact moment they learned, but I can state that the Vice Minister of Revenue at that time signs the resolution after Mr. Nombre84999, therefore he learns of it at that moment.\"*, is rejected as useless and inconsequential (inconducente). It is acceptable that prior to its signature—by the heads of the respective administrative programs for revenue—, the reverse side of resolution RES-RP-64-2011 of October 19, 2011, already showed that it had been prepared by a legal advisor, with the approval (visto bueno) of the Coordinator of the Legal Advisory Office, the Deputy Administrative Financial Director, and the Director of Human Resources. As well as its later receipt in this Department, on October 21, 2011. However, Mr. Nombre84999 does not demonstrate—nor does the Tribunal understand—in what sense he claims that all of them are *\"employer representatives\"*, given that they are subordinate auxiliary personnel—in functions of mere technical, legal, and administrative processing—who do not express—nor therefore commit—the final legal will of the Administration. By virtue of which, the statute of limitations (prescripción) argument is rejected, on the basis that they had knowledge of the facts—in this case, of that resolution—since October 2011, and therefore 3 years elapsed until they filed the \"dismissal proceeding\". It is true that said resolution was rendered void by Resolution RES-RP-68-2011 of November 8, 2011. Now then, this second resolution was not signed only by the then Vice Minister of Revenue of Finance, Mr. Espinoza Howell, but also by Mr. Nombre84999, as President of the T.F.A., as the administrative head of the Tribunal's budget program. Be that as it may, Mr. Nombre84999 does not explain—nor does the Tribunal understand—what relation this has with the statute of limitations (prescripción) argument. In any case, we reiterate, it was not the Ministry of Finance, the initiator of the administrative dismissal procedure, that signed resolutions RES-RP-64-2011 and RES-RP-68-2011. On the other hand, it is true that there exists an anonymous complaint, from a citizen, dated January 9, 2013—a 4-page document—, addressed to the Ethics Prosecutor (Procurador de La Ética), the Office of the Comptroller General of the Republic (Contraloría General de La República), the Directorate General of Civil Service (Dirección General de Servicio Civil), and the Human Potential Management Directorate (Dirección de Gestión de Potencial Humano) of the Ministry of Finance, with a copy for the Ministry's internal audit and the Political Control Commission of the Legislative Assembly. And it has a receipt stamp, dated January 16, 2013, from the Human Potential Management Office of the Ministry of Finance (folios 90-93 of the administrative case file, Volume 1). However, the derivation that the same facts had already been brought to the knowledge of the \"employer\", founded on that document, is rejected as inadmissible (improcedente) and biased. That document cannot be interpreted in a biased or incomplete manner. Said document expressly indicates that the complaint is regarding the appointment resolution **No. PRES-001-2012—the only one of which a copy was attached—**, where Lic. Nombre85001 is designated as the processing attorney for the Presidency of the T.F.A.\n\nAn act regarding which a detailed account of its alleged irregularities is provided and Article 54 of Law 8422, on influence peddling (tráfico de influencias) that would be being violated, is transcribed. That act being, in particular, the one regarding which nearly three pages of arguments are dedicated and employed, concerning its accused irregularity. It was not until after the foregoing that this document tangentially states that: *\"...It is not superfluous to mention that this situation of irregular appointments is not new in the Tribunal (sic), since in 2011, as can be corroborated in the respective personnel files, Mr. Rodríguez had already attempted to commit another similar unlawful act, when he proceeded to appoint as an official of the Tax Tribunal (Tribunal Fiscal) his son, Mr. Nombre85000, who is currently an official of the Directorate of Large National Taxpayers (Dirección de Grandes Contribuyentes Nacionales), which had said appointment been formalized would have resulted in a direct hierarchical relationship between father and son, although to date it has not improved much either because Mr. Nombre85000 is also a resolution lawyer for the cases that said Tax Administration refers to the Tribunal. All of this act of corruption remains unpunished to date because the respective resolutions were simply annulled, without establishing greater responsibility on those who had made this corrupt decision...\"* (...) *\"...The objective of this complaint is that the competent authorities carry out the investigations that are legally appropriate to determine the unlawfulness of the acts described herein, and that the corresponding disciplinary and judicial responsibilities be established against the officials allegedly involved, this with the aim of maintaining correct performance of duties in the exercise of public office (...) and preventing acts of corruption that give way to the continued making of appointments to government positions in an arbitrary manner, without respecting the respective eligible candidates lists (registros de elegibles), in addition to avoiding any economic damage that this may represent against the Public Treasury (Hacienda Pública) and the credibility of the officials who have the privilege of exercising public office.\"*. In any case, that anonymous complaint does not specify the number, date, or exact details of the appointment of Mr. Nombre85000 as an official of the Tax Tribunal, besides which no evidentiary element is provided in that regard, unlike the other specifically and concretely denounced act, which is the appointment designating Lic. Nombre85001 as processing lawyer of the Presidency of the Administrative Fiscal Tribunal (T.F.A.), regarding which the resolution number and year are precisely indicated and the evidentiary element is attached. Consequently, it was only with respect to this single legal act that said anonymous complaint could legally be—and was—processed.\n\nThis is corroborated by official communication DGPH-AO-019-2013 of January 25, 2013—which Don Nombre84999 invokes—in which the Acting Director of Human Resources of the Ministry responds to—and informs—Minister Ayales Esna of aspects he consulted from the aforementioned anonymous complaint, with respect to the issuance of Resolution No. PRES-001-2012 dated October 30, 2012, signed by Mr. Nombre84999 in his capacity as President of the Administrative Fiscal Tribunal, by which it was resolved to designate Mr. Nombre85001 as Processing Lawyer of the Presidency of the T.F.A. For which reason it is rejected, as useless and inconsequential, whether or not the Ministry had a copy of that anonymous document, as well as the declaration, in pertinent part, made in the administrative venue by the interested party himself, that is, by the witness, Nombre85001, to the effect of having known of the same *\"...because in an anonymous document also submitted to Human Resources that was elevated to the Minister's office and the Executive Branch (Poder Ejecutivo) (sic), which caused an ordinary procedure to be initiated, to annul administrative acts of operation and organization issued by the Presidency of the Tribunal, which it should be noted had a favorable pronouncement from the Attorney General's Office (Procuraduría) in my favor, mention had already been made of these facts and others. (...) It was at the beginning of the year 2013, I spent all of 2013 in an administrative procedure (...) I do specify that it spoke of illegal appointments of myself and of Nombre85000, he was named such so it was illegal, appointments in the Tax Tribunal.\"*. We insist, from the content of Official Communication DGPH-AO-019-2013 of January 25, 2013, it is clear, contrary to what was indicated by Don Nombre84999, that it was only with respect to that appointment of the witness himself, Lic. Nombre85001, that the aforementioned complaint was brought to the Ministry's attention at that time. Be that as it may, its content shows that it involves facts—and classifications—different from those investigated and sanctioned in the dismissal proceeding—file exp. Placa13651—.\n\nRegarding the second offense (falta), according to the proven fact No. 2, we have that: It does not involve hypothetical official communications directed to the General Directorate of Civil Service (Dirección General de Servicio Civil) for the administration of suitability examinations. Nor mere recommendations. It is true that they are official communications from the year 2012 and the year 2013 (T.F.A.-PRES-026-2012, dated June 19, 2012, T.F.A.-PRES-053-2012, dated May 29, 2013, T.F.A.-PRES-054-2012, dated May 29, 2013, and TFA-PRES-100-2013, dated November 14, 2013). The assertion that the only one of the letters included in the \"dismissal\" request that bears his signature is TFA-PRES-100-2013 of November 14, 2013, is rejected, as improper and unfounded, because: Official Communication T.F.A.-PRES-026-2012, dated June 19, 2012, bears the original signed stamp of the President of the Tribunal, the stamp of the Tax Tribunal, and the receipt stamp of Recruitment and Selection (Reclutamiento y Selección) on June 21, 2012. Official Communication T.F.A.-PRES-053-2012, dated May 29, 2013, bears the signature of the President of the Tribunal and the stamp of the Tax Tribunal, and the receipt stamp by the General Directorate -DGSC- on May 29, 2013). And Official Communication T.F.A.-PRES-054-2012, dated May 29, 2013, bears the original signed stamp of the President of the Tribunal, the stamp of the Tax Tribunal, and the receipt stamp by the General Directorate DGSC, on May 29, 2013. Besides which they have not been alleged to be false nor declared false. Consequently, it is rejected that they could not be taken into account with evidentiary value. Much less, for being ineffective and lacking validity. Being useless, because it is inconsequential, for the reasons stated, whether or not Lic. Nombre85000 is included in the examination request of the last Official Communication TFA-PRES-100-2013, dated November 14, 2013.\n\nThere is no doubt of the impropriety of Don Nombre84999 directly managing the application of extraordinary tests for his son Nombre85000 so that he would be included on the eligible candidates list (registro de elegibles) for Members of the Administrative Fiscal Tribunal, taking into account that as of that date his son was not his subordinate, as he was working in another budgetary program, namely in the Directorate General of Direct Taxation (Dirección General de Tributación Directa), in the Large Taxpayers office, which was accredited at the documentary level. In any event, Don Nombre84999 had no reason to make this type of requests that tarnish the institutional image, since if there was a need to complete the eligible candidates list for Members of the T.F.A. or there was no adequate registry of suitable persons to apply for a possible position as a Member of said Tribunal—which is not deduced from the evidence provided—the truth is that what Don Nombre84999 should have processed, in coordination with the General Directorate of Civil Service and the Ministry of Finance (Ministerio de Hacienda), was a competitive examination (concurso) so that all interested parties who met the required requirements could appear for said process, and not to make a request for extraordinary tests for the persons expressly indicated and defined by Don Nombre84999; particularly for his son. If the cited officials had an interest in participating in or entering the eligible candidates list, on their own they should have, like any citizen, whether a public servant or not, gone to the corresponding channels provided, that is, the General Directorate of Civil Service, and made the respective request or inquiry, or accessed the website of said Office to stay informed of current competitive examinations. Don Nombre84999, for his part, should have abstained from that type of practice that has been so harmful and damaging in public management and totally contrary to the merit-based system and competitive examinations under equal conditions that the Civil Service Regime (Régimen Estatutario) protects and safeguards. Furthermore, if—as he himself indicates—while he was a Member of the T.F.A., his son, even if he passed the respective tests, could not be considered for membership in that Tribunal, then it is even less justified for Don Nombre84999 to have intervened and insisted before the General Directorate of Civil Service that said extraordinary tests be administered to his referred individuals, among them his son. Such conduct evidences and manifests a greater personal interest, alien to the public purpose that the Administration must safeguard, because on what grounds, and with what impartiality, could one person be put ahead of or prioritized over others, what parameter of suitability could justify this type of request, without incurring in inequality, to sustain as transparent this type of action, moreover unnecessary, given that any interested party on their own could take steps to apply for the respective competitive examinations. This is what the Civil Service Tribunal (Tribunal de Servicio Civil) essentially considered, and this Section of the Tribunal endorses it.\n\nRegarding the fact that the grounds attributed to him are not among the exhaustive grounds for removal, removal being for non-reelection, of the Tax Code (Código Tributario), nor in any criminal figure, of those typified in the Law Against Corruption (Ley contra la Corrupción), this is not a simple cause for removal; Don Nombre84999 forgets that he is a public servant and performs in an employment relationship where the State, as his employer, must ensure that its subordinates' actions conform at all times to legal and regulatory norms. Ergo, it is not a simple cause for removal, but a serious misconduct, constituting grounds for dismissal without employer liability (despido sin responsabilidad patronal), subsumable under the duty of probity (deber de probidad)—not a crime—of Article 3 of that same Law, by virtue of what has been stated. It must be accepted that the General Directorate of Civil Service has \"governing\" (rectora) functions over the Human Resources of the Executive Branch, among others. However, the derivation that because of this, it is the employer representative for the purposes of applying the prescriptions alleged in this litigation is rejected, as improper and unfounded. The thesis presented is contrary to doctrine and jurisprudence. For which we refer, to avoid unnecessary repetition, to the previous considerations, regarding the Executive Branch, as the competent body to initiate the dismissal proceeding, for holding, precisely, the sanctioning power. Consequently, the argument of prescription (prescripción), based on the fact that from the date on which these other facts occurred and became known to the Civil Service Directorate until the moment of initiating the \"dismissal\" proceeding, more than one year elapsed, is rejected. By reason of the foregoing, the subsidiary claim number 3, regarding prescription of the disciplinary action, is rejected.\n\nREMAINING ARGUMENTS: Finally, it is argued: A) Disproportionality between the facts underlying the request for dismissal and the sanction that was applied: Due to the importance—economic and legal—of the function performed by Don Nombre84999, as President of the T.F.A., his international recognition, his life of honesty and excellence in his management; his career; And, because the acts were not executed with fault or intent (culpa o dolo), were never consummated, and do not constitute a crime or nepotism (nepotismo); B) Crimes against probity: Because he was accused of committing the crimes typified in Articles 45 to 62 of Chapter V of the Law against Corruption and Illicit Enrichment in Public Office, without any of the facts underlying the dismissal fitting the legal type, nor do they conform to the exhaustive list of causes for which removal, by non-reelection, may be proceeded with, in accordance with Article 162 of the Tax Code; C) Reassignments (reubicaciones) requested: Because they were due to a government need, for lack of personnel in the TFA, not by Don Nombre84999, in a unilateral or whimsical manner, using his position, but at the request of the Vice Minister of Revenue, including that of his son, whose eventual (not executed) reassignment was proposed—processed and authorized—with the signature and countersignature of several heads of department, by other dependencies; and, finally, D) Request for suitability examinations, so that, in the event of passing, they could be part of the eligible candidates list, constitute a shortlist of substitutes, and eventually substitute the Judges, which—he argues—would have been possible for his son, only, once his father retired, due to having a kinship relationship, for which reason it did not constitute nepotism or influence peddling (tráfico de influencias), due to his son's virtues; because Don Nombre84999 did not use his position to place him in a position of preference; because it is the Executive Branch who appoints; and, because he was never examined, so there was no harm to the Administration.\n\nIn relation to the foregoing, this Section of the Tribunal determines its impropriety, and therefore its rejection, for the following basic reasons: Dismissal without employer liability is proportional due to the greater weight and severity that the attributed and accredited offenses acquire precisely in light of the greater responsibility that, by principle, is demanded of Don Nombre84999, as an official, due to the importance—economic and legal—of his function, due to his high position as President of the T.F.A., and his long career. It was not the Administration but Don Nombre84999, with his acts, who ended up affecting—as he claims—his international recognition and his life of honesty and excellence in his management. Besides which, if looked at closely, Don Nombre84999 was not accused that the acts had been executed and consummated, nor that they constituted a crime or nepotism. Nor was intent (dolo) attributed to him, but rather administrative fault (culpa), for violation of the duty of probity. We reiterate, Don Nombre84999 was not accused of committing the crimes typified in Articles 45 to 62 of Chapter V of the Law against Corruption and Illicit Enrichment in Public Office, for which reason it is useless and inconsequential whether the facts or offenses underlying the dismissal fit or not within the legal type. Nor was he accused of engaging in the causes for removal of Article 162 of the Tax Code, by which removal, by non-reelection, may be proceeded with. As we indicated, Mr. Nombre84999, as well as all the members of the T.F.A.—both regular and alternate (propietarios y suplentes)—are not only appointed by the Executive Branch, following a competitive review of credentials and following the rules of the Civil Service Statute (Estatuto de Servicio Civil), but they can also be removed by said Branch of the Republic, when there is merit for it. To maintain the contrary would be to shelter impunity, which this Collegiate Body is not willing to condone. Because of the foregoing, it is clear that the dismissal regime contemplated in Chapter IX of the Civil Service Statute is applicable to any member of the cited Tribunal, whose Article 43 states: *\"Public servants may only be removed from their positions if they incur in the causes determined by Article 81 of the Labor Code (Código de Trabajo) and 41, subsection d), of this law, or in acts that imply a serious infraction of this Statute, its regulations, or the respective Internal Labor Regulations (...)\"*. For its part, Article 51 of said normative body states: *\"Cases not provided for in this law, in its regulations, or in its supplementary or related laws, shall be resolved in accordance with the Labor Code, the Social Security Law, the general principles of Civil Service, the principles and laws of common law, equity, local custom and usage (...)\"*. [The bold is ours]. Having explained the foregoing, the plaintiff seems to confuse the independence in office that the legal system regulates, regarding the organization, operation, and competence of the Administrative Fiscal Tribunal in relation to the Executive Branch in its area of competence, that is, in what refers to the resolution of the tax cases submitted for its consideration, and the administrative and disciplinary controls—not hierarchical (no jerárquicos)—that can and must be exercised over deconcentrated bodies. (...) but this independence could never include matters relating to the disciplinary regime of its members, regarding which the aforementioned law is also clear, by providing that the formalities and substantive provisions established in the Civil Service Statute shall likewise be observed for the removal of the Tribunal members, a provision equally contained in the internal Regulations of said administrative body, by indicating that everything related to the establishment of the disciplinary regime applicable to all officials of such Tribunal shall be governed in accordance with the Civil Service Statute, the General Law of Public Administration (Ley General de la Administración Pública), and other legal and regulatory provisions that are supplementary applicable....\"\n\nNor is it relevant whether the reassignment of his son was or was not at the request of the Vice Minister of Revenue, whether it was or was not for a Government necessity, nor whether it was or was not carried out by Mr. Nombre84999, unilaterally or capriciously, leveraging his position, that is, through influence peddling (trafico de influencias), but rather due to a breach of the duty of probity (deber de probidad). Without it being an obstacle, for the reasons already stated, whether he was proposed or not by other departments, nor whether on the reverse of resolution RES-RP-64-2011, of October 19, 2011, it appears that it was prepared by a legal advisor, with the approval of the Coordinator of the Legal Advisory Office, the Deputy Administrative and Financial Director, and the Director of Human Resources, given that this involves subordinate auxiliary personnel—performing functions of a mere technical, legal, and administrative formality—who do not express—nor commit, for that same reason—the final legal will of the Administration. As was the case with the authorization and signature, among others, of Mr. Nombre84999, as President of the T.F.A. and, therefore, as head of the committed budget program. Furthermore, as is admitted, the approval of the examination for his son would have allowed him to be placed on an eligibility list, a shortlist, and to his eventual appointment at the T.F.A. once his father had retired. Finally, it is worth reiterating that Mr. Nombre84999 was not accused of nepotism or influence peddling, that is, a result; however—and regardless of the academic or professional merits of his son—there is no doubt regarding the serious fault of the action itself, that is, the repeated, particular, personal, and direct interest shown by Mr. Nombre84999 before the Dirección General de Servicio Civil, aimed at having an extraordinary examination administered to him, as well as to another lawyer close to him, which placed them—in this sense—on a preferential footing, in itself, in breach of the duty of probity (deber de probidad) in the exercise of the powers and functions conferred as a hierarchical authority, which entails—contrary to what occurred—the pursuit of the general interest, with objectivity, equality, impartiality, transparency, rectitude, loyalty, good faith, and trust, for which reason he earned the authorization for his dismissal, ordered by resolution number 12479 of the Tribunal de Servicio Civil, at 8:35 p.m. on June 5, 2015; confirmed by judgment number 001-2016-TASC at 11:30 a.m. on January 14, 2016, of the Tribunal de Servicio Civil, and, therefore, by the Executive Branch, due to loss of objective confidence.\n\n**IX.- COROLLARY:** By reason of all the foregoing, which leads to the dismissal, as the principal claims—numbers 1, 2, 3, and 4, and 5—are hereby effectively denied, claims 5, 6, and 7 are also rejected, due to their accessory nature, aimed at the payment of all his labor rights suppressed by said dismissal, including salary increases for any concept, the payment of Moral Damages—subjective—, and the payment of both costs of the proceeding, as well as interest on the amounts granted and the indexation of the currency on these. *Note:* It bears reiterating that Mr. Nombre84999 waived his reinstatement and the payment of lost wages. Consequently, the claims seeking a declaration of nullity of the procedure, a declaration of the statute of limitations for the disciplinary action, a declaration of nullity of the dismissal and of the acts that ordered it, are hereby dismissed; and therefore, due to their accessory nature, the remaining claims for compensation contained in the lawsuit. By reason of which it must be declared inadmissible, in all its aspects. For the reasons stated—which are deemed sufficient—the remaining assertions of the lawsuit are rejected as useless and inconducive. As a corollary of the foregoing, it is proper to dismiss the arguments presented by the representation of the plaintiff, as is hereby ordered.”\n\nwhether or not the claim has been adjusted in the terms that I read out because no additional adjustment is being made, only two aspects are being eliminated, are being suppressed, beyond the fact that no amplification of claims has been requested, well, that is the responsibility of the party\". (...) It was clarified that the moral damages are subjective. (Audio file of the hearing that is recorded in the electronic file and minute in image 120 of the electronic file).
2.- The representation of the STATE (and therefore of the Civil Service Tribunal) answered the lawsuit negatively and raised the substantive defenses of lack of passive and active standing (falta de legitimación ad causam pasiva y activa), of right, and of present interest (Images 193 to 243 of the electronic file)
3.- FERNANDO ALONSO RODRÍGUEZ GARRO, answered the lawsuit negatively and raised the defenses of lack of present interest, lack of passive standing regarding his person, and lack of right (Images to 189 of the electronic file).
4.- The plaintiff submitted a withdrawal (desistimiento) of the lawsuit against the Dirección General de Servicio Civil (image 189 of the electronic file). However, in the preliminary hearing of April 4, 2017, resolution number 783 was issued, the operative part of which reads: “The request for withdrawal (desistimiento) submitted by the plaintiff regarding the Dirección General del Servicio Civil is rejected. The preliminary defense of failure to join the necessary passive joinder of parties (litis consorcio pasiva necesaria) raised by the State representation is granted. Therefore, the plaintiff is warned that within the term of THREE BUSINESS DAYS, they must proceed to provide a set of complete copies of the judicial file under penalty of not attending to future procedures.” (images 120 and 121 of the electronic file).
5.- The DIRECCIÓN GENERAL DEL SERVICIO CIVIL answered the lawsuit negatively and raised the preliminary defense of lack of passive standing and the substantive defense of lack of right (Images 85-108 of the electronic file).
6.- In the preliminary hearing of September 7, 2017, with the attendance of the parties, the opposition to the joinder (integración de la litis) of the Dirección General de Servicio Civil was rejected. The new Processing Judge read the claims of the lawsuit again - with the clarifications made in the hearing of April 4, 2017 -, the plaintiff maintained them, and the defendants made no objection. The testimonial, expert, and admission by party (confesional) (or party statement) evidence was rejected. As there was no other evidence, apart from the admitted documentary evidence, the Processing Judge, Jimmy Sánchez Céspedes, declared this proceeding as one of pure law (puro derecho), in accordance with Article 98 of the Código Procesal Contencioso Administrativo (CPCA). ( Audio file of the hearing that is recorded in the electronic file and minute in images 1 to 73 of the electronic file). The parties submitted their conclusions in writing (see electronic file).
7.- The resolution is issued, after deliberation. No grounds for nullity capable of invalidating the proceedings are noted.-
Drafted by Judge Rodríguez Villalobos; and,
CONSIDERANDO
I.- PROVEN FACTS AND BACKGROUND. As such - without prejudice to their subsequent assessment – the following are deemed relevant: 1.- By resolution RES- RP-64-2011 of 15:25 hours on October 19, 2011, the permanent transfer (reubicación permanente) of the official Adrián Rodríguez Arnesto from the Dirección General de Tributación to the Tribunal Fiscal Administrativo (hereinafter T.F.A.) was authorized. That transfer was authorized and signed - in that resolution, by the then heads - Rowland Espinoza Howel, Viceministro de Ingresos and Nombre81321 , President of the Tribunal-, and by the official Adrián Rodríguez Arnesto himself, expressing his consent (folio 25 of the administrative file). The request for the preparation of that resolution for the transfer was made by the Subdirector General de Tributación through official letter SGT-109-2011, dated October 13, 2011 (folio 26 of the administrative file). On the back of resolution RES- RP-64-2011, appears: Prepared by Licda. Kemely Ellis Hayles, legal advisor. Approved by Licda. Rocío Espinoza Navarro. Coordinator, Legal Advisory. Approved by Licda. Xinia Ramírez Bolaños. Sub-Directora Administrativa y Financiera. Wilbert Cordero Fernández. Director. Departamento de Gestión del Potencial Humano. (Folio 25 back (25 A) of the administrative file). Now, by resolution RES- RP-68-2011 of November 8, 2011, signed by the same heads - Rowland Espinoza Howel, Viceministro de Ingresos and Nombre81321 , President of the T.F.A., the previous resolution - for permanent transfer (reubicación permanente)- RES- RP-64-2011 of October 19, 2011, is revoked (folio 29 front and back of the administrative file). The request to revoke it was made by the Subdirector General de Tributación through Official Letter SGT-116-2011, dated October 4 (sic), 2011, as he had been informed of the existence of a consanguineous relationship between Mr. Adrián Rodríguez Arnesto and the President of the T.F.A. (folios 27 and 28 of the administrative file). 2.- On May 19, 2012, Lic. Nombre81321 , in his capacity as President of the T.F.A., requested Lic. José J. Arguedas Herrera, Director General de Servicio Civil\"...to make the pertinent arrangements for the corresponding examination to be applied to form the eligible list for the post of Member of the Tribunal Fiscal Administrativo, in accordance with the current requirements, for the law graduates Gerardo Danilo Soto Gamboa... and Adrián Rodríguez Arnesto\" (folio 40 of the administrative file. Official Letter T.F.A.-PRES-026-2012, dated June 19, 2012, with original signed seal of the President of the Tribunal and the seal of the Tribunal Fiscal, and receipt seal by Reclutamiento y Selección on June 21, 2012). On May 29, 2013 , again Lic. Nombre81321 , in his capacity as President of the T.F.A., reminds Lic. José J. Arguedas Herrera, Director General de Servicio Civil, of what was requested by him, as President, in the previous official letter T.F.A.-PRES-026-2012, dated June 19, 2012. And states: “Regarding this request, this Presidency to date has not received any response, nor have said graduates been called by the Dirección General de Servicio Civil to take the corresponding exam, despite having inquired on several occasions about the status of the procedure, therefore I request your collaboration to provide timely attention to what was requested. ”. (folio 39 of the administrative file. Official Letter T.F.A.-PRES-053-2012, dated May 29, 2013, with signature of the President of the Tribunal and the seal of the Tribunal Fiscal, and receipt seal by the Dirección General -DGSC- on May 29, 2013). On the same day, May 29, 2013, Lic. Nombre81321 , in his capacity as President of the T.F., addresses Mrs. Anabelle Rodríguez Córdoba, from the Unidad de Selección y Administración de Concursos, of the Dirección General - DGSC-, informing her of the previous official letters and also, as relevant: That upon receipt of Official Letter T.F.A.-PRES-053-2012, dated May 29, 2013, at the window of the Area de Reclutamiento y Selección de Personal, they delivered Official Letter ARSP-USAC-159-2013 of May 29, 2013, addressed to him, as President of the T.F.A., in which they inform him: “...that we currently have no extraordinary evaluation process in which they can participate. Given the above, it is not possible to process what was requested; however, any interested party in participating in the competitions is urged to consult our Website, a site where the available competitions are announced.” In response, Don Nombre81321 insists that the submitted procedure be processed so that the tests are applied - to the mentioned officials -, in the same manner in which they were conducted for other officials to form the eligible and substitute list for the post of Member of the Tribunal Fiscal. All official letters that the President mentions among the correspondence processed with their respective receipt reference (folio 36, 37, and 38 of the administrative file. Official Letter T.F.A.-PRES-054-2012, dated May 29, 2013, with original signed seal of the President of the Tribunal and the seal of the Tribunal Fiscal, and receipt seal by the Dirección General DGSC, on May 29 , 2013). On November 14, 2013, mentioning the official letters T.F.A.-PRES-026-2012, T.F.A.-PRES- 053-2012, and other official letters, Don Nombre81321 again requests, as President of the T.F.A., from the Dirección General del Servicio Civil an extraordinary test for the official Soto Gamboa, mentioned in the first official letter T.F.A.-PRES-026-2012 (folios 14 of the administrative file. Official Letter TFA-PRES-100-2013). 3.- On November 27, 2014, according to his agenda, Mr. Fernando Rodríguez Garro, Viceministro de Ingresos, received officials from the T.F.A., who filed an anonymous complaint before him and Mr. Fabricio Chavarría Bolaños, Advisor to that Office, against Don Nombre81321, President of the T.F.A.. They handed over a copy of the aforementioned official letters TFA-PRES 026-2012, dated June 19, 2012, TFA-PRES-053-2012, dated May 29, 2013, TFA-PRES-100-2013, dated November 14, 2014. At the same time, they mentioned the existence of resolution RP-064-2011, with an indication of the file - personnel file -, in which it was located. At the request of the aforementioned advisor, on December 3, 2014, the Director of the Area de Reclutamiento y Selección de Personal of the Dirección General de Servicio Civil, certifies, based on the archives of that Office, the copies of the following documents: Official Letters TFA-PRES-026-2012, TFA-PRES-053-2013, TFA-PRES-054-2013, signed by Lic. Nombre81321 , President of the T.F.A., ARS-URPC-0627-2013, signed by Máster María Vanessa Ramírez, and document No. 282-2014, in which Mr. Gerardo D. Soto Gamboa is informed of his score and position within the Registro de Elegibles for the post class Member T.F.A. On December 5, 2014, Mr. Fernando Rodríguez Garro, Viceministro de Ingresos, brought to the attention of the Dirección Jurídica of the Ministerio de Hacienda the anonymous complaint filed on November 27, 2014, against Don Nombre81321, through Official Letter DVMI -224-2014, together with the aforementioned documentation, certified. With the instruction that the necessary investigations be carried out, which, under the principle of due process (debido proceso), would allow the real truth of the reported facts to be clarified (folios 1 to 23 of administrative file 16032, Volume 1). On December 8, 2014, the certification of five photocopies from the archives of the Departamento de Gestión del Potencial Humano, of the Ministerio de Hacienda, corresponding to the personal file of the employee Rodríguez Arnesto Adrian, son of the plaintiff, Don Nombre81321 was also sent to the Dirección Jurídica of the Ministerio de Hacienda. Namely: Official Letter SGT-109-2011 dated October 13, 2011; resolution RES-RP-64-2011 of 15:25 hours on October 19, 2011; Official Letter SGT-116-2011 dated October 4, 2011 (sic) and resolution RES-RP-68-2011 of 14:50 hours on November 8, 2011 (folios 24 to 30 of administrative file 16032, Volume 1). On December 17, 2014, the President of the Republic together with the Minister of Hacienda submitted the dismissal procedure (gestión de despido) of Don Nombre81321 to the knowledge of the Dirección General de Servicio Civil (DGSC). In that initial submission, it is requested: \"Based on the facts presented and the legal grounds indicated, we request that this dismissal procedure be processed, that the file be instructed, the documentary evidence admitted, and that we be authorized to dismiss, without employer liability, the official Nombre81321 , President of the Tribunal Fiscal Administrativo, of the qualities indicated above; likewise, we request that the provisional and immediate suspension, with pay, of the cited official be authorized, until this dismissal procedure is resolved.\" (folios 1 to 8 of administrative file 16032, Volume 1). Furthermore, on December 18, 2014, the certification from the Dirección Jurídica of the Ministerio de Hacienda -DJMH-0622-2014-, and the certification from the Dirección del Area de Reclutamiento y Selección de Personal, of the Dirección General de Servicio Civil, of December 17, 2014, of the documentation related to the dismissal procedure request, were filed with the Dirección General de Servicio Civil, for the purpose of being incorporated into the administrative file, as part of the evidence provided in the initial submission presented on December 17, 2014 (folios 33 to 41 of administrative file 16032, volume 1). 4.- That same day, December 18, 2014, by resolution No. AJD-RES.487-2014, at 9:58 a.m., from the Asesoría Jurídica of the Dirección General de Servicio Civil, the administrative procedure was deemed initiated against the respondent Nombre81321 , with the purpose of ascertaining the real truth of the following charges imputed to him, according to the statement of the Plaintiff, regarding that, supposedly: \"...he has incurred a serious fault, since holding the public office he holds, (President of the Tribunal Fiscal Administrativo) he signed the resolution for the permanent transfer (reubicación permanente) of post No. 013358 classified as Profesional de Ingresos 3 of the program Administración de ingresos Internos- Gestión Ingresos Internos budget code 206-134-02-01-0001 to the program Tribunales Fiscales y Aduaneros-Tribunal Fiscal Administrativo 206-135-01-01-0001 effective October 20, 2011, a post held by his son Adrián Rodríguez Arnesto, identity card number CED60388, as well as having repeatedly requested the Dirección General de Servicio Civil to make the pertinent arrangements for the corresponding examination to be applied so that the law graduates Gerardo Danilo Soto Gamboa, identity card number CED60389 and Adrián Rodríguez Arnesto, identity card number CED60388, the latter being the son of Mr. Nombre81321, form the eligible list for the post of Member of the Tribunal Fiscal Administrativo\". ...\" Which was notified to Don Nombre81321, on December 18, 2014. (fs.\n\n42-49 administrative file 16032, Volume 1). Likewise, by resolution of the Civil Service Tribunal - without number - at 7:20 a.m. on January 6, 2015 , regarding matters of interest, it was ordered: \"...IT IS DECREED the provisional suspension with pay of the employee Nombre81321 , ID number CED60390, while this disciplinary dismissal procedure is being conducted and until a final resolution is issued, unless the respective head deems it necessary and/or convenient to lift the precautionary measure before that time, in order to guarantee the public interest, which must be communicated by the administrative authorities to the defendant....\". He was notified on January 7, 2015. (pp. 59-66 administrative file 16032, Volume 1). 5) By resolution of the Civil Service Tribunal - without number - at 7:40 p.m. on February 3, 2015, regarding matters of interest, it was ordered: \"By virtue of the foregoing and the legal provisions cited, the preliminary objections of statute of limitations, lack of competence, failure to exhaust the administrative procedure, violation of due process, and absolute nullity alleged in his defense by the employee Nombre81321 are rejected as unfounded, and the file is referred to the Directorate General of Civil Service so that the corresponding information gathering may continue. In accordance with what is established in relation to Articles 14 subsection a), 44 of the Civil Service Statute and 86 of its Regulations, this resolution is not subject to any appeal....\" . He was notified on February 6, 2015 (pp. 166-192 administrative file 16032, Volume 1). 6) By resolution of the Civil Service Tribunal - without number - at 7:50 p.m. on February 17, 2015, regarding matters of interest, it was ordered: \"...In this way, the request for clarification and addition filed is rejected as unfounded. The defendant party shall abide by what was resolved in the Resolution of this Tribunal at 19:15 on February 3, two thousand fifteen.\" He was notified on February 24, 2015 (pp. 195-204 administrative file 16032, Volume 1). 7) By resolution of the Civil Service Tribunal - without number - at 8:15 p.m. on March 10, 2015, regarding matters of interest, it was ordered: \"...Thus, the appeal (recurso de apelación) filed by the defendant on page 205 against the resolution issued by this Tribunal at 7:15 p.m. on February third of this year, which rejected the preliminary objections filed by said party, is rejected as unfounded....\" He was notified on March 13, 2015 (pp. 216-224 administrative file 16032, Volume 1). 8) By resolution of the Administrative Tribunal of the Civil Service, No. 035-2015-TASC, at 11:20 a.m. on April 24 , 2015, regarding matters of interest , it was ordered: \"...To reject as unfounded the Appeal for Inadmissibility (Recurso de Apelación por Inadmisión) filed by Mr. Nombre81322 in his capacity as Special Legal Representative (Apoderado Especial) of Nombre81321 , against the Resolution issued by the Civil Service Tribunal at eight-fifteen p.m. on March tenth, two thousand fifteen.\" He was notified on April 29, 2015. (pp. 359-374 administrative file 16032, Volume 2). 9) By resolution - final act -, of the Civil Service Tribunal, No. 12479 at 8:35 p.m. on June 5, 2015, regarding matters of interest, it was ordered: \"...IT IS RESOLVED : The motion of new facts (incidente de hechos nuevos) raised by the defendant party is unfounded, and the proceeding initiated by the President of the Republic and the Ministry of Finance to dismiss the employee Nombre81321 from his position without liability for the State is GRANTED, by virtue of the foregoing, the legal provisions cited, and Articles 14 subsection a) and 19 subsection a) of the Civil Service Statute and 63 subsection a) of its Regulations. Consequently, the Executive Branch is authorized to dismiss the indicated employee. ...\" .He was notified on July 7, 2015. (pp. 376-452 administrative file 16032, Volume 2). 10) By resolution -definitive-, of the Administrative Tribunal of the Civil Service, No. 001-2016-TASC, at 11:30 a.m. on January 14 , 2016, regarding matters of interest, it was ordered: \" ...In accordance with the reasons set forth, this Tribunal finds no factual and legal basis to vary the appealed resolution. Based on the provisions of Articles 39 subsections a) and d), 14 subsection a) and 190 subsection a) and 43 and following of the Civil Service Statute, and 63 subsection a) and 90 of the Regulations to said Statute, 81 subsection l) of the Labor Code, Articles 3 and 4 of the Law Against Illicit Enrichment in Public Office, Articles 160 and 161 of the Code of Tax Rules and Procedures, and Article 9 of Law No. 8877, THE APPEAL (Recurso de Apelación) filed by the Legal Representative of the official Nombre81321 , holder of identity card No. CED60391, IS REJECTED, and to that extent resolution number one hundred twenty-four seventy-nine issued by the Civil Service Tribunal at eight thirty-five p.m. on June fifth, two thousand fifteen, which declares the dismissal proceeding initiated by the President of the Republic and the Minister of Finance to dismiss the employee Nombre81321 without liability for the State IS CONFIRMED, authorizing the Executive Branch to proceed with his dismissal...\" . He was notified on January 14, 2016 (pp. 537-613 administrative file 16032, Volume 3). 11) By resolution of the Administrative Tribunal of the Civil Service, No. 002-2016-TASC, at 9:10 a.m. on January 21, 2016, regarding matters of interest, it was ordered: \"...To reject as unfounded the request for clarification and addition of resolution No. 001-2016 of eleven thirty a.m. on January fourteenth, 2016. He was notified on January 21, 2016 (pp. 624-638 administrative file 16032, Volume 3). 12) By executive decision - of dismissal -, of the Executive Branch, No. 0003-2016-H, at 3:17 p.m. on January 14, 2016, it was ordered: \"Article 1.- To dismiss with just cause and without liability for the State, the employee Nombre81321 , holder of identity card number CED60386 from position number CED60392. Class President of the Administrative Fiscal Tribunal, assigned to the Administrative Fiscal Tribunal. Article 2.- This decision takes effect as of February 12, 2016.\" (see image 450, electronic file). 13) By official letter DM-0202-2016, dated February 5, 2016, the Minister of Finance notified him of the dismissal with just cause and without liability for the State, effective as of February 12, 2016 (uncontested fact # 40). 14) Mr. Nombre81321 decided to take his retirement (source: By documents dated July 15, 2016, he submitted his resignation from the position of President of the Administrative Fiscal Tribunal, No. 10815, assigned to said Tribunal, effective September 1, 2016, with the purpose of taking his pension, under the I.V.M. regime of the CCSS (See certification DGPHUDA- MANUAL-0906-2016 of November 21, 2016 and certification DJMH-0326-2016 of 2:00 p.m. on July 20, 2016, where copies of the documents submitted on July 15, 2016 by Mr. Nombre81321 , regarding his resignation (three in total) and a copy of the document dated July 13, 2016, issued by the Pension Management Department of the CCSS, by which the plaintiff is informed that he meets the requirements to take an old-age pension are certified and attached. Images in electronic file).
II.- UNPROVEN FACTS AND/OR BACKGROUND: Of influence in the decision, the following are deemed unproven in the case file: 1) T he dismissal procedure began on December 11, 2014. 2) The Directorate General of Civil Service is the employer representative. 3) The active or omissive participation of the Vice Minister of Revenue, Mr. RODRÍGUEZ GARRO in the charged facts or acts. 4) Mr. Nombre81321 stopped receiving his normal salary during the processing of the dismissal proceeding and until the date on which this Tribunal declared the precautionary measure he instituted without merit. 5) He had held the position without interruption and without any sanction. 6) He is an employee outside the Ministry of Finance. 7) He has a special legal employment stability privilege (fuero). His removal only occurs by non-reelection, upon expiration of the term and provided that the commission of one of the grounds of Article 161 of the Tax Code has been verified. 8) The ordinary administrative procedure, of Article 308, of the LGAP, should have been conducted previously. 9) He requested the prior intervention of the Labor Relations Board (Junta de Relaciones Laborales). 10) The charges were based -solely- on Articles 3 and 45 of the Law Against Corruption and Illicit Enrichment in Public Office. 11) Resolution RES- RP-63-2011 of October 19, 2011 was made and issued by the Ministry of Finance. 12) The Minister had knowledge of the charged offenses since October 2011.
III.- ASSERTIONS AND GROUNDS OF THE CLAIM: To that effect, IN SUMMARY, he alleges:
1) On December 11, 2014, a \"dismissal\" proceeding was initiated against Mr. Nombre81321 , before the Civil Service Tribunal, by the Executive Branch. To which file No. 16032 was assigned (exhibit #1). 2) For almost 40 years, Mr. Nombre81321 has held the position of President of the Administrative Fiscal Tribunal (hereinafter T.F.A.) without interruption without having been disciplined (exhibit #2). 3) In exercising his defense, he alleged that the T.F.A. is an organ of maximum deconcentration, independent from the Executive Branch in its ORGANIZATION and FUNCTIONING. Article 158 of the Code of Tax Rules and Procedures (hereinafter Tax Code). He transcribes it. 4) Likewise, he raised that the deconcentration of the T.F.A. is such, that its members earn salaries according to the salary received by the Judges and officials of the Judicial Branch. Article 161 of the Tax Code. He transcribes the relevant part. 5) Mr. Nombre81321 is not a direct employee of the Ministry of Finance. Upon indicating who his hierarchical superiors are, the certification of his employment records, from the Department of Human Potential Management, refers to Article 1 of the Regulation of Organization, Functions and Procedures of the T.F.A. (#32249-H) which in turn reiterates what is indicated in Article 158 of the Tax Code (exhibit #2). 6) Mr. Nombre81321 did not commit any of the grounds for removal of T.F.A. members regulated in Article 162 of the Tax Code (he transcribes it). 7) Mr. Nombre81321 has a special legal employment stability privilege (fuero). The removal of the judges of the T.F.A. only occurs by non-reelection, upon expiration of the term of appointment and provided that the commission of one of the grounds of Article 161 has been verified, via the procedure regulated in the Regulations to the Law. Including its President, they are not subject to orders or administrative regulations of the Executive Branch, as they are totally independent from it, with a legally recognized maximum deconcentration. 8) The Civil Service Directorate, through legal opinion AJ-245-2003, by Mr. Javier Rojas Víquez, confirms the employment stability of Mr. Nombre81321 and the application of a specific rule for possible removal by non-reelection. He transcribes a passage from the report (exhibits #3-A and 3-B). 9) There was an omission that causes a serious defect and defective procedural activity because, prior to the initiation of the dismissal proceeding before the Tribunal and the Civil Service Directorate, the preliminary ordinary administrative procedure regulated in Article 17 of the Regulation of Organization, Functions and Procedures of the Administrative Fiscal Tribunal should have been carried out (Decree 32249-H) (exhibit #4) 10) This is the administrative procedure PRIOR TO ANY INTENT TO REMOVE that is applied in accordance with Article 162 of the Tax Code. He transcribes the provision of Article 17. According to Article 13 of the LGAP, IT CANNOT BE DISAPPLIED by the Executive Branch, in accordance with the principle of singular non-derogability of regulations. 11) The proceeding in question that was initiated was one of public employment. With its own protective principles. The application of the specific procedural rules, was mandatory, in this case. Not only is there Article 162 of the Tax Code, on removal of T.F.A. members with an exhaustive list of grounds, but also a regulated procedure - approved and in force -, which expands and establishes the special and prior administrative process for removal -by non-reelection- in accordance with the LGAP. 12) What was done in the procedure violates Article 13 of the LGAP, on the singular non-derogability of rules. He transcribes it. 13) During the proceedings (exhibit #5), the witness Nombre78002 , Acting President of the TFA, declared: \"... the organizational authority of the Tribunal is also endorsed by a pronouncement of the Office of the Attorney General, C-232-2010 (*), which grants the president of the Tribunal broad powers for that purpose, the only thing it does not allow is setting requirements for positions, as this is the direct competence of the Directorate General of Civil Service; regarding the duty of probity, that is classified as a crime, and as far as I know Mr. Nombre81321 had not been convicted even in the attempt stage, for any crime which is one of the grounds for removal of Tribunal members, Article 16 of the Tribunal's Regulations also only mentions a procedure under the General Law of Public Administration for the removal of Tribunal members, it does not mention the Statute, rather we must be subjected to the procedure of the General Law of Public Administration, in the event that a ground for removal of a Tribunal member exists,\" (SIC) (* this refers to pronouncement C-212-2013, of October 24, 2013). Furthermore, failure to comply with this prior procedure implies a violation of the right to defense and due process \"and all its constituent principles\" as stipulated in Article 17 of the Regulation.\n\n**14)** At no time did the defendants make the prior consultation and advisory study that corresponds to the Labor Relations Board (Junta de Relaciones Laborales) of the Ministry of Finance (on the hypothesis that there is a labor relationship with said Ministry), regulated by the Ministry’s Autonomous Regulation, Decree N°25271-H (see exhibit #6). It transcribes Articles 76 and 77.\n**15)** Despite the foregoing, a dismissal proceeding against the President of the T.F.A. was filed, processed, and admitted by the Executive Branch, from which it is deconcentrated, with maximum deconcentration, by legal provision (exhibit #1).\n**16)** The request to terminate the labor relationship of Mr. Nombre81321 was based on accusing him of committing alleged—statute-barred (prescritas)—offenses against the duty of probity, based on Articles 3 and 45 of the Law against Corruption and Illicit Enrichment in Public Service (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública).\n**17)** Both alleged offenses never materialized. Mr. Adrián Rodríguez, the plaintiff’s son, was never transferred to the T.F.A., nor were suitability exams administered to him before the Civil Service Directorate (Dirección de Servicio Civil). These are facts that also do not qualify as grounds for removal due to non-reelection of the President of the aforementioned Court, nor as the type of offense established in the aforementioned articles of the Law against Corruption and Illicit Enrichment in Public Service. These were uncompleted acts, which were not unlawful.\n**18)** The Ministry of Finance, its Vice Minister of Revenue, Fernando Rodríguez Garro, and the State had knowledge, notice, and information of the specific acts categorized by them as alleged offenses since October 2011, offenses for which they undertook the dismissal procedure that was not initiated until December 11, 2014, exceeding the one-month period stipulated in Article 99, subsection c) of the Regulation of the Civil Service Statute (Reglamento del Estatuto de Servicio Civil) and 603 of the Labor Code (Código de Trabajo) (then in force), whereby the statute of limitations (prescripción) on the State's disciplinary authority supervened (following exhibits).\n**19)** In the \"Statement of Charges\" (Imputación de Cargos), the grounds are limited—both statute-barred (prescritas)—(exhibit #1): 1.- Having signed a resolution (which never saw legal life, as it had no effects) for the relocation (reubicación) of a position occupied by his son, Adrián Rodríguez Arnesto (RES-RP-64-2011); 2.- Having requested (a request that also had no effects) that suitability exams be administered to two persons, one of them his son, to eventually be able to participate in the competitions held to elect alternate members of the T.F.A. or as full members or substitutes.\n**20)** In the first case, the hypothetical offense is based on resolution RES-RP-63-2011 of October 19, 2011 (exhibit #7-B). That is, issued 3 years before the dismissal proceeding. Facts that should have been known to the Vice Minister of Revenue, since that resolution was provided together with the Dismissal Proceeding.\n**21)** This resolution was issued by the Ministry of Finance and signed by the Vice Minister of Revenue of said Ministry. It is not an act emanating from the T.F.A., much less from the desk of Mr. Nombre81321, but rather, made by the Ministry itself, which now alleges the offense based on it. The same Office of the Minister or Vice Minister was the one who made the fruitless relocation, who also rendered it ineffective days later, and later who initiated the investigation procedure as a \"dismissal proceeding,\" 3 years later. The request was made by the Deputy Director of Taxation via official letter SGT-109-2011 (exhibit 7-A). Inexplicably, 3 years later, the Vice Minister himself, in the person of Fernando Rodríguez Garro, without investigating the events that occurred and the existing documents and resolutions, ignores the content and scope of resolutions RES-RP-64-2011 and RES-RP-68-2011, in order to deem the aforementioned ground for dismissal constituted.\n**22)** Before the document was signed, it already bore the signatures of several officials of said Ministry on the reverse, including Human Resources and its Legal Directorate, where the official’s transfer was drafted (exhibit #7-B).\n**23)** Resolution RES-RP-64-2011 was prepared by \"REN\" (Attorney Rocío Espinoza Navarro), Head of the legal area of the Administrative and Financial Directorate of Finance, and by \"Nombre81323\" (another official of that Legal Directorate). As can be seen, the resolution was also signed by the Vice Minister that same day, October 19, 2011 (exhibit #7-B).\n**24)** All these \"EMPLOYER REPRESENTATIVES\" had knowledge of the facts under investigation since October 2011, and therefore, 3 years elapsed until they filed the \"dismissal proceeding.\" All of the foregoing by virtue of the theory of the administrative organ, independently of the official who exercises it.\n**25)** Its receipt in Human Resources on October 21, 2011, is recorded on the reverse of said official letter (same exhibit).\n**26)** Furthermore, said resolution was annulled by Resolution RES-RP-68-2011, of November 8, 2011, also signed by the Vice Minister of Finance (exhibit #8).\n**27)** Also, as recorded in a complaint that certain \"anonymous\" persons filed in January 2013 before the Ethics Prosecutor (Procurador de La Ética), the Comptroller General of the Republic (Contraloría General de La República), the General Directorate of Civil Service (Dirección General de Servicio Civil), and the Human Potential Management Directorate of the Ministry of Finance, with a copy to the Ministry's internal audit, the Political Control Commission of the Legislative Assembly, the same facts had already been brought to the attention of the \"employer.\" To this effect, that note states (exhibit #9): \"... It is worth mentioning that this situation of irregular appointments is not something new in the Court (SIC), since in 2011, as can be corroborated in the respective personnel files, Mr. Rodríguez had already attempted to commit another similar illicit act, when he proceeded to appoint his son, Mr. Adrián Rodríguez Arnesto, as an official of the Fiscal Court, who is currently an official of the National Large Taxpayers Directorate. All this act of corruption remains unpunished to date because the respective resolutions were simply annulled, without establishing greater responsibility on those who had made this corrupt decision...\" \"... The objective of this complaint is for the competent authorities to carry out the investigations that are legally appropriate to determine the unlawfulness of the acts described herein, and to establish the corresponding disciplinary and judicial responsibilities ...\".\n**28)** Before the General Directorate of Civil Service, in her capacity as a witness, Attorney Rocío Espinoza Navarro stated, regarding the signing of the relocation resolution for Lic. Adrián Rodríguez, the following: \"At what point did the high-ranking officials of the Ministry of Finance learn that Mr. Nombre81321 signed that resolution? The witness answers: I do not know the exact moment they learned of it, but I can indicate that the Vice Minister of Revenue at that time signs the resolution after Mr. Nombre81321, therefore he learns of it at that moment.\" She refers to resolution RES-RP-64-2011, of October 19, 2011, signed by the Vice Minister of Finance that same day. Based on the foregoing, the Ministry of Finance, the proponent of the procedure to \"dismiss,\" knew the facts that it denounces as serious and as the basis for the proceeding in the months of October and November 2011, since it also signed Resolution RES-RP-68-2011, of November 8, 2011, which annuls the previous one, without initiating any disciplinary administrative procedure against the alleged offender or offenders.\n**29)** For his part, Lic. Gerardo Soto Gamboa, in his statement before the Civil Service Directorate, expressed: (exhibit #10): \"13 Do you know anything regarding anonymous complaints against Mr. Nombre81321 for requesting that kind of suitability exam? Answer: Yes, and about other anonymous complaints. 14 When and how did these anonymous complaints arise? Answer: I understand, from what is said in the corridors, that it happened last year by a group of officials of the Fiscal Court who occupy a position's list of eligible candidates, who appeared at the office of the vice minister of revenue to denounce this again, I say again because in an anonymous document also presented to Human Resources that was elevated to the Minister's office and to the Executive Branch, which caused the initiation of an ordinary procedure to annul administrative acts of functioning and organization issued by the Presidency of the Court, in which, I should emphasize, I had a favorable pronouncement from the Attorney General's Office in my favor, mention had already been made of these facts and others. 15 When was this last thing, approximately what date? Answer: It was at the beginning of 2013, I spent all of 2013 in an administrative procedure. 16 Did it mention that Mr. Nombre81321 requested extraordinary exams for you and Mr. Adrián Rodríguez? Answer: I am not certain if the document addressed that issue, but I am certain that it did speak of illegal appointments of myself and Adrián Rodríguez, it was termed illegal, appointments in the Fiscal Court.\"\n**30)** According to this statement, since early 2013, through anonymous complaints presented before the Ministry and which reached the Minister's Office, that Ministry had already been made aware of the facts that support the dismissal proceeding filed against Lic. Nombre81321 (exhibits #9 and #10).\n**31)** By official letter DGPH-AO-019-2013 of January 25, 2013, which we were able to obtain thanks to the facts related by Lic. Soto Gamboa, the Director of Human Resources of the Ministry responds to Minister Ayales Esna, regarding aspects he consulted from the aforementioned anonymous complaint, thereby demonstrating that the Ministry had a copy thereof, where the non-existent anomalies committed by Mr. Nombre81321 were pointed out, without any measures being taken in this regard, deeming the conduct of the President of the T.F.A. inconsequential (exhibit #11).\n**32)** Likewise, in the case of the hypothetical official letters addressed to the Director of Civil Service for the administration of suitability exams (Second alleged offense), these are facts that occurred one year or more prior to the initiation of the \"dismissal\" proceeding against the plaintiff here. We must also remember that the General Directorate of Civil Service is the governing body for the Human Resources of the Executive Branch and, consequently, is an employer representative for the purposes of applying the statutory limitations (prescripciones) invoked in this litigation.\n**33)** The only one of the letters included in the plaintiff's \"dismissal\" petition that bears his signature is TFA-PRES-100-2013 of November 14, 2013. Consequently, the others could not be taken into account with any evidentiary value, as they are ineffective and lacking in validity (exhibit #12). However, in the last letter, Lic. Adrián Rodríguez Arnesto is not included in the request for an exam.\n**34)** From the date these other facts occurred and became known to the Civil Service Directorate, until the moment of the initiation of the illegal \"dismissal\" proceeding, more than one year elapsed, whereby these non-existent offenses were also statute-barred (prescritas) according to Article 99 of the Regulation of the Civil Service Statute (one-month period).\n**35)** The statute of limitations (prescripción) set forth was alleged and raised in the illegal \"dismissal proceeding,\" both as a preliminary exception and within a motion of new facts filed subsequent to the statements of the witnesses Licda. Rocío Espinoza and Lic. Gerardo Soto, which demonstrated the knowledge held in the highest spheres of the State regarding the alleged offenses imputed. Proof of this lies in the very documents provided by the Executive Branch to the Dismissal Proceeding (exhibit #13).\n**36)** Another element that vitiated with absolute nullity all actions taken by the Civil Service Tribunal (Tribunal de Servicio Civil) and the General Directorate of Civil Service is that, despite having timely offered as testimonial evidence the statement of Mr. Rowlan Espinoza Howell, Vice Minister of Revenue, it was never taken, this without any basis or reason, thus violating due process (debido proceso) and the right of defense. Given that the indicated witness was no longer an official of the Public Administration, his substitution was requested by Mr. Guillermo Antonio Méndez Murillo, former manager of National Large Taxpayers, a request that was not addressed (exhibit #14).\n**37)** The testimony of Mr. Espinoza was key to the defense of Mr. Nombre81321, as was that of Mr. Méndez Murillo, as they were officials involved in the facts that were being accused within the dismissal proceeding. The former was the Vice Minister who signed the proceeding to relocate officials from the National Large Taxpayers Office of the General Directorate to the Administrative Fiscal Court, including Adrián Rodríguez, the plaintiff's son. The latter was the Manager of that Office, which was where the officials were being relocated from, being the most specialized tax administration in the country regarding the knowledge and resolution of tax matters (it collects 80% of the Nation's taxes).\n**38)** In the brief presented to the General Directorate of Civil Service, within the administrative case file, dated March 19, 2015, it was repeatedly stated that the General Directorate should have made the summons for this official, since Lic. Rodríguez did not have the capacity to do so (exhibit #15).\n**39)** According to resolution No. 12479 issued by the Civil Service Tribunal, at 8:35 p.m. on June 5, 2015, the dismissal proceeding was DECLARED WITH MERIT (CON LUGAR). It was APPEALED to the Administrative Tribunal of Civil Service (Tribunal Administrativo de Servicio Civil). This Tribunal CONFIRMED the appealed resolution through judgment No. 001-2016-TASC at 11:30 a.m. on January 14, 2016.\n**40)** Supported by said resolutions and Agreement No. 0003-2016-H issued by the Executive Branch, the Minister of Finance, through official letter DM-0202-2016, notifies Mr. Nombre81321 of the dismissal with just cause and without responsibility for the State, effective as of February 12, 2016 (see exhibit #16).\n**41)** The challenged act violates the principle of proportionality. There is no proportion between the offense committed and the sanction imposed, since the equilibrium that must prevail in labor relations of any kind is being violated. In the case, the non-existent and statute-barred (prescritas) offenses imputed are far from being considered serious, lacking the necessary severity for an act that severs a human right to be executed. Both the fruitless relocation of Lic. Arnesto Rodríguez and the request for suitability tests are actions that never came into legal existence.\n**42)** The dismissal of Mr. Nombre81321, after nearly 40 years of Presiding over the T.F.A., was publicized by the Ministry on its website and gave rise to journalistic news in the main print and digital or \"online\" media (exhibit #17). On the web pages of said newspapers, people engaged in \"ranting\" against the honor, good name, and professional reputation of Mr. Nombre81321, severely damaging them.\n**43)** Said communication was also made by email to the Ministry's employees, an event never before seen in its annals.\n**44)** All this exposure for someone who holds the position of Dean of the Presidents of Ibero-American Fiscal Courts has caused and is causing Lic. Rodríguez a tremendous effect on his health and morale, to the extreme that for the first time in his life he must see a psychiatrist who prescribes special medications to control his mental and physical health (see exhibit #18).\n**45)** As a consequence, Mr. Nombre81321 has remained on medical leave from his duties from March 4 until June 12, both months of 2016 (exhibit #19).\n\n**NULLITIES OF THE ADMINISTRATIVE ACT**\nIn the proceedings, three serious infractions of Due Process (Debido Proceso) and the Right of Defense have been committed, causing the absolute nullity of the final act:\n**1)** The prior administrative procedure regulated in the Regulation of Organization, Functions and Procedures of the T.F.A. is omitted. This establishes the administrative procedure PRIOR TO ANY DISMISSAL PROCEEDING, applied in accordance with Article 162 of the Tax Code (Código Tributario). Article 17 of said regulation, in fine, establishes that: \"The verification of the grounds mentioned in this article shall be carried out through an ordinary administrative procedure established by the General Law of Public Administration (Ley General de la Administración Pública), ordered to that effect by the Executive Branch, in which the fundamental guarantee of due process and all its constituent principles, especially the right of defense, shall be respected.\" (emphasis supplied). Article 160 of the Tax Code provides: \"Article 160.--Integration of the Court and requirements of its members. The Administrative Fiscal Court is composed of the specialized chambers that are established by the Executive Branch, which shall be composed of three full members; among them, the president shall be elected...., in accordance with the Regulation of Organization, Functions and Procedures of the Administrative Fiscal Court to be issued by the Executive Branch, following consultation with the Administrative Fiscal Court, which must be issued within a maximum period of two months. This Regulation shall be mandatory for the Court, and its members may not disapply its rules. The Regulation of Organization, Functions and Procedures of the Administrative Fiscal Court shall determine the internal organization of the Court and the procedures applicable to the processing of appeals and other functions indicated in this Code or other special laws.\"\n**2)** In the processing of the preliminary administrative procedure, regulated within the Court, the prior consultation of the Ministry's Labor Relations Board (Junta de Relaciones Laborales), regulated in Articles 76 and 77 of the Ministry’s Autonomous Regulation, Decree N°25271-H, was omitted, which provide: (see exhibit #6): \"Article 76. A Labor Relations Board shall function in the Ministry, composed of three representatives of the Minister and three representatives of the union organizations that have membership in the Ministry, who shall have the obligation to represent every official, whether or not they are affiliated with one of the organizations. The union representatives shall be designated by agreement of the respective Boards of Directors.\"\n\n(...) *Article 77.- The Board shall be of an advisory nature and its purpose shall be the harmonious study of labor conflict situations, whether of an individual or collective nature, or of IPC demands for social improvement for the benefit of the employees.*\n\n**3)** Omission of receiving the statement of Mr. Howell, Deputy Minister of Revenue, which despite having been repeatedly requested, was never gathered, without any basis or reason, violating due process and the right of defense. His testimony was key to the defense because he was the one who signed the procedure to transfer officials from the Office of Large National Taxpayers of the General Directorate to the T.F.A., including Adrián Rodríguez, son of the plaintiff. These transgressions render null and void both the procedure carried out and the authorization for the dismissal by the Civil Service Tribunal, and, finally, the act of dismissal itself carried out by the Ministry of Finance.\n\n**STATUTE OF LIMITATIONS FOR THE OFFENSES:**\n\nThe Regulation of the Civil Service Statute, applicable in this case, provides: *\"Article 99.- The following shall prescribe in one month: (...) c) The actions of the Ministers to initiate the dismissal process of regular employees for just cause and to impose the disciplinary corrections authorized by law and internal labor regulations, starting from the day on which cause for the sanction arose, or as applicable, from when the corresponding facts or offenses were known.\"* Thus, the hypothetical right that the employer had to dismiss was time-barred, since it **had direct knowledge of the grounds for its dismissal petition** since years prior to the date of initiation of the proceeding. Before it, no administrative procedure or preliminary investigation was carried out that could suspend the course of the period for sanctioning, all as was explained.\n\n**DISPROPORTIONALITY:**\n\nThe first thing that draws attention is the disproportionality that exists between the facts on which the dismissal request was based and the sanction that was applied. Common sense and rationality seem to be absent from the proceedings, giving way to questioning what the true intentions were that were hidden behind that proceeding and why all that artifice was sustained by ANONYMOUS sources or subjects who hide behind anonymity. If they were really serious enough to remove the President of the Tribunal, what would be the reason for hiding or skulking around? Mr. Nombre81321 has 40 years of being the President through whom billions of colones pass annually. In 40 years, he has been an active participant and essential piece in the destination of tens or hundreds of billions of colones in tax appeals. Funds that for 40 years have served to pay the salaries of public officials and were destined for all the works and services provided by the State. Likewise, as President of the Tribunal he directs an organ of full jurisdiction, which guarantees equality in defense, loyalty in debate, and rectitude in the final decision, maintaining a balance between the rights and guarantees of the taxpayer and the Imperium Power of the State. If an official with broad international recognition (he is the Dean of the Ibero-American Association of Fiscal or Administrative Justice Tribunals -AIT-) and a lifetime of honesty and excellence in his management, with a clean record, is questioned for hypothetical acts that are time-barred and so absurd, simple, and contrasting with his career, activity, and importance in the service, the application of the principles of PROPORTIONALITY AND RATIONALITY becomes urgent. Furthermore, the acts for which the dismissal is applied were not executed with a fraudulent or culpable attitude, and the alleged breaches of the duty of probity were never consolidated. He adds: The offenses do not constitute a crime, nor do they constitute nepotism. He transcribes a passage from the Constitutional Chamber - Vote No. 003933-98, of 9:59 a.m. on June 12, 1998, regarding the elements - legitimacy, suitability, necessity, and proportionality stricto sensu -, of the principle of rationality.\n\n**CRIMES AGAINST PROBITY:**\n\nA person is innocent until criminally convicted of a crime. Article 162 of the Tax Code provides as a cause for \"removal\": *(...) \"d) Commission of crimes, including attempt and frustration, whose penalties affect their good name and honorability.\"* Its cognizance - and declaration - corresponds to the Criminal Jurisdiction. There must be a criminal sentence that declares it. Meanwhile, the subject is presumed innocent and cannot be treated as guilty or suffer the consequences of a penalty that has not been imposed through procedural and constitutional mechanisms. The transcribed numeral speaks of *\"WHOSE PENALTIES AFFECT ...\"*, meaning it is when there has been a penalty imposed for the crime in question. Furthermore, of crimes that *\"... affect their good name and honorability\"* of the President. In the facts supporting the dismissal, we not only do not find any that fits the criminal legal type corresponding to those stipulated in Chapter V of the Law Against Corruption and Illicit Enrichment in Public Service (articles 45 to 62), but those also do not affect the good name or reputation of Mr. Nombre81321, who furthermore has not been tried for the hypothetical commission of any crime and, even less, criminally sanctioned. Knowing this legal provision (162 Ibidem), the dismissal of the President of the Tribunal is supported by the commission of crimes corresponding to the Law Against Corruption and Illicit Enrichment in Public Service, magnifying the facts to make them appear as acts of corruption capable of being considered crimes. Time-barred, false, and unfounded both, they are not criminal, they have not generated illicit enrichment, nor do they conform to the criminal types or the exhaustive list of causes for which removal can proceed, in accordance with Article 162 of the Tax Code.\n\n**REASSIGNMENTS REQUESTED BY THE MINISTRY OF FINANCE:**\n\nIt is recorded in the administrative file, that as a result of a Government need to resolve multiple appeals and objection proceedings before the T.F.A., since there were billions of colones in pending appeals to be resolved due to lack of personnel, the reassignment of several experts in Tax matters was carried out, this at the request of the Deputy Minister of Revenue, in order for the reassigned personnel to alleviate the workload of the Tribunal, which implied the non-collection of those billions of colones to the Treasury and that the Administration could not collect. Among the officials of the Office of Large Taxpayers (which is the one that has the experts), was a son of the plaintiff, whose eventual (not executed) reassignment to the Tribunal was proposed through the signature and endorsement of several heads, since the act had previously emanated from and been processed and authorized by other units. The transfer of Mr. Adrián Rodríguez is not requested or managed by his father unilaterally or capriciously, less so using his position to achieve it, as it is the very administration of the Ministry that requests the appointment of Mr. Rodríguez, the son.\n\n**THE REQUEST FOR EXAMS:**\n\nThe primary intention was that both Mr. Gerardo Soto and Mr. Adrián Rodríguez could be evaluated through exams, so that, if they passed them, they could be considered eligible to form a shortlist of substitutes, who would carry out the judicial function in case any of the permanent Judges were absent for any reason. This position, in the same way, could not have been held by Mr. Adrián Rodríguez, because having a kinship relationship with the President, the possibilities were reduced to being practically nil or to waiting for his father to retire. Mr. Rodríguez Arnesto has been a lawyer since 1997, a specialist in Tax Law with a master's degree in Fiscal Advisory from 2005. An official of the Office of Large Taxpayers from August 2007 until 2015. He joined the Tax Administration in February 1998. In this scenario, burdensome elements that could imply nepotism or influence peddling are again absent, because Mr. Nombre81321 does not use his position to place a son in a position of preference over others, but rather what he was doing was requesting suitability exams from the General Directorate of Civil Service. THEY WERE NEVER CARRIED OUT, BECAUSE THIS DIRECTORATE NEVER PERFORMED ANY EXAM ON MR. ARNESTO RODRÍGUEZ. The appointment to the shortlist of candidates is made by the Executive Branch, Mr. Nombre81321 lacking any authority to appoint a member of the T.F.A. Article 161 of the Tax Code provides: *\"...The Executive Branch must designate, individually, the permanent members and the substitutes of the Fiscal Administrative Tribunal, following a prior background competition, which must be formally conducted, with the intervention of the authorities established by the Civil Service Statute....\"* Despite what is stated in this fact, Mr. Adrián Rodríguez was never appointed to the T.F.A., so there was no direct and prejudicial injury to the detriment of the Administration. Moreover, suitability exams for such purposes have never been performed for him.\n\n**IV- OPPOSITION OF THE STATE** (and the Civil Service Tribunal) **:** To that effect, **IN SUMMARY,** it alleges:\n\n**1)** On that occasion, the documentary evidence that supported the dismissal proceeding was provided (folios 1 to 41 of the administrative file, Volume I). **2)** Evidence No. 2 does not certify that he was never disciplinary sanctioned. They are general data of the plaintiff, dates of entry and exit, position he holds, with its number, address registered in the personal file, salaries for the last six months, and the transcription of an article from the Regulation of Organization, Functions and Procedures of the Fiscal Administrative Tribunal. The certification N° DGPH-UAS-141-2014 of December 9, 2014, is outdated and does not respond to the current reality of the plaintiff, who at this date is already retired. **3)** The T.F.A. has maximum deconcentration by reason of the matter it hears. That independence from the Executive Branch is for its functioning and decision-making in the specialized matter. For the exercise of its competencies, as an organ of full jurisdiction and independent in its organization and functioning, by reason of the specialty of the matter it hears, whose rulings exhaust the administrative channel, as numeral 158 of the Tax Code provides. **But it does not justify the plaintiff attempting to abstract himself from his belonging to the Executive Branch and even presuming that by reason of this deconcentration he has no hierarchical superior.** An incorrect thesis. The Executive Branch has the authority-power to manage his dismissal and to have him sanctioned for the breach of his functional duties or the infraction of legal norms, as happened. Sanctioning power limited solely to due process, to guarantee that the actions of the General Directorate of Civil Service, the Civil Service Tribunal, and the Administrative Tribunal of Civil Service occur in compliance with the principles of justice, transparency, objectivity, impartiality, rationality, and proportionality, and access to the guarantees of his right of defense, as happened. Mr. Nombre81321 is a public official who held a position subject to the civil service regime. Ergo, Title I, Chapter IX of the Civil Service Statute, Law No. 1581 of May 30, 1953, is applicable to him, as well as the regulations on the procedure developed in Article 90 of its Regulation, Executive Decree No. 21 of December 14, 1954, in accordance with constitutional Article 192. It transcribes it. A similarity of arguments that were already addressed and resolved in administrative headquarters is evidenced. Article 158 of the Tax Code, Law 4755 of May 3, 1971, grants the Executive Branch the authority to increase the number of chambers, as justified by economic development and the real needs of the country. It transcribes its content. **4)** Article 161 of the Tax Code establishes that *\"The Executive Branch must designate, individually, the permanent members and the substitutes of the Fiscal Administrative Tribunal, following a prior background competition, which must be formally conducted, with the intervention of the authorities established by the Civil Service Statute. The formalities and substantive provisions cited in that ordering shall be observed equally for the removal of the members of this Tribunal\"* (emphasis supplied). Hence, in the case of Mr. Nombre81321, the formalities and substantive provisions established in said Statute and its Regulation for his removal were followed, who at that time was a member of the aforementioned Tribunal and held the Presidency. It is true that the legislator provided for the equalization of the remuneration of its members with the salary scale of the Judicial Branch, but it has not been only for that Tribunal. It then carries out an analysis of the remuneration established for the other existing Administrative Tribunals that share this type of salary equalization. **5)** It rejects it for what was indicated. **6)** Mr. Nombre81321 tries to evade his responsibility that he held as a high-ranking official in the Tribunal, since Article 162 of the Tax Code regulates a different factual situation from the one that was analyzed in dismissal proceeding 16032. Every official is subject to disciplinary responsibility in the event that it is proven that they committed a serious offense in the exercise of their functions. The issue of the removal of the members of the T.F.A. is different, when the Executive Branch itself, once the period of their appointment has ended, proceeds to re-elect the members in office, unless it declares any of them not eligible by virtue of having incurred a cause that warrants their removal. It transcribes the charges that were imputed to him by the Legal Advisory of the General Directorate of Civil Service, through Resolution AJD-RES-487-2014, of December 18, 2014, as a consequence - it says - of his irregular action in the exercise of his functions and failure to fulfill his duties, as the highest authority of the Tribunal (T.F.A.), where - it adds - the transfer is conferred upon him, granting him the period to oppose them, and present exculpatory evidence. Nombre193, from December 18, 2014 - the date on which he was notified -, had the possibility of referring to those charges and offering evidence. Furthermore, he is informed that this supposed conduct could be contravening what is stipulated in Articles 3 and 45 of the Law Against Corruption and Illicit Enrichment in Public Service, 81 subsection I) Labor Code, 91, 96, 97, 98, 110, 111 and 115 of the Autonomous Regulation of Services of the Ministry of Finance, Article 50 and 90 of the Regulation to the Civil Service Statute, 39 and 43 of the Civil Service Statute, as well as Articles 160 of the Tax Code and 5 subsection 5) of the Regulation of Organization, Functions and Procedures of the T.F.A. (folios 42 to 49. Volume I, of the file). **7)** Mr. Nombre81321 does not enjoy a special legal privilege (fuero) of labor stability. As an official that he was at the time, he was subject to disciplinary responsibility in the event that a fault warranting the application of a disciplinary sanction was proven. The contrary implies recognizing a limitation on that authority that the employer - public or private - has to apply the sanctioning regime to its collaborators that neither the Constitution nor the law establish. It would be like attempting even to disapply constitutional Article 192. It transcribes it. They enjoy labor stability, but they are not irremovable from their positions, in the event that the commission of a serious fault meriting dismissal without employer liability is accredited, after having guaranteed and respected due process and the right of defense, as is the present case. Unless they incur the commission of an act that the norm provides as a causal basis for the appropriateness of said rupture. It must be attributable to the worker and appear accredited prior to the extinction of the bond, through a procedure in which they are heard and allowed to offer and control evidence, the Administration complying with due process and respect for the right of defense, principles of Articles 214 and 308 of the LGAP. The concept of stability cannot be confused with that of irremovability in a public office - using the plaintiff's words *\"special legal privilege of labor stability\"*, totally inappropriate. It reiterates what was answered regarding facts three, four, and six. **8)** The criterion of the General Directorate of Civil Service, which is cited, is not binding. It is a general consultation about several tribunals on aspects related to the classification and valuation of positions. It basically transcribes norms without greater analysis and substantiation. Anyway, it reiterates what has already been stated. **9)** There was no omission of the preliminary ordinary administrative procedure, of Article 17 of the Regulation of Organization, Functions and Procedures of the TFA.\n\nNor is it an incurable defective procedural act (a figure specific to criminal law, inapplicable to administrative disciplinary procedures). Be that as it may, the failure to exhaust that unnecessary procedure [is irrelevant], since Articles 43 of the Civil Service Statute and 74 of its Regulations are applicable, which establish that for officials covered by the Civil Service Regime who commit eventual serious violations of the legal system, the administrative disciplinary procedure to be followed begins at the Dirección General de Servicio Civil, which is responsible for gathering information, hearing the parties, and examining the evidence. And once the procedure is completed, it is referred to the Tribunal de Servicio Civil, which issues the decision with full guarantee and respect for due process of law and legitimate defense for the parties. This final resolution can be appealed before the Tribunal Administrativo del Servicio Civil, where the administrative channel is exhausted. Furthermore —it reiterates— the members of the T.F.A. are officials of the Executive Branch for the purposes of Articles 140, subsection 2, 191, and 192 of the Constitution. It is documented that Mr. Nombre81321 began working at the Ministry of Finance on April 16, 1971, until July 1, 1980, when he resigned. He rejoined on May 1, 1983, until his retirement date, holding a permanent position # 010815 as a Full Member of the T.F.A. Through Resolution DG-128-99 of August 25, 1999, the Dirección General de Servicio Civil created 5 job classes for the T.F.A., which are included in the Institutional Manual of the Administrative Area of the Ministry of Finance. It was not until Resolution DG-079-2004 of April 23, 2004, that said Directorate created the descriptions and specifications of the \"job classes\" called \"Presidente del T.F.A.\" and \"Miembro del T.F.A.\", which are excluded, solely in terms of salaries, from the compensation structure specific to Executive Branch employees and are made equivalent to the Juez 4 class of the Judicial Branch. (See this Institutional Manual and the attached Resolution DG-079-2004 of 11:00 a.m. on April 23, 2004). The position held by Mr. Nombre81321 as Presidente del T.F.A. is covered by the Statutory Regime and therefore, according to Article 43 of the Civil Service Statute, [stating] that \"public servants may only be removed from their positions when they incur the grounds set forth in Article 81 of the Labor Code and Article 41, subsection d) of this law, in acts that constitute a serious infraction of this Statute, its Regulations, or the respective Internal Labor Regulations.\" Moreover, by virtue of the \"parallelism of forms (paralelismo de las formas)\", [which dictates] that a conduct or action must be issued by an organ following a specific procedure and can only be modified or repealed by that same organ, following the same procedure. Thus, if the Law empowers the Executive Branch to appoint and remove Members of the T.F.A., it has the obligation to carry out the corresponding legal actions for the exercise of disciplinary power to guarantee —in this case— the correct functioning of the service it provides, under optimal parameters of efficiency and effectiveness. Furthermore, Article 17 of the Reglamento de Organización, Funciones y Procedimientos of the T.F.A. is clear in indicating the grounds for removal of its Members, establishing as a ground in subsection f) \"Any other serious fault in the performance of their duties referred to in the Civil Service Statute, its Regulations, the Reglamento Autónomo de Servicios of the Ministry of Finance, and Article 81 and following and concordant articles of the Labor Code\". Hence, T.F.A. officials permanently appointed to the aforementioned classes who commit violations of the legal system classified as serious faults are subject to the dismissal management procedure protected under Chapter IX of the Civil Service Statute Law, as well as its development by Article 90 of its Regulations. In support of this, it transcribes passages from several judgments of the Sala Constitucional (1182-2001 of February 9, 2001, 6076-96 of November 8, 1996, 0499 of January 29, 1993, and 3781-2000). 10) and 11) It rejects them for the reasons stated. 12) It is not a fact but a transcription of Article 13 of the LGAP. 13) The testimony of Mrs. Nombre78002 must be analyzed in its entirety, not just excerpts. It has already been analyzed by the Tribunal de Servicio Civil, as has the testimony of the other witnesses in the administrative venue. His right of defense and due process of law were respected at all times. 14) It reiterates: in this case, Articles 43 of the Civil Service Statute and 74 of its Regulations apply. Furthermore, in accordance with Article 19 of the Reglamento de Funcionamiento y Organización of the Junta de Relaciones Laborales of the Ministry of Finance, published in La Gaceta 225 of November 19, 2015, which states that it is responsible for: \"a. Hearing, in consultation by either party or by complaint filed in writing before the Board, any act, action, or omission that may be considered a violation of public employment laws (...) c. Intervening at the request of a party and issuing the respective recommendation in disputes between officials, between these and the administration, the heads, or directorates, whether at an individual or collective level, except in dismissals for serious faults, workplace harassment, sexual harassment, or unfair labor practices;\" —it concludes— Articles 76 and 77 of the Reglamento Autónomo of the Ministry of Finance, Executive Decree 25271-H, while regulating the matter of the Junta de Relaciones Laborales, in subsection c) of the aforementioned Article 19, intervention and the issuance of the respective recommendation are excepted in cases of dismissals for serious faults —as in the present case— and for workplace harassment, sexual harassment, or unfair labor practices. Moreover, it was not until that La Gaceta of November 19, 2015, that the aforementioned Regulation was published, the moment from which the operational existence of the Junta de Relaciones Laborales of the Ministry came into effect. This is evident from Article 28: \"Effect: It is effective from its publication in the Official Newspaper La Gaceta.\" (See Regulation). If the dismissal management was filed on December 17, 2014, and the final resolution 12479 was issued on June 5, 2015, notified on July 7, 2015, even though in practice the Board was not operating in the Ministry, it is improper for it to have been subjected to prior consultation and advisory study. In any case, said Board does not have within its functions the issuance of a recommendation when a dismissal for serious faults is occurring, as stated. 15) It is not a fact. It refers to the response to the third fact. 16) It reiterates: in the statement of charges, Mr. Nombre81321 was informed of the legal and regulatory provisions that his actions could potentially contravene. Therefore, it is not true that the statute of limitations for the State's sanctioning power had expired regarding the charges alleged and ultimately proven, as will be analyzed subsequently. 17) From the study of the administrative file and the analysis of the merits carried out in the final resolution 12479, it can be concluded, without effort, that Mr. Nombre81321 was dismissed for his irregular actions in the performance of his duties as Presidente del T.F.A., specifically for having signed a resolution permanently transferring his son to the T.F.A., and also for intervening before the Dirección General de Servicio Civil to request that extraordinary exams be administered to two individuals, one of them his son, so they could join the eligible list for Member of said Tribunal. Acts that were reported to the Vice Minister of Revenue, and as a result of which, the dismissal management was initiated. Hence, regardless of whether the transfer resolution was subsequently annulled and whether his son and another official did not take the tests in question, those factual circumstances in themselves do not eliminate his responsibility, let alone his improper behavior, which undeniably caused the commission of serious faults in the exercise of his position, making him deserving of the maximum sanction, which is dismissal without employer liability. In support of this, it highlights—and transcribes—the arguments of the Tribunal de Servicio Civil on this point, to which we refer. Furthermore, it is strange that a former official with Mr. Nombre81321's professional profile is unaware that every public servant who performs in a service relationship with the State is subject to sanction if, after being granted the right of defense and due process of law, it is determined that he committed a serious fault. The State as employer must ensure that the actions of its subordinates conform at all times to legal and regulatory norms. It is not, therefore, a simple ground for removal, but serious faults, which constitute grounds for dismissal without employer liability. The fact that his actions may not be unlawful in no way diminishes his disciplinary responsibility and the evident violation of the duty of probity established in Articles 3 and 4 of the Law against Corruption and Illicit Enrichment in Public Office. 18) Mr. Nombre81321's case is not time-barred, since the proven facts were brought to the attention of Mr. Fernando Rodríguez Garro, Vice Minister of Revenue, and Fabricio Chavarría Bolaños, on November 27, 2014, by officials of the T.F.A., via an anonymous complaint, who requested that their names remain confidential, according to a note recorded in his agenda. Subsequently, that information was sent to the Legal Directorate of the Ministry on December 5, 2014, with the instruction to carry out the necessary investigations, which, under the principle of due process of law, would allow the real truth of the reported facts to be clarified. Consequently, on December 17, 2014, the Executive Branch (President of the Republic and the relevant Minister) filed the \"dismissal management (gestión de despido)\" before the Dirección General de Servicio Civil, meaning that by that date, the one-month period established by Article 603 of the Labor Code and Article 99, subsection c) of the Regulations of the Civil Service Statute had not elapsed. In short, from the complaint made to the Vice Minister's Office, the formation of the file, and the date on which the senior officials competent to initiate the plaintiff's dismissal became aware in a qualified or sufficient manner, the alleged statute of limitations did not apply. The Tribunal de Servicio Civil resolved in this understanding, and the Tribunal Administrativo del Servicio Civil confirmed. 19) It refers to the response to fact 17. It repeats: the statute of limitations has not applied. It reiterates the transcription of the charges imputed to him. 20) It is not a fact. It refers to the response to facts 17, 18, and 19. 21. It is not a fact. It rejects it in the terms it is drafted. The resolution ordering the transfer —RES-RP- 64-2011, of 3:25 p.m. on October 19, 2011— was signed by Mr. Nombre81321, despite knowing that the official being permanently transferred was his son, just like the resolution RES-RP-68-2011, which annulled the previous resolution. Therefore, it is this irregular action in the performance of his duties as Presidente del T.F.A. for which he is faulted; he, as a lawyer with years of experience in public service, knew that the intended transfer of his son was entirely improper. Therefore, the moment the senior official obtained proven knowledge of the irregular action, the dismissal management was submitted —within the legal deadline— to the Dirección General de Servicio Civil. 22) The anonymous complaint filed with the Vice Minister was specifically for the actions of Mr. Nombre81321 and not against other officials of the Ministry. Therefore, this \"fact\" does not relate to the plaintiff's claims, because it concerns a prior administrative procedure to be followed; consequently, the fact that the document in question had an approval does not exonerate him from his responsibility, especially since resolution RES-RP-64-2011 was annulled by the issuance of RES-RP-68-2011. 23) Mr. Nombre81321 omits that, in addition to the signature of Vice Minister Rowland Espinoza Howell on resolution RES-64-2011, his own signature and that of his son (Adrián Rodríguez Arnesto) also appear. 24) The period before the right to sanction expires is one month from the moment the fault was committed, or from when the employer or whoever holds the sanctioning power becomes aware of the facts and is effectively able to act. That is, in the case of the statutory regime, to file the dismissal management before the Dirección General de Servicio Civil. Let us remember that these \"Employer Representatives\" Mr. Nombre81321 refers to do not have the competence to process the dismissal before the Dirección de Servicio Civil. 25) It is ambiguous and imprecise. It does not specify or detail the \"Official Communication (Oficio)\". 26) Resolution RES-RP-64-2011 was annulled by resolution RES-RP-68-2011, which was signed by Mr. Nombre81321 and Vice Minister Rowland Espinoza Howell. 27) The anonymous complaint that Mr. Nombre81321 refers to was addressed to the Procurador de la Ética Pública at that time, Lic. Gilbert Calderón Alvarado, to the Área de Denuncias e Investigaciones of the Contraloría General de la República, to the then Director General del Servicio Civil, Lic. José Joaquín Arguedas Herrera, and to the Director de Gestión de Potencial Humano of the Ministry of Finance, Lic. Wilberth Cordero Fernández, with copies to the Auditoria Interna of the Ministry of Finance, the Sindicato de Empleados of the Ministry of Finance, to Mr. Albino Vargas Barrantes, in his capacity as Secretario General of ANEP, and to the Comisión de Control Político of the Asamblea Legislativa. Its objective was for: \"...the competent authorities to carry out the investigations legally required to determine the illicit nature of the described acts (Mr. Nombre81321, in the exercise of the powers granted as Presidente del Tribunal Fiscal Administrativo, issues resolution No. PRES-001-2012, where he appoints Lic.\n\nGerardo Danilo Soto Gamboa, as Processing Attorney for the Presidency of the Administrative Fiscal Tribunal, without respecting the legal regulations and procedures established by the Dirección General del Servicio Civil), and let the corresponding disciplinary and judicial liabilities be imposed against the officials allegedly involved, this with the aim of maintaining correct performance of duties in the exercise of public office of the Republic of Costa Rica and preventing acts of corruption that lead to appointments to government positions being made in an arbitrary manner, without respecting the respective eligible lists, in addition to avoiding any economic damage that this may represent against the Public Treasury and the credibility of the officials who have the privilege of exercising public office.\". Therefore: From its content, it is evident that these are facts different from those investigated and sanctioned in the dismissal proceeding -exp. 16032- which were brought to the attention of the indicated authorities. It reiterates: The facts attributed to Mr. Nombre81321 in dismissal proceeding 16032 were brought to the attention of Mr. Fernando Rodríguez Garro, Deputy Minister of Revenue, and Fabricio Chavarría Bolaños, on November 27, 2014, by officials of the T.F.A. 28) Refers to the response to fact eight. 29) From the verbatim quote of the statement by Soto Gamboa, particularly the response to question # 14, it is evident that he is a hearsay witness to whom the facts are not demonstrably known due to the imprecision in his response, and it seems to refer to the complaint made in a document dated January 9, 2013 -evidence 9 provided by the plaintiff- already analyzed in the response to fact 27, and therefore it is not related to the facts of dismissal proceeding 16032. 30) Refers to the response to facts 27 and 29. 31) Official Communication DGPH-AO-019-2013 dated January 25, 2013, was generated, which is related to the anonymous complaint filed on January 9, 2013, concerning the appointment of Lic. Gerardo Danilo Soto Gamboa as Processing Attorney for the Presidency of the T.F.A. which was made by Mr. Nombre81321, as President of the T.F.A., through resolution No. PRES-001-2012. Therefore, this is a different factual scenario from that of dismissal proceeding 16032. 32) Reiterates: the statute of limitations has not run. It is concerning that a legal professional considers the Dirección General del Servicio Civil as an employer's representative for the purposes of applying the statute of limitations. The thesis put forward contradicts doctrine and jurisprudence and tends to be a frustrated attempt to try to free Mr. Nombre81321 from his disciplinary responsibility. 33) Regarding the requests made before the Dirección General del Servicio Civil. The documentary evidence provides certainty of the actions taken by Mr. Nombre81321 in his capacity as President of the T.F.A. before that office \"(...) for the corresponding examination to be administered to form the list of eligible candidates for the position of Member of the Administrative Fiscal Tribunal, in accordance with the current requirements, to law graduates Gerardo Danilo Soto Gamboa... and Adrián Rodríguez Arnesto,\" according to a copy of official communication TFA-PRES-026-2012, addressed to Licenciado Joaquín Arguedas H, Director General of the Servicio Civil, with the original signature stamp of the Tribunal's President and the stamp of the Administrative Fiscal Tribunal, received by Recruitment and Selection on June 21, 2012. Again, by Official Communication TFA-PRES-053-2013 of May 29, 2013, signed by the Tribunal's President and received by the Dirección General del Servicio Civil that same day, Mr. Nombre81321 reiterates the request made in the preceding Official Communication. On May 29, 2013, by Official Communication TFA-PRES-054-2013, addressed to the head of the Unit for Selection and Administration of Competitive Examinations, and in response to an Official Communication addressed by that office to the Presidency of the Tribunal, Mr. Nombre81321 was informed that there is currently no extraordinary evaluation process in which the officials Soto Gamboa and Rodríguez Arnesto could participate; the Presidency of the Tribunal insists that the tests be administered in the same way they were administered to other officials so they can form part of the list of eligible candidates for the position of Member of the Administrative Fiscal Tribunal. All these official communications are mentioned by the President among the correspondence processed with the reference to the respective receipt. There is no doubt of the impropriety of Mr. Nombre81321 directly managing the administration of extraordinary tests to his son Adrián so that he could form the registry of eligible candidates for Members of the Administrative Fiscal Tribunal, considering that his son was not his subordinate at that time, as he was working in another budgetary program, namely in the Dirección General de Tributación Directa, in the Large Taxpayers Office, which was proven at the documentary level. Immediately thereafter - transcribes and highlights, making it his own - what was considered by the Tribunal Administrativo del Servicio Civil, in resolution 001-2016-TASC. 34 and 35) Reiterates: the statute of limitations has not run. From the documents - evidence 13- , from the content of the Official Communication DGPH-AO-78-2013 and the anonymous complaint of January 9, 2013, with a receipt date of January 16 of the same year, it can be inferred that they refer to resolution PRES-001-2012 by Mr. Nombre81321, a factual situation that is not related to the facts of dismissal proceeding 16032. 36) In a document issued at 08:45 on April 9, 2015, through resolution AJD-Res-162-2015 from the Legal Advisory Office of the Dirección General del Servicio Civil, at 14:30 on March 19, 2015, the witness Rowlan Espinoza Howell was summoned, who did not appear on the date and time set for the taking of testimony and because the file only contains one document sent by the representation of Mr. Nombre81321 alluding to the impossibility of summoning the aforementioned witness, and given the non-appearance of Mr. Espinoza Howell, the investigating body declared said testimony impossible to take; therefore, there is no violation of due process and the right to defense in this point. Regarding the substitution of Espinoza Howell by Mr. Guillermo Antonio Méndez Murillo, because Mr. Nombre81324 argued that it was not possible to summon him or speak with him, a request received on April 8, 2015, it was addressed through resolution AID-195-2015 of the investigating body at 09:40 on April 9, 2015. Transcribes the ruling. Therefore, it is not true that it was not addressed. On the contrary, the investigating body addresses and resolves it. 37) Is not a fact. Refers to the response to fact 36. 38) Is not a fact, rejects it in the terms in which it is drafted. Refers to the response to fact 36. The evidence offered by Mr. Nombre81321 in the administrative venue should have been processed by him, in order to substantiate his theory of the case (doctrine of Article 317 of the CPC.) 39) The State has no record of the physical location of the Tribunal Administrativo del Servicio Civil. Regardless, it is irrelevant for resolving the merits of this matter. 40) True. 41) The decision to dismiss without employer liability is duly motivated, adequately grounded, and is not violative of the principle of proportionality. From reading the file and the faults imputed and proven, their seriousness is evident. The actions carried out by Mr. Nombre81321 to try to benefit his son, first with a transfer of his position to the Program of which he was the Director at the time of the facts, without giving prior notice to the authorities and technical units involved in processing and signing the transfer resolution, and second, with direct intervention at the Dirección General del Servicio Civil to have extraordinary tests administered so that he could form the registry of eligible candidates for Members of the Tribunal he presided over, his son being the official Adrián Rodríguez Arnesto, a lawyer from the Large Taxpayers Office of the Dirección de Tributación Directa, are serious faults. These statements are documented in the file and based on different testimonies provided for that purpose. Mr. Nombre81321 was unable to disprove the facts of which he was accused and imputed. Mr. Nombre81321 failed in the elementary duties, obligations, and responsibilities that the service relationship with the Administration imposed on him, especially considering that he is an official whose experience, years of service, and rank demanded with greater exigency a probative behavior in all circumstances, and with greater reason in the administrative functions in his condition as Director of the T.F.A. Program. He violated the principles of good faith, loyalty, and honesty that govern the employment relationship, in addition to the principle of legality that governs the actions of every public official and the duty of probity in the exercise of the powers and functions conferred as an authority in a hierarchical rank, which consequently caused a loss of objective trust, due to the serious fault he incurred. 42) Is not a fact. As is admitted, they were private individuals who ranted against him and damaged his honor, good name, and professional reputation. Therefore, they would be the ones who must answer and not the State. 43), 44) and 45) Leaves them subject to proof.
REGARDING NULLITIES:
The dismissal procedure adheres to the provisions of Article 161 of the Código Tributario and 43, 14, and 190 of the Estatuto del Servicio Civil. Transcribes what the cited Article 161 establishes. According to which, it rejects that the provisions of the Estatuto del Servicio Civil are not applicable to the President of the T.F.A. If it stipulates that the Executive Branch possesses the power to appoint and remove the members of the T.F.A. with the intervention of the rules and procedures of the Servicio Civil framework, then the provisions of numeral 43 of the Estatuto del Servicio Civil are also applicable to him, whereby any dismissal without employer liability processed against an official covered by the Servicio Civil Framework must be filed before the Dirección General del Servicio Civil, and heard and resolved by the Tribunal del Servicio Civil. This is confirmed by Articles 14 and 190 ibídem . Consequently, the Tribunal del Servicio Civil has jurisdiction to hear and resolve the dismissal proceeding. The validity of the Regulation on the organization, functions, and procedures of the T.F.A. -Decreto Ejecutivo 32249-H-, cited by Mr. Nombre81321, for purposes of application, interpretation, or normative integration, is subject to such provisions being consistent with the express legal norms existing on the specific regulatory matter in question, in addition to being understood as subject, likewise, to the legal principles that emerge directly from the law itself. In consideration of the founding principle of the supremacy of the Law. The provisions in said regulation would be contravening what is regulated in constitutional articles 191 and 192. Consequently, the argument that the procedure stipulated in Article 17 in fine, of Decreto Ejecutivo 32249-H, is binding and mandatory is not acceptable, because the principle of special rule applies in this specific case - according to his statement -. Furthermore, the summary procedure provided for in the Estatuto del Servicio Civil guarantees his right to defense and due process. Therefore, the first claim must be rejected. On the other hand, it would seem that Mr. Nombre81321 is confused about the independence granted to him by Law to exercise the functions proper to the jurisdiction of the T.F.A. because that is one thing, and the power held by the Executive Branch to apply the disciplinary framework, if the commission of a serious fault is proven, is something quite different, as is requesting dismissal without liability for the State. Nor can it be concluded that they are trust employees, in the terms established by Article 4 of the Estatuto del Servicio Civil, and even less that they have a special protective jurisdiction. Said Estatuto applies to the members of the T.F.A. Their independence is for the execution of their competencies. It reiterates the content of Article 161 of the Código Tributario. Transcribes it. Concludes: the failure to exhaust the procedure argued by Mr. Nombre81321 is unnecessary, due to the application of Articles 43 of the Estatuto and 74 of its Regulation. It comments on this. In support of which, it outlines rulings from the Sala Constitucional. Therefore, this first alleged violation must be rejected as improper and unfounded.
Regarding the second omission. Regarding the consultation with the Junta de Relaciones Laborales. Reiterates what was already stated in the response to fact 14. . Regarding the third omission. Regarding taking the statement from Mr. Rowland Espinoza Howell. Reiterates what was already stated in the response to fact 36. According to the foregoing, claims 1, 2, and 3 must be rejected as improper and lacking any valid foundation.
STATUTE OF LIMITATIONS FOR FAULTS CHARGED: The dismissal proceeding -exp. 16032- was instituted within the one-month period of numeral 603 of the Código de Trabajo and 99 of the Regulation to the Estatuto del Servicio Civil, calculated from the moment the person competent to institute the dismissal had proven knowledge of the faults. It reiterates what was previously indicated when responding to the facts of the lawsuit on the subject. According to the foregoing, the subsidiary claim 4 is also improper.
DISPROPORTIONALITY: Attention is drawn to the desperate way in which Mr. Nombre81321 tries to sell an untarnished image as a public official over his long career in the Administration. However, precisely because of that, it is undeniable to consider that, in his position as President of the T.F.A., Dean of the Asociación Iberoamericana de Tribunales de Justicia Fiscal o Administrativa, a legal professional, with so many years working in the Administration, and with proven experience in managing personnel under his charge, he ignored the prohibition of Article 9, subsection b), of the Regulation to the Estatuto del Servicio Civil, and even more so, that the transfer of his son to the Tribunal could cause a conflict of interest due to the position of both in the Tribunal, with the signing of resolution RES-RP-64-2011, such that his action becomes irregular, considering that the evidence he provides, both at the level of the dismissal proceeding and in the judicial venue, does not include any document of warning or opposition regarding said transfer; on the contrary, the three parties involved signed the resolution transferring his son to the Tribunal he presided over without any qualms. Under these circumstances, the conduct of Mr. Nombre81321 departs from the scope and principles that administrative jurisprudence has determined constitute the principle of probity.\n\nHis conduct is contrary to the fundamental principles that inspire and regulate the public service, among them that of probity (probidad) as a basic obligation of every public official and which finds its origins in article 113 of the LGAP. It transcribes its content. The same occurs with the second charge imputed and proven, related to the direct requests made before the Dirección General de Servicio Civil - accredited in the administrative file -, where one can verify the several actions he undertook so that the corresponding examinations would be applied to them to join the list of eligible candidates for the position of Member of the T.F.A. in accordance with the requirements in force for attorneys Gerardo Danilo Soto Gamboa (a close friend of the plaintiff) and his son Adrián Rodríguez, which makes it improper that, using his position as President of the T.F.A., he would directly arrange the application of extraordinary tests for his son. Such conduct evidences and manifests a direct interest, alien to the public purpose that the Public Administration must protect. In that context, the sanction imposed on Mr. Nombre81321 is proportional and reasonable in relation to the accredited facts and the seriousness of his actions, which gave no grounds to apply a sanction other than dismissal without employer liability, having been accredited the commission of two serious faults incompatible with the exercise of any public office.\n\n**CRIMES AGAINST PROBITY:** Mr. Nombre81321 is not dismissed because he committed a crime, as can be inferred from the content of administrative file 16032. Quite the contrary: he is dismissed for the actions undertaken to try to benefit his son, first with a transfer of his position to the Program of which he was the Director at the time of the facts, without prior notice to the authorities and technical units involved in the processing and signing of the transfer resolution, and second with the direct intervention at the Dirección General de Servicio Civil so that extraordinary tests would be carried out so that he could form the registry of eligible candidates for Members of the Tribunal that he presided over, his son being the official Adrián Rodríguez Arnesto, an attorney from the Large Taxpayers Office of the Tax Directorate. These are serious faults in violation of the duty of probity. These statements are documented in the file and supported by different testimonies given to that effect. During the development of the dismissal procedure, at no procedural stage did Mr. Nombre81321 manage to disprove the facts that were charged and attributed to him. Mr. Nombre81321 failed in the elementary duties, obligations, and responsibilities that the service relationship with the Administration imposed on him, especially since he was an official whose experience, years of service, and seniority demanded with greater exigency upright behavior in all circumstances, and with greater reason in the administrative functions in his capacity as Director of the T.F.A. Program. He broke the principles of good faith, loyalty, and honesty that govern the employment relationship, in addition to the principle of legality that governs the actions of every official and the duty of probity in the exercise of the powers and functions conferred upon him as an authority in hierarchical rank, which consequently caused a loss of objective trust, due to the serious fault incurred by Mr. Nombre81321, which gave grounds for the Tribunal de Servicio Civil to uphold dismissal procedure 16032 and consequently authorize the Executive Branch to dismiss him without employer liability.\n\n**REGARDING THE REASSIGNMENTS REQUESTED BY HACIENDA AND THE REQUEST FOR EXAMINATIONS:** Mr. Nombre81321 first contradicts himself regarding what is narrated in the facts of this lawsuit and what is stated in these sections; he even accepts his participation in the facts for which he was charged and which were ultimately accredited. A couple of examples: he expressly states: \"*Regarding the recommendation made by the plaintiff regarding the possibility of applying the examinations for member of the Tribunal Fiscal Administrativo to both Mr. Lic. Gerardo Soto and Lic. Adrián Rodríguez, the first intention was that both could be evaluated through said exams so that, in case of passing them, they could be considered eligible to form a shortlist of substitutes; who executed the judging in case any of the tenured Judges were absent for any reason*. This position likewise could not have been held by Lic. Adrián Rodríguez, because *having a family relationship with the President*, the possibilities were reduced to being practically nil or *waiting for his father to retire*.\" (emphasis supplied). Mr. Nombre81321 has tried to deny the possibility that the Executive Branch has to request his dismissal. However, in this section, he states that: \"*The appointment to the shortlist of candidates is made by the Ministerio de Hacienda and the Presidential House, that is, the Executive Branch, Mr. Nombre81321 lacking the power to appoint a member of the Tribunal Fiscal Administrativo. See to this effect what is provided in article 161 of the Tax Code.*\" Finally, with respect to both imputed faults, he refers to the response made to the facts of the lawsuit.\n\n**REGARDING THE LACK OF CURRENT INTEREST:** In this respect, according to the evidence attached, documents dated July 15, 2016, report that Mr. Nombre81321 submitted his resignation from the position of President of the T.F.A. number 010815, assigned to said Tribunal, effective September 1, 2016, for the purpose of availing himself of his pension under the I.V.M. regime of the C.C.S.S (folios 1 to 4 of the certified evidence provided). In accordance with this, and in light of the annulment claims -1, 2, 3, and 4-, for reinstatement and payment of lost wages, plus all his labor rights suppressed by the dismissal, including salary increases for any reason -claim 5-, as well as the indemnity amounts requested -claim 6-, he deems there exists a supervening decay of current interest regarding the resolution of the cited petitionary items, since Mr. Nombre81321 has already resigned from the position he held as President of the T.F.A., to avail himself of his pension, which has already taken effect, as accredited by the attached evidence. Therefore, declaring the nullity of the resolutions issued in dismissal procedure 16032 lacks practical interest since the plaintiff is already a retired person, and due to the consequences that a declaration such as the one at hand would entail, it becomes unnecessary to hear the merits of this matter. Furthermore, the requested precautionary measure was declared inadmissible due to this supervening lack of current interest, as recorded in resolution No. 2332-2016-T, of the Tribunal Contencioso Administrativo, at 2:20 p.m. on October 13, 2016, currently final (Precautionary Measure File 16-000817-1027-CA).\n\n**LACK OF STANDING TO SUE AND TO BE SUED FOR CLAIMING AGAINST THE TRIBUNAL DE SERVICIO CIVIL:** He requests its acceptance because it does not have the legal capacity to appear as a defendant, whose representation corresponds to the State. This is the reason why Mr. Nombre81321 chose to jointly sue the State and said Tribunal.\n\n**REGARDING SUBJECTIVE MORAL DAMAGES:** He deems: a situation that must be discarded in this case, since from an objective analysis of the administrative procedure, even though Mr. Nombre81321 was finally sanctioned with dismissal without employer liability, in practice said sanction was never executed because the Tribunal Contencioso upheld his provisional reinstatement. The plaintiff himself has been disabled for long periods until he retired. Therefore, where is the damage? On the other hand, the press coverage and the comments that citizens may have made cannot be taken as a basis to accredit liability to the State, which had no interference in it. Thus, Mr. Nombre81321 does not accredit, does not demonstrate, or specify the existence of damages caused as a consequence of the State's action. He relies on simple suppositions, without probative support. He does not establish the necessary and adequate conditions to uphold that claim for redress, its rejection being appropriate. There is NO proof, nor does he demonstrate, that the State has any direct responsibility for the alleged subjective moral damage he says he suffered. In any case, there is no subjective moral damage because Mr. Nombre81321 was found responsible for the faults. Therefore, it cannot be considered that the procedure was devoid of essential content, since the purpose for which it was instituted was fulfilled: to clarify the real truth of the facts. It is a requirement that it be proven that some type of damage has been produced -article 317 CPC-, which must be discarded in this case. As well as the accessory claim for cancellation of interest on the items to be granted and indexation, for being inappropriate.\n\n**REGARDING THE PAYMENT OF COSTS:** The claim for condemnation is inappropriate due to the lack of merit of the lawsuit.\n\n**V.- OPPOSITION OF FERNANDO ALONSO RODRÍGUEZ GARRO:** To this effect, **IN SUMMARY,** he affirms:\n\n**1)** The dismissal procedure was initiated before the Dirección General de Servicio Civil by the President of the Republic and the Minister of Finance, Helio Fallas V. **2)** Not personally known to him. He abides by the evidence. **3) to 17)** Not personally known to him. They are not facts but considerations. He abides by the evidence. **18)** Mr. Nombre81321 attempts to attribute responsibilities to him for actions in which he did not participate. **19) and 20)** Not personally known to him. They are not facts but considerations. He abides by the evidence. **21), 22), 23), and 24:** Mr. Nombre81321 attempts to attribute responsibilities to him for actions in which he did not participate. In 2011 he did not hold the position of Vice Minister of Revenue. There is a contradiction. On one hand, Nombre20572 claims administrative independence for the T.F.A. that goes beyond what the law itself establishes, and on the other, he bases his defense on procedural acts that, precisely because of the link existing between both bodies, must be issued by the administrative hierarchical superior, whether the Vice Minister or the Minister, as applicable. **25), 26), 27), 28), 29, and 30)** Not personally known to him. They are not facts but considerations. He abides by the evidence. **31)** They refer to situations supposedly occurring prior to his assumption of the position of Vice Minister of Revenue. **32), 33), 34), 35), 36), 37), 38):** Not personally known to him. They are not facts but considerations. He abides by the evidence. **39)** Again there is a contradiction in trying to mislead the Tribunal by establishing a link between Casa Presidencial and the Tribunal de Servicio Civil, when this Tribunal, like the Tribunal Fiscal Administrativo, are improper hierarchical superiors in their respective areas. **40)** He acknowledges the existence of agreement 0003-2016-H which he signed acting as Acting Minister of Finance insofar as the Minister of Finance and First Vice President of the Republic, Helio Fallas V., was at that time exercising the Presidency of the Republic, which is stated in the agreement. He admits the existence of official letter DM-202-2016, signed by the Minister of Finance Helio Fallas Venegas. **41)** Not personally known to him. They are not facts but considerations. He abides by the evidence. **42)** The Ministerio de Hacienda issued a press release communicating the decision taken by the Tribunal del Servicio Civil. However, he has not had any personal participation in what is indicated by Mr. Nombre81321. **43)** The policy of the Ministerio de Hacienda is that every public communication is communicated (sic) both to the press and internally within the Ministry. In this case, the same procedure was followed. However, he has not had any personal participation in what is stated by Mr. Nombre81321. **44) and 45)** Not personally known to him. He abides by the evidence.\n\n**LACK OF PASSIVE STANDING:** The only claim related to his person is the one referring to the payment of costs and the alleged moral damages. None of the acts whose annulment is requested have been issued by him, nor does their annulment or maintenance fall to him as Vice Minister of Revenue. None of the facts that refer to the Vice Minister of Revenue refer to his person, but to the vice minister of the Chinchilla Miranda Administration. None of the facts refer to actions by his person in the exercise of the position of Vice Minister of Revenue, nor to actions he may have taken in a personal capacity. According to articles 107 and 119 of the Reglamento Autónomo de Servicios of the Ministerio de Hacienda, Decreto 25271-H, the Minister is responsible for hearing the serious faults incurred by the servants of the Ministry and authorizing their dismissal, and according to article 106 ibidem the sanction corresponding to dismissal without liability will be recommended to the Minister by the Legal Directorate. According to article 12, subsection 4) of the CPCA, any other person who has been called to the process as responsible, in their functional or personal capacity, for the acts or actions being challenged within the process shall be considered a defendant. None of the challenged acts have been issued by his person in the exercise of the position of vice minister. Article 47 of the LGAP establishes the functions of the Vice Ministers and that they substitute the Minister in his absences. The facts referring to the participation of the Vice Ministry of Revenue correspond to acts and actions prior to his appointment to the position; in fact, they correspond to facts and actions prior to the Solis Rivera Administration. The administration of dismissal procedures is not the responsibility of the vice ministers. Being the competence of the Minister, they are carried out by the Legal Advisory of the Minister, and in the specific case, being a direct dismissal procedure, the competence does not fall solely on the Minister, but on the Executive Branch in the strict sense, that is, the Minister and the President of the Republic, without there having been any mediation or participation of his in it, as it is a matter beyond his competencies. The reported facts complied with the procedures established for such purposes and were reviewed and endorsed by Servicio Civil and the Tribunal de Servicio Civil, in which he also had no participation. Therefore, the prerequisites to consider him a defendant are not met, as there is no participation in the procedures or in the issuance of the acts whose annulment is requested.\n\n**LACK OF CURRENT INTEREST:** The claims regarding the nullity of the dismissal procedure, reinstatement, and payment of lost wages lack current interest. Mr. Nombre81321 filed a precautionary measure ante causam, granted in the first instance, for which the execution of the dismissal was suspended and his reinstatement was ordered. Thus, the dismissal was not made effective until October 13, 2016, the date on which, through resolution 2332-2016, the granted measure was declared inadmissible. However, it is documented that Mr. Nombre81321 had already submitted his resignation from the position of President of the T.F.A. by note presented on July 16, 2016, a resignation that is valid, according to what Mr. Nombre81321 himself indicated, effective September 1, 2016. The right to exercise an action such as the present one is based on the interest legally protected by the law, so it is required that the success of the action translates into a benefit for the plaintiff; he must have a right at stake in the litigation, which is why it is essential that the plaintiff has interest, because a right is nothing other than the interest protected by the law; if interest is lacking, protection is unnecessary and the right to sue in judicial proceedings disappears. Not only is there a lack of current interest, as of the resignation presented by Mr. Nombre81321 upon availing himself of his pension, but said action makes the cause giving rise to the conflict and the object of the process disappear, since, in the event that the nullity of the actions taken by the Executive Branch, Servicio Civil, and Tribunal del Servicio Civil were declared, the effects of the resignation presented by Mr. Nombre81321 persist. Therefore, there is a lack of current interest with respect to the claims for nullity of the dismissal procedure, reinstatement, and payment of wages and other salary components.\n\n**LACK OF RIGHT:** Regarding moral damages: His person has had no participation whatsoever in the facts being reported, so any condemnation of his person on this point is completely unfounded. Additionally, it is inappropriate for the following reasons: Mr. Nombre81321 does not explain, state reasons for, or substantiate what the alleged damages claimed consist of, nor does he provide any element of proof that allows establishing their existence and the causal link between them and the accused administrative conduct. Nor has he demonstrated that it is not in accordance with the law. According to the burden of proof, Mr. Nombre81321 has the obligation to provide sufficient evidence to demonstrate the existence of the damage derived from the State's conduct, or in this case from his person. Evidence that he has not provided. And furthermore, by application of the rogatory principle. He does not detail in which specific aspects he seeks to be compensated. The Judge cannot supplant that deficient formulation of the lawsuit, reason for which the claim must be rejected ad integrum. In this sense, he cites ruling 676 of 11:40 a.m. on October 15, 2003, of the First Chamber of Cassation.\n\nThus, the subjective moral damage occurs when a person is placed in a situation they should not have to endure, a situation that has not been demonstrated in this particular case. On the contrary, the Ministry has acted in accordance with the law and in application of the resolutions issued by the competent bodies and which confirmed the procedures followed, so acknowledging any amount for moral damage in favor of Mr. Nombre81321 would mean he benefits from acts that the competent authorities already considered irregular to such a degree that they warrant the sanction of dismissal. It would imply the plaintiff benefits from his own willful misconduct. Furthermore, no existence has been demonstrated of any administrative conduct, or of any action by his person, as an official, that implies abnormal functioning, much less a personal obligation to respond for the damages caused to Mr. Nombre81321. It requests that the claim be declared unfounded in all its aspects and that Mr. Nombre81321 be ordered to pay both sets of costs plus interest from the finality of the judgment until its payment.\n\n**VI.- OPPOSITION OF THE DIRECCIÓN GENERAL DE SERVICIO CIVIL:** In **SUMMARY,** it alleges:\n\n**1)** The dismissal procedure (gestión de despido) is a summary procedure (procedimiento sumario) that finds its legal basis in Article 43 of the Estatuto de Servicio Civil, in which three independent bodies act with autonomy and competence: The Dirección General de Servicio Civil, which instructs the case file, the Tribunal de Servicio Civil which analyzes the merits of the file and makes the decision in first instance, and the Tribunal Administrativo which, in second instance, confirms or revokes what was decided. **2), 3), 4), 5), 6) and 7:** They are not within its knowledge and it adheres to the literal text of the evidence. **8)** It shows subjective, rather hasty lucubrations, which lead to a \"reckless\" attitude that could be misleading. The Dirección de Servicio Civil administratively processed the special Dismissal Procedure for Mr. Nombre81321 with the guarantees of due process and the right of defense, in accordance with Article 43 of the Estatuto de Servicio Civil and 90 of its regulations. He always had the means to defend his interests at his disposal. Without it being that, through this action, he seeks to defend aspects that could have been alleged at the opportune procedural moment to do so. Currently, it is considered unfounded by full right. **9) to 27)** They are facts not within its knowledge and it adheres to the Literalness of the evidence provided. **28), 29 and 30)** Although the Dismissal Procedure case file was processed at the Dirección General and it was at that Venue that the statements of the offered testimonial evidence were taken, they are located within the case file that is in the custody of the Tribunal de Servicio Civil. **31) to 45)** They are facts not within its knowledge and it adheres to the literal text of the evidence.\n\n**ANALYSIS OF THE SPECIFIC CASE:** The Dirección General de Servicio Civil has not participated in the final decision of the Tribunal de Servicio Civil. The facts or claims referring to actions or omissions cannot be attributed to it because it is not competent in the matter, because it lacks competence over what is evident in this process. **Regarding the participation of the Dirección General de Servicio Civil:** Three different bodies, with functional and criteria independence, intervene in the special summary dismissal procedure: **a.-** The Dirección General de Servicio Civil, which does not rule on the merits, but receives all the evidence offered, following the procedure of the Estatuto de Servicio Civil. The resolutions of the investigation are notified through the indicated means and there is the opportunity to appear at the hearings accompanied by one's lawyers and to present all evidence. **b.-** The Tribunal de Servicio Civil, rules on the merits in the first instance. Which assesses the evidence received and issues a resolution authorizing the dismissal or denying it. In this case, it considered the evidence provided sufficient to declare responsibility for the attributed faults. **c.-** The Tribunal Administrativo de Servicio Civil rules in second instance through an appeal (recurso de apelación), in the event that the Tribunal de Servicio Civil had authorized the request to dismiss. In this case, it confirmed the issued decision and endorsed the authorization to dismiss. Following this, it transcribes – highlights – various rulings, thirteen in total, jurisprudence of the Sala Constitucional related to the constitutionality of the special summary dismissal procedure, contained in Article 43 of the Estatuto de Servicio Civil. (resolutions: 1993-00499, expediente 92-003864-0007-CO; 1994-00927, expediente 94-000943-0007-CO; 1994-05227, expediente 92-002303~0007-CO; 1998-07469, expediente 98-005343-0007-C0; 2000-03342, expediente 00-001053-0007-CO; 2000-1 1 164, expediente 00-009155-0007-CO; 2001 .01 1 82, expediente 00-009151-0007-CO; 2001 -01 530 expediente 01 -001 281 -0007-CO; 2001 -06351, expediente 01-003686-0007-CO; Resolución 2002-09360, expediente 02-007405-0007-CO; 2004-03128, expediente 04-012454~0007-C0; 2004-12367, expediente 04-003246-0007-CO; and 2005-1 5600, expediente 05-0131 91-0007-CO).\n\n**ON THE CLAIMS:** It opposes the **first and second claim** because the dismissal procedure was a procedure carried out in accordance with the law, under the principle of due process, guaranteeing Mr. Nombre81321 the right to his defense. It does not refer to the **third, fourth, and fifth claim**, as it is not within the purview of the Dirección General de Servicio Civil. It opposes the **sixth claim** since Mr. Nombre81321 relies on facts that do not prove the alleged illegality of the dismissal procedure; and therefore it is not appropriate to recognize any of the indicated payments, considering that regarding assessing an alleged subjective moral damage, this is *\"in re ipsa\"* because it is the generating act itself that causes this type of grievance, and the evidence is obtained through \"presumptions of man\" (presunciones de hombre), which are inferred from signs. It opposes the **seventh claim**, and requests that costs be charged in their entirety to Mr. Nombre81321 for the reckless process filed against the Dirección General.\n\n**VII.- THEORY OF THE CASE:** In **SUMMARIZED** form, the plaintiff's legal theses are the following: **Nullities of the procedure causing nullity of the final act (nulidades del procedimiento causantes de nulidad del acto final): 1)** Based on articles 160 and 162 of the Código Tributario and 17 in fine of the Reglamento de organización, funciones y procedimientos del Tribunal Fiscal Administrativo Nombre20572 omission of the ordinary administrative procedure -prior- of the L.G.A.P. **2)** Based on articles 76 and 77 of the Reglamento Autónomo de Servicios del Ministerio de Hacienda, Nombre20572 omission of the prior consultation with the Junta de Relaciones Laborales of the Ministry. **3)** Omission to receive the statement of Mr. Howell, Viceministro de Ingresos, without any basis or reason, violating due process and the right of defense. **Prescription of the disciplinary action for the imputed faults (Prescripción de la acción disciplinaria de las faltas imputadas).** Based on Article 603 of the Código de Trabajo and 99 of the Reglamento del Estatuto de Servicio Civil. And on the fact that the employer had direct knowledge of the grounds for its dismissal petition years before the start date of the procedure. **Disproportionality between the facts underlying the dismissal request and the sanction that was applied.** Which Nombre20572 based on the importance – economic and legal – of the function performed by Mr. Nombre81321, as President of the T.F.A., his international recognition, his life of honesty and excellence in his management, with a clean record; his career, activity and importance in the service; and, because the acts were not executed with fault or willful misconduct, were never consummated and do not constitute a crime or nepotism. **Crimes against probity:** Nombre20572, the commission of crimes corresponding to the Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública was imputed to him, but none of the facts that support the dismissal fits into the criminal legal definition of the crimes stipulated in Chapter V of that Law (articles 45 to 62), nor do they conform to the exhaustive list of causes for which removal can proceed, according to Article 162 of the Código Tributario. **Reassignments requested by Hacienda:** Nombre20572, they complied with a government need, due to lack of personnel in the TFA, at the request of the Viceministro de Ingresos, among which was the son of Mr. Nombre81321 whose eventual (not executed) reassignment to the Tribunal was proposed through the signature and endorsement of several department heads, since the act had previously emanated from, been processed by, and authorized by other units. His transfer was not requested or managed by Mr. Nombre81321 unilaterally or arbitrarily, taking advantage of his position. It was the Administration of the Ministry that requested the appointment. **The request for examinations:** It was with the intention that they could be assessed through examinations, so that, in the event of passing them, they could be considered eligible to form a shortlist of substitutes, who would perform the judicial function in the event that any of the permanent Judges were absent for any reason. It could not have been held by his son, due to having a kinship relationship with Mr. Nombre81321, until he retired. He highlights his son's academic virtues. Therefore, he could not assume nepotism or influence-peddling, since Mr. Nombre81321 does not use the position to place a son on a level of preference over others. The appointment is made by the Poder Ejecutivo, not Mr. Nombre81321. He was never appointed to the T.F.A., so there was no direct and harmful injury to the detriment of the Administration. Moreover, suitability examinations for such purposes have never been administered to him.\n\n**VIII.- CRITERION OF THE TRIBUNAL:** Having analyzed the arguments of the parties and reviewed the basic legal framework and the evidentiary content of the case records, the Tribunal determines that the claim lacks legal basis and must be dismissed, for the following reasons:\n\n**ON NULLITIES OF THE PROCEDURE CAUSING NULLITY OF THE FINAL ACT:** The alleged defects (vicios) are rejected, for the following:\n\n**A) ON THE OMISSION OF THE ORDINARY ADMINISTRATIVE PROCEDURE -PRIOR- OF ARTICLE 308 OF THE L.G.A.P.** This supposed omission is argued based on articles 160 and 162 of the Código Tributario and 17 in fine of the Reglamento de organización, funciones y procedimientos del Tribunal Fiscal Administrativo. On the basis that the T.F.A. is independent of the Poder Ejecutivo. From which it follows that Mr. Nombre81321 is not an employee of the Ministerio de Hacienda, he has a special legal immunity (fuero) of job stability. His removal occurs only by non-reelection, at the end of the term and provided that the commission of any of the grounds of numeral 161 of the Código Tributario has been verified. Therefore, the ordinary administrative procedure of Article 308 of the LGAP should have been carried out previously. The allegations – affirmations of \"facts\" 3 to 17 – to which we refer, are rejected as unfounded, based on the considerations on the subject, already outlined in judgment No. 119-2016-VII, of 14:45 hours on November 29, 2016, of Section VII, which this Section II of the Tribunal shares, which are as follows:\n\n**\"V.- GENERALITIES ABOUT THE TRIBUNAL FISCAL ADMINISTRATIVO.** Given the controversy known here, by virtue of the position held by the plaintiff as President of said administrative body, and because he considers that he was not subject to any disciplinary regime, due to the autonomy and independence he held by reason of his position, this Chamber considers it necessary to make a normative recount of the main postulates of our legal system that address the issue, including the legal nature of the cited body and the employment regime of its officials, which will lead us to the conclusion that the plaintiff's appreciation is erroneous. Thus, it is worth noting first that the Tribunal Fiscal Administrativo was created by Ley N° 3063 of November 14, 1962, \"Reforma a la Ley de Impuesto Sobre la Renta de 1946\", whose Article 34 expressly stated, and for what is of interest here, the following: *\"Se crea el Tribunal Fiscal Administrativo de la Tributación Directa, which shall hear on appeal: a) Claims filed by income and territorial tax taxpayers, disagreeing with the resolutions issued by the Department of Income Tax or with appraisals of their properties to determine and settle taxes and sanctions; and b) Other functions entrusted to it by law. The Tribunal Fiscal Administrativo shall be a full-time Court, composed of two Lawyers, one Civil Engineer, one Agronomist and one Certified Public Accountant, persons who, by reason of their background, professional titles and recognized competence in the matter, are a guarantee of impartiality and correctness in the performance of their functions. Los integrantes del Tribunal serán nombrados por el Poder Ejecutivo for a period of four years, and may be reelected (...)\"*. [the bold is supplied]. Moreover, it was in the Código de Normas y Procedimientos Tributarios, created by Ley N° 4755 of May 3, 1971, where its legal nature was established, when canon 149 stated the following: *\"Jurisdiction and competence. Tax controversies must be decided by the Tribunal Fiscal Administrativo created by ley Nº 3063 of November 14, 1962, which henceforth shall be governed by the provisions contained in this Chapter. Said Tribunal is a body of full jurisdiction and independiente del Poder Ejecutivo en la materia de su competencia, whose rulings exhaust the administrative channel (...)\"* . [emphasis supplied]. Today, in the current version of the Código [CNPT], taking into account the reforms introduced by the Ley de Justicia Tributaria N° 7535 of August 1, 1995 and the Ley de Contingencia Fiscal N° 8343 of December 27, 2002, we find the same postulate in Article 158 of the CNPT, reaffirming for what interests us here, that: *\"(...)Dicho Tribunal será un órgano de plena jurisdicción e independiente en su organización, funcionamiento y competencia, del Poder Ejecutivo y sus fallos agotan la vía administrativa (...)\".* [emphasis supplied]. Meanwhile, Article 160 of the CNPT regulates the integration of the Tribunal and the requirements of its members, establishing: *\"El Tribunal Fiscal Administrativo está conformado por las salas especializadas que sean establecidas por parte del Poder Ejecutivo, las cuales estarán integradas por tres propietarios; among them the president shall be elected (...) El Poder Ejecutivo nombrará a list of lawyers, civil engineers, agronomists, certified public accountants or other professionals who meet the same requirements as the permanent members, to supply for these in cases of temporary absences, impediments or excuses, in accordance with the procedures regulated in the aforementioned Regulation. Likewise, the Tribunal will have a president who shall be appointed among the presidents of each chamber and by themselves, y el personal administrativo necesario para su buen funcionamiento, nombrados por aquel de acuerdo con las regulaciones del Estatuto de Servicio Civil\".* [the highlighting is original]. Additionally, ordinal 161 of the cited Código establishes that: *\"El Poder Ejecutivo deberá designar, individualmente, a los propietarios y a los suplentes del Tribunal Fiscal Administrativo, previo concurso de antecedentes, which must be carried out formally, with the intervention of the authorities established by the Estatuto de Servicio Civil. Las formalidades y las disposiciones sustantivas fijadas en ese ordenamiento se observarán igualmente para la remoción de los miembros de este Tribunal (...)\"*. [emphasis supplied].\n\nPrecisely, Article 162 of the same legal text regulates the grounds for removal, such as the inefficient performance of their duties, misconduct in the performance of their positions, or repeated negligence that delays the processing of cases, among others, this being a power of the Executive Branch. Furthermore, it is important to highlight Article 163 of the CNPT, which regulates the actions of the Administrative Tax Tribunal, stating that: \"(...) must adjust its actions to the procedure and operating rules established in this Code, as well as in the General Public Administration Law (Ley General de Administración Pública), the Contentious-Administrative Procedure Code (Código Procesal Contencioso-Administrativo)(*) and the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), as applicable on a supplementary basis (...)\". (*) (according to the amendment made by Law No. 8508 of April 28, 2006, Contentious-Administrative Procedure Code). Finally, Article 164 of the CNPT regulates the grounds for disqualification, recusal, and prohibitions for Tribunal members to hear cases. For its part, in the so-called Regulation on the Organization, Functions and Procedures of the Administrative Tax Tribunal (Reglamento de Organización, Funciones y Procedimientos del Tribunal Fiscal Administrativo), Executive Decree No. 32249-H of 10/22/2004, published in La Gaceta No. 48 of March 9, 2005 -applicable to the case as it was the one in force at the time of the facts under consideration here, despite its amendment by Executive Decree No. 39697 of March 31, 2016-, the matters related to the composition of the members of the Administrative Tax Tribunal were regulated, with Article 9 stating that: \" The Executive Branch shall individually designate the permanent members of the Administrative Tax Tribunal, following a competitive merit-based selection process (concurso de antecedentes), which must be formally carried out with the intervention of the authorities established by the Civil Service Statute (Estatuto de Servicio Civil) and whose specialty shall be previously recommended by the President of the Administrative Tax Tribunal. Whenever a permanent vacancy occurs, for any reason, or a new Chamber is formed, at the reasoned request of the President of the Administrative Tax Tribunal, the Minister of Finance shall request the General Directorate of Civil Service (Dirección General de Servicio Civil) to open the vacant position for a competitive merit-based selection process (concurso de antecedentes), for which it must publish the corresponding notices, indicating the requirements established for that purpose by the Law governing the matter and other legal and regulatory procedures required for that purpose to apply for the selection process. The formalities and substantive provisions established in that regulation shall be equally observed for the removal of the members of this Tribunal. [emphasis added]. Likewise, in article 14 of the applicable Regulation -currently article 13 -, the provisions regarding the appointment of the President of the Administrative Tax Tribunal are established, where we find a provision similar to that contained in Law No. 4755, as we saw above, stating: \"As it is a body of full jurisdiction and independent in its organization, functioning, and competence from the Executive Branch, the Presidents of each of the duly formed Chambers shall designate the President of the Administrative Tax Tribunal (...)\". For its part, in the former article 15 -currently article 14- the powers and competence of the President of the Administrative Tax Tribunal are regulated, with the following being relevant for our purposes: \"(...) a) Resolve everything related to the efficient performance of this Collegiate Body. For this purpose, it may issue the corresponding directives regarding organization, functioning, and everything related to the establishment of the disciplinary regime applicable to all officials of this Tribunal, in accordance with the Civil Service Statute, General Public Administration Law and other legal and regulatory provisions that are of supplementary application by provision of articles 155 and 163 of the Code of Tax Norms and Procedures (Código de Normas y Procedimientos Tributarios) (...)\". [emphasis not in the norm]. Similarly, regarding the dismissal of its members, article 17 -currently 16 - indicated: \"The Executive Branch shall dismiss the members of the Tribunal , after verification of one or more of the following grounds for removal: a) Inefficient performance of their duties (...) f) Any other serious fault in the performance of their positions referred to in the Civil Service Statute, its Regulation, the Autonomous Service Regulation of the Ministry of Finance (Reglamento Autónomo de Servicios del Ministerio de Hacienda) and article 81 et seq. of the Labor Code (Código de Trabajo) (...) The verification of the grounds mentioned in this article shall be carried out through an ordinary administrative procedure established by the General Public Administration Law, ordered for this purpose by the Executive Branch, in which the fundamental guarantee of due process and all its constituent principles, especially the right of defense, shall be respected (...)\". [emphasis supplied]. From the harmonious combination of the provisions just transcribed, this Tribunal clearly infers, contrary to what was argued by Mr. Nombre81321, that all members of the Administrative Tax Tribunal - permanent and substitute- are not only appointed by the Executive Branch, following a competitive merit-based selection process and the rules of the Civil Service Statute, but can also be removed by said Branch of the Republic, when there is merit to do so. To argue otherwise would be to shelter impunity, which this Chamber is not willing to condone. Therefore, it is clear that the dismissal regime contemplated in Chapter IX of the Civil Service Statute is applicable to any member of the said Tribunal, whose Article 43 states: \"Public servants may only be removed from their positions if they incur in the grounds determined by article 81 of the Labor Code and article 41, subsection d), of this law, or in acts that imply a serious infraction of this Statute, its regulations, or the respective Internal Labor Regulations (...)\". For its part, article 51 of said normative body states: \"Cases not provided for in this law, in its regulations or in its supplementary or related laws, shall be resolved in accordance with the Labor Code, the Social Security Law (Ley de Seguro Social), the general principles of Civil Service, the principles and laws of common law, equity, local custom and practice (...)\". [bold added]. Having explained the foregoing, the plaintiff seems to confuse the independence in office regulated by the legal system, concerning the organization, functioning, and competence of the Administrative Tax Tribunal with respect to the Executive Branch in its area of competence, that is, regarding the resolution of tax cases submitted for its consideration, and the administrative and disciplinary controls -not hierarchical - that can and must be exercised over deconcentrated bodies. In this regard, our Constitutional Chamber (Sala Constitucional) has stated, for example in its ruling number 6866-2005 at 14:37 hours on June 1, 2005, that: \"(...)In contrast to proper hierarchy, there is the so-called non-hierarchical control or improper hierarchy, so named because, in cases where it applies, the entity that hears and resolves on appeal is not the hierarchical superior but the instance expressly indicated by law, which constitutes a legal and not a natural hierarchy. This non-hierarchical control can be an administrative body that, generally, in our administrative legal system, takes the form of a maximally deconcentrated body -monophasic improper hierarchy-, thereby guaranteeing independence and impartiality by distorting -or practically eliminating- the hierarchical relationship and the exercise of an exclusive review competence (e.g., the Administrative Tax Tribunal with respect to the resolutions of the Tax Administration, articles 156, 157, 158 of the Code of Tax Norms and Procedures (...)\\\". This preamble is understood by this Chamber of Judges as a logical consequence derived from the objectivity and impartiality with which all members of the Administrative Tax Tribunal must act, among them and especially its President, to prevent political criteria from influencing what is eventually resolved, thus achieving more coherent and reasonably accurate resolutions from a technical-legal point of view, as well as a greater degree of legal security, certainty, satisfaction, well-being, harmony, and social stability. However, this independence could never include matters related to the disciplinary regime of its members, on which the aforementioned law is also clear, providing that the formalities and substantive provisions established in the Civil Service Statute shall be equally observed for the removal of the Tribunal's members, a provision equally contained in the internal Regulation of said administrative body, by stating that everything related to the establishment of the disciplinary regime applicable to all officials of such Tribunal shall be governed in accordance with the Civil Service Statute, the General Public Administration Law, and other legal and regulatory provisions that are of supplementary application....\\\".
By virtue of which, there being no reason to change its position, this Second Section concludes, with certainty, as in that judgment, that the President of the Administrative Tax Tribunal -Mr. Nombre81321-, was indeed subject to the disciplinary regime regulated by the Civil Service Statute. That the type of disciplinary procedure followed against him did not violate due process and his right of defense, since, as already analyzed, Mr. Nombre81321 was indeed subject to the provisions of the Civil Service Statute, and therefore, it was under its regulations that he had to be investigated. Finally - as indicated in that judgment -, this Tribunal deems it appropriate to clarify to the plaintiff that the dismissal action requested by the President of the Republic jointly with the Minister of Finance, as well as its processing under the Civil Service Statute, are not contrary to law, precisely because, as stated in the preceding recital (considerando), we consider that the plaintiff was indeed subject to the disciplinary rules and procedures regulated in said normative body, with the Regulation mentioned by him -Decree 32249- being merely a complementary and inferior norm that cannot contravene the Law, besides the fact that as President of the Administrative Tax Tribunal, despite his autonomy and independence to resolve, he was subject to non-hierarchical control and to management and government policies, as such Tribunal is a deconcentrated body within the administrative structure. Without having the special jurisdiction (fuero especial) he claims. By reason of all the foregoing, the claims identified with numbers 1 and 3 must be rejected as inadmissible.
B) REGARDING THE OMISSION OF THE PRIOR CONSULTATION WITH THE LABOR RELATIONS BOARD OF THE MINISTRY. This defect is alleged based on articles 76 and 77 of the Autonomous Service Regulation of the Ministry of Finance. The argument in this regard - affirmation of \"fact\" number 14-, is rejected as inadmissible for the following basic reasons: Articles 76 and 77 of the Autonomous Service Regulation of the Ministry of Finance (Reglamento Autónomo de Servicios del Ministerio de Hacienda) -Executive Decree No. 25271 of 06/14/1996, only establish: \"Article 76.—A Labor Relations Board (Junta de Relaciones Laborales) shall operate in the Ministry, composed of three representatives of the Minister and three representatives of the union organizations that have affiliation in the Ministry, who shall have the obligation to represent every official, whether or not they are affiliated with one of the organizations. The union representatives shall be designated by agreement of the respective Boards of Directors.\" (...) \" Article 77.—The Board shall be of advisory nature and its purpose shall be the harmonious study of labor-related conflict situations, whether of an individual or collective nature, or of demands for social improvement for the benefit of the servants\\\". Therefore, those articles do not establish, much less expressly, as is argued, that it was the Administration that had to carry out - ex officio - the corresponding prior consultation with the Labor Relations Board. Ergo, it is not the respondents, as asserted, but Mr. Nombre81321, who should have timely requested, in the constitutive phase of the procedure, before the issuance of the final act, the intervention of the Labor Relations Board of the Ministry of Finance. Which he did not do. His omission is not a source of nullity for his own benefit. The foregoing is reinforced by what was subsequently provided in articles 5 and 19 of the Regulation on the Functioning and Organization of the Labor Relations Board (Reglamento de Funcionamiento y Organización de la Junta de Relaciones Laborales) (published in La Gaceta No. 225 of November 19, 2015), regarding its purpose, in the sense that the Board has the character of a permanent and advisory body. Its main objective is to maintain socio-labor peace, acting with absolute independence of judgment and balance of interests by those who comprise it, as well as the harmonious study of labor-related conflict situations in which its intervention is requested or of demands for social improvement for the benefit of workers. Likewise, in indicating that, in accordance with the provisions of articles 76 and 77 of the Autonomous Service Regulation of the Ministry of Finance, \"...the Board shall have the following functions: a. To hear in consultation from any of the parties or by complaint, made in writing before the Board, any act, action, or omission that may be considered an infraction of public employment and related laws, agreements, treaties, or aspects that may give rise to the alteration of harmonious relations between the parties. b. Without the need for prior action: on unsolved needs for equipment, materials, or services, as well as on occupational health, workplace safety and hygiene. c. To intervene, at the request of a party and issuing the respective recommendation , in disputes between officials, between them and the administration, heads of departments, directors, whether at an individual or collective level. Except in dismissals for serious misconduct or for Workplace Harassment, Sexual Harassment, or unfair labor practices. d. To promote the improvement of relations among the persons of the institution.\\\". (underlining supplied). Furthermore, it does not constitute a substantial formality of the procedure, the correct performance of which would have prevented or changed the final decision in important aspects, or whose omission caused omission (Article 223 of the LGAP), since according to the jurisprudential doctrine of the Constitutional Chamber, the recommendation of the Labor Relations Boards is not binding on the Administration. By reason of the foregoing - and without the need for further comments- the claims identified with numbers 1, 2, and 3 must be rejected as inadmissible.
C) REGARDING THE OMISSION TO RECEIVE THE STATEMENT OF THE EX-VICE-MINISTER OF REVENUE, MR. ESPINOZA HOWELL, WITHOUT ANY BASIS OR REASON, VIOLATING DUE PROCESS AND THE RIGHT OF DEFENSE.. The arguments - affirmations of \"facts\" 36 to 38-, are rejected as inadmissible and unfounded for the following basic reasons: It is true that the statement of Mr. Rowlan Espinoza Howell, ex Vice-Minister of Revenue, was timely offered as testimonial evidence. However, it is not true that it was not obtained, without any basis or reason. Nor, consequently, is it true that due process and the right of defense were violated. As recorded in the document dated March 19, 2015 -folios 230 to 236 of volume 1) of administrative file No. 16032- this witness was offered regarding the following facts: that he signed resolution RES-RP-64-2011, of October 19, 2011, that Mr. Nombre81321 also signed that resolution, that Mr. Nombre81321 was not requesting the relocation of his son, and that it was not carried out, as it was subsequently rendered without effect. Of no major significance, given the documentation of most of these \"facts\". In no way, regarding the issue of the statute of limitations. Furthermore, the Tribunal finds no document in which it was indicated, let alone repeatedly, that the summons of this former official should have been made by the General Directorate, on the basis that Mr. Nombre81321 lacked the capacity to do so. In any case, it was not a testimony for the prosecution by the Administration, but for the defense, of the investigated party, upon whom the duty of locating him and delivering the summons rested, by virtue of his burden of proof. Moreover, as recorded in folios 237 to 239 of that same volume of the administrative file, Mr. Nombre81321 was notified of the resolution setting the time and date for receiving Mr. Espinoza Howell's testimony. Furthermore, at folio 248 verso (248 A) of the file, it is recorded that the summons for the witnesses were delivered, including that of Mr. Espinoza Howell. It is a different matter, as recorded at folio 271 of volume 2 of the administrative file, that Mr. Nombre81321's representative informed the investigating authority that it had not been possible to summon said witness, as he was no longer a public official. Or, as recorded at folio 296 of that same administrative volume, that in view of the foregoing, Mr. Nombre81321's representative requested his substitution with Mr. Méndez Murillo, so that he could testify on the same facts. For which he requested a new scheduling. The fact is that Mr. Espinoza Howell did not appear. Hence, by an investigative order (auto de instrucción) of April 9, 2015, it was considered and ordered that he had already been summoned by a prior resolution; that he had not appeared at the indicated time and date; and because the record contains only one document sent by the respondent's representation alluding to the impossibility of summoning the witness and the non-appearance of the mentioned witness, said testimonial evidence is declared unproducible (inevacuable) (folio 97 volume 2 of the administrative file). Hence also, by an investigative order of April 9, 2015, it was ordered that it was not admissible to accept the incorporation of a new witness who was not added or requested at the proper procedural stage, i.e., untimely (folios 300 and 301 of volume 2 of the administrative file). Therefore, it is not true - and for that reason it is rejected - that his substitution request was not addressed. It is a different matter that it was rejected. Which was done, as was the declaration of unproducibility, in a reasoned manner. By reason of the foregoing - and without the need for further comments- the claims identified with numbers 2 and 3 must be rejected as inadmissible.
REGARDING THE STATUTE OF LIMITATIONS FOR THE DISCIPLINARY ACTION OF THE ALLEGED OFFENSES: Article 603 of the Labor Code, in force at the time, established: The rights and actions of employers to justifiably dismiss workers or to discipline their offenses shall prescribe in one month, which shall begin to run from when the cause for separation arose or, as applicable, from when the facts that gave rise to the disciplinary correction were known.\\\".\n\nIn accordance, Article 99 of the Regulations of the Civil Service Statute -Executive Decree #21 of 12/14/1954-, establishes: *\"The following shall prescribe in one month: a)... b)... and c) The actions of the Ministers to initiate the dismissal proceeding of regular employees for just cause and to impose the disciplinary corrections authorized by law and internal work regulations, from the day on which the cause for the sanction arose, or as the case may be, from when the corresponding facts or infractions became known.\" (supplied underlining). Therefore, there are two premises from which the start of the time limit for the competent authority to process the proceeding arises: From when the facts or infractions occur, or, from when they are brought to the knowledge of the competent body by virtue of holding the sanctioning power. And that said body is in an effective position to act, that is, in the case of the statutory regime, to instigate the dismissal proceeding before the Dirección General de Servicio Civil. The **first infraction charged** was for the resolution of the transfer -reassignment- of Mr. Adrian Rodríguez Arnejo, to the T.F.A. authorized and signed by his father, Don Nombre81321, as President of the T.F.A. And **the second** for intervening before the DGSC seeking that extraordinary examinations be administered to two people, one of them his son, in order to integrate the eligible list for membership of said tribunal. Acts that were denounced before the Vice Minister of Revenue, Rodríguez Garro, and that as a result of that, after prior investigation to compile the file, the Executive Branch proceeded with the dismissal proceeding. Indeed, according to the proven facts and antecedents, numbers 3 and 4, we have that between **November 27, 2014,** the date on which the Vice Minister of Revenue received from the anonymous complainants the copy of the official letters TFA-PRES 026-2012, TFA-PRES-053-2013, TFA-PRES-100-2013, and an indication of the file where resolution RP-064-2011 was located -, and **December 18, 2014**, the date on which Don Nombre81321 was notified of resolution No. AJD-RES-487-2014, from the Dirección General de Servicio Civil, in which the procedure was deemed initiated and the charges were brought against him, the period of the alleged statute of limitations (prescripción) did not elapse. Furthermore, in accordance with the **Regulations to the Law Against Corruption and Illicit Enrichment in Public Office-** Executive Decree #32333 of 04/12/2005-, specifically, its Article 11, on *\"Filing of complaints\"*, which in relevant part establishes that (...) *The competent body shall examine, within a reasonable period, the admissibility of the complaint, issuing the respective act, (...) rejecting it or admitting it. The complaints filed must be registered in such a way that the citizen and the Administration can identify them and follow up on them easily and opportunely. (Thus amended by Article 1, subsection b), of Executive Decree N° 34409 of February 27, 2008)*; and its Article 13, on *\"Anonymous complaints\"*, which establishes that: *\"No proceeding shall be given to complaints that are filed anonymously. In exceptional cases, a preliminary investigation may be opened ex officio, when evidence is received with it that provides merit for doing so. Otherwise, the respective authority shall order its archiving without further procedure\"*, in the present case, for the same reason, a preliminary investigation was necessary, consisting, at least, of locating and certifying the evidence received, mentioned, and related, for the purposes of the merit examination; and therefore, to support the request for the opening of the administrative procedure, as was done, within a reasonable period, by the competent body, in this case, by the Executive Branch (President of the Republic and Minister of Finance). Therefore, from the complaint received in the Office of Vice Minister Rodríguez Garro and the compilation of the respective file and the date on which the heads with the competence to process the dismissal had **qualified or sufficient** knowledge, the alleged statute of limitations did not expire. Therefore, the Tribunal de Servicio Civil resolved -basically- and the Tribunal Administrativo del Servicio Civil confirmed. What is confirmed, now, by this Second Section of the Tribunal. **The arguments against it, -statements of facts 18) to 35)-, to which we refer, are rejected, as inadmissible, for the following reasons:** The assertion that *\"the State\"* had knowledge, notice, and information of the specific acts classified as infractions since October 2011, is rejected, as generic, since \"The State\" is not a natural person, but a legal one, therefore it does not have knowledge, as such, but through its organs. Particularly through its competent organs. In this case, and as stated, by the Executive Branch (President of the Republic and Minister of the branch). In the same sense, the supposed knowledge of the infractions in the *\"high spheres of the State\"*6 is rejected. The assertion that the \"Ministry of Finance\" had knowledge, notice, and information of the specific acts classified as infractions since October 2011, is also rejected, as generic, since it is also not a natural person, but a constitutional organ. Composed of the Minister, a natural person designated as such. Moreover, it is not enough to have notice and information, but rather knowledge. But not just any knowledge, but sufficient and qualified knowledge, for the merit examination. For which - we maintain -, the complaint alone is not enough, even less if it is anonymous, but the receipt, along with it, of probative elements, of merit, for its admission or rejection; so that the competent body, in this case, the Executive Branch (President of the Republic and the Minister of Finance), is in an effective possibility to instigate the dismissal proceeding before the Dirección General de Servicio Civil. The assertion that the Vice Minister of Revenue, Fernando Rodríguez Garro, had knowledge, notice, and information of the specific acts classified as infractions since October 2011, is rejected, as inadmissible, as unfounded, since it is not credited or demonstrated that said gentleman had been appointed as Vice Minister of Revenue in October 2011. Therefore, the Tribunal does not understand how he could have known since then. Even less so, regarding resolution RES-RP-63-2011 of October 19, 2011, for the permanent reassignment of position No. 013358, from the Internal Revenue Administration- Internal Revenue Management program Budget Code 206-134-02-01-0001 to the Tax and Customs Tribunals Program- T.F.S. 206-135-01-01-01-0001, effective October 20, 2011, a position held by the son of Don Nombre81321. That resolution was not authorized or signed by the subsequent Vice Minister of Revenue, Mr. Rodríguez Garro. By virtue of which the assertion that said Mr. Vice Minister of Revenue *must* have had record of that resolution, just because it was provided along with the Dismissal Proceeding, is rejected as unfounded. In any case, the authorization and signature of the transfer for the reassignment of his son was but only one of the bases of the two infractions charged. It is acceptable that that resolution was signed by the then Vice Minister of Revenue, Rowland Espinoza Howell, that same day, October 19, 2011. However, it cannot be omitted that it was authorized and signed, also and beforehand, by Don Nombre81321, as administrator of the Program, as President of the T.F.A. And by his son, as a sign of consent. Nor can it be omitted that it was authorized and signed by Don Nombre81321, despite knowing that the official they were going to permanently reassign was his son. Furthermore, nowhere in the file -judicial or administrative- does it record that Don Nombre81321 had informed the Vice Minister of Revenue of this beforehand. This incorrect action in the performance of his position as President of the T.F.A. being what is reproached to him. Be that as it may, it is neither understandable nor justifiable that an employee with the investiture of Don Nombre81321, and given his status as a Law Graduate, with years of expertise in legal matters, and above all, with years of service in the Public Administration, ignored the legal impediment of his son becoming part of the T.F.A., as provided in subsection b) of Article 9 of the Regulations of the Civil Service Statute, even more so that apart from the prohibition established in the regulations, the kinship relationship was evidently of Don Nombre81321's knowledge, despite which, he assented to the procedure in question by authorizing and signing the reassignment resolution. It was not until later that it was rendered ineffective, through resolution RES-RP-68-2011. But not at the initiative of Don Nombre81321 but due to the warning of the Deputy Director of Taxation, after being informed - not by Don Nombre81321, but by the Legal Advisory Office - of the impediment due to the kinship relationship. Hence, and despite the reassignment having been rendered ineffective, Don Nombre81321's conduct constituted an action that was not only irregular given his position as President of the T.F.A., but also contrary to the fundamental principles and pillars that inspire and regulate his service relationship with the Administration, which is highly reprehensible. So considered, in essence, the Tribunal de Servicio Civil, and this Section of the Tribunal endorses. Furthermore, as we pointed out, that resolution was not issued by the \"Ministry of Finance\", but by the heads of the two corresponding budgetary administrative programs. Which is different. That is: it was authorized and signed by the then Vice Minister of Revenue; but also, by the then President of the T.F.A. Which implies assent - and prior agreement - from both administrative heads. So, while it is not an act emanating exclusively from the T.F.A. and/or from Don Nombre81321's desk, neither is it a resolution carried out, properly, by the Ministry. In this sense, it is rejected that it was the Office of the Minister or Vice Minister who made the reassignment. And, therefore, that it was the Office of the Minister or Vice Minister who rendered it ineffective days later. On the other hand, the request made by the Deputy Director of Taxation by official letter SGT-109-2011 was only for the preparation of that transfer resolution. Which is different (folio 26 of the administrative file). Based on the foregoing, the assertion that it was the Vice Minister himself, in the person of Fernando Rodríguez Garro, who, three years later, without investigating the events that occurred and the existing documents and resolutions, ignores the content and scope of resolutions RES-RP-64-2011 and RES-RP-68-2011, to deem one of the two grounds for dismissal constituted, is rejected as unfounded. Indeed, it was not that ministerial organ, properly - whatever the natural person occupying it -, but the Executive Branch (the organ Ministry of Finance jointly with the organ Presidency of the Republic), after prior investigation - location, certification, and qualified knowledge - of the content and scope of the evidentiary elements, among them, resolution RES-RP-64-2011, who finally processed, as the competent body, his dismissal, based on said action; in addition to other acts, the basis of the second charge. By reason of which, the statement by the witness, Licda. Rocío Espinoza Navarro, in the administrative procedure, is rejected, as useless, as inconsequential, to the effect that, to the question: *\"When do the heads of the Ministry of Finance find out that Don Nombre81321 signed that resolution?\"* said witness replied: \" *I do not know the exact moment they find out but I can state that the Vice Minister of Revenue of that time signs the resolution after Don Nombre81321 therefore finds out at that moment.*\". It is acceptable that prior to its signature - by the heads of the respective administrative revenue programs -, already on the reverse of resolution RES-RP-64-2011, of October 19, 2011, it appeared to have been prepared by a legal advisor, with the approval of the Coordinator of the Legal Advisory Office, the Deputy Administrative Financial Director, and the Director of Human Resources. As well as its subsequent receipt in this Department, on October 21, 2011. However, Don Nombre81321 does not demonstrate - nor does the Tribunal understand - in what sense he claims that all of them are \" *employer representatives* \", being that they are auxiliary subordinate personnel - in functions of mere technical legal and administrative procedure - who do not express - nor commit, for the same reason, the final legal will of the Administration. By virtue of which the statute of limitations argument is rejected, on the basis that they had knowledge of the facts - in this case of that resolution - since October 2011 and therefore 3 years elapsed until they filed the \"dismissal proceeding\". It is true that that resolution was rendered ineffective by Resolution RES-RP-68-2011, of November 8, 2011. Now, this second resolution was not signed solely by the then Vice Minister of Finance Revenue, Mr. Espinoza Howell, but also by Don Nombre81321, as President of the T.F.A., as administrative head of the Tribunal's budgetary program. Be that as it may, Don Nombre81321 does not explain - nor does the Tribunal understand - what relationship it has with the statute of limitations argument. In any case, we reiterate, it was not the Ministry of Finance, the proponent of the administrative dismissal procedure, that signed resolutions RES-RP-64-2011 and RES-RP-68-201. Furthermore, it is true that there is an anonymous complaint, from a citizen, dated January 9, 2013 - a 4-page document -, addressed to the Ethics Prosecutor, the Contraloría General de La República, the Dirección General de Servicio Civil, and the Human Potential Management Directorate of the Ministry of Finance, with a copy for the internal audit of the Ministry, and the Political Control Commission of the Asamblea Legislativa. And it has a receipt stamp, dated January 16, 2013, from the Human Potential Management Office of the Ministry of Finance (folios 90-93 of the administrative file, Volume 1). However, the derivation, that the same facts had already been brought to the knowledge of the \"employer\", based on that document, is rejected as inadmissible, as biased. That document cannot be interpreted in a biased or incomplete manner. In that document it is expressly stated that the complaint is regarding the appointment resolution **No. PRES-001-2012 - the only one of which a copy was attached -**, where Lic. Gerardo Danilo Soto Gamboa is designated as procedural attorney of the Presidency of the T.F.A. An act regarding which a detailed account of its alleged irregularities is made and Article 54 of Law 8422, on Influence Peddling, that would be infringed, is transcribed. That act being, in particular, the one regarding which almost three pages of arguments are dedicated and used, concerning its accused irregularity. It was not until after the foregoing that the document tangentially states: *\"... It is worth mentioning that this situation of irregular appointments is nothing new in the Tribunal (sic), since in the year 2011, as can be corroborated in the respective personnel files, Mr. Rodríguez had already attempted to commit another similar illicit act, when he proceeded to appoint his son, Mr. Adrián Rodríguez Arnesto, as an employee of the Tribunal Fiscal, who is currently an employee of the Directorate of Large National Taxpayers, which if said appointment had been formalized would have resulted in a direct hierarchical relationship between father and son, although to date it has not improved much because Mr. Rodríguez Arnesto is also a resolving attorney for the cases that the Tax Administration refers to the Tribunal. All this act of corruption to date remains unpunished because the respective resolutions were simply annulled, without establishing greater responsibility on those who had made this corrupt decision...\" (...) \"... The objective of this complaint is that the competent authorities carry out the legally applicable investigations to determine the illicit nature of the acts described herein, and to establish the disciplinary and judicial responsibilities that correspond against the officials allegedly implicated, this with the aim of maintaining a correct performance of duties in the exercise of public function (...) and prevent acts of corruption that lead to appointments to government positions in an arbitrary manner, without respecting the respective eligible lists, in addition to avoiding any economic damage that this may represent against the Public Treasury and the credibility of the officials who have the privilege of exercising public function.\"*. In any case, in that anonymous complaint, the number, date, or exact details of the appointment of Mr. Adrián Rodríguez Arnesto as an employee of the Tribunal Fiscal are not specified, besides the fact that the evidentiary element related to it is also not provided, unlike the other specifically and concretely denounced act, which is the appointment designating Lic. Gerardo Danilo Soto Gamboa as procedural attorney of the Presidency of the T.F.A., with respect to which the number and year of the resolution are precisely indicated and the evidentiary element is attached.\n\nConsequently, it was only with respect to this single legal act that this anonymous complaint could legally be — and was — processed. This is corroborated by official letter DGPH-AO-019-2013 of January 25, 2013 — which Mr. Nombre81321 invokes — in which the Acting Director of Human Resources of the Ministry responds to — and informs — Minister Ayales Esna of aspects he had consulted regarding the aforementioned anonymous complaint, with respect to the issuance of Resolution No. PRES-001-2012 dated October 30, 2012, signed by Mr. Nombre81321 in his capacity as President of the Administrative Tax Tribunal (Tribunal Fiscal Administrativo), by which it was resolved to designate Mr. Gerardo Danilo Soto Gamboa as Processing Attorney (Abogado Tramitador) of the Presidency of the T.F.A. For this reason, it is rejected, as useless and irrelevant, whether or not the Ministry had a copy of that anonymous document, as well as the statement made, where relevant, in the administrative venue, by the interested party himself, that is, by the witness, Lic. Gerardo Danilo Soto Gamboa, to the effect that he had learned of the same \"... because in an anonymous document also submitted to Human Resources that was elevated to the Minister's office and the Executive Branch (sic), which caused an ordinary procedure to be initiated, to annul administrative acts of functioning and organization issued by the Presidency of the Tribunal, and I should note that it had a favorable pronouncement from the Attorney General's Office in my favor, mention had already been made of these facts and others. (...) It was at the beginning of the year 2013, I spent all of 2013 in an administrative procedure (...) I do specify that it spoke of illegal appointments of myself and of Adrián Rodríguez, he was appointed thus it was illegal, appointments in the Tax Tribunal.\" We insist, from the content of Official Letter DGPH-AO-019-2013 of January 25, 2013, it is evident, contrary to what Mr. Nombre81321 indicated, that it was only regarding that appointment of the witness himself, Lic. Soto Gamboa, that the aforementioned complaint was brought to the Ministry's attention at that time. Be that as it may, its content shows that it concerns facts — and qualifications — different from those investigated and sanctioned in the dismissal proceeding — file 16032.\n\nRegarding the second offense, according to proven fact No. 2, we have that: These are not hypothetical official letters sent to the Dirección General de Servicio Civil for the administration of suitability exams. Nor mere recommendations. It is true that they are official letters from 2012 and 2013 (T.F.A.-PRES-026-2012, dated June 19, 2012, T.F.A.-PRES-053-2012, dated May 29, 2013, T.F.A.-PRES-054-2012, dated May 29, 2013, and TFA-PRES-100-2013, dated November 14, 2013). The assertion that the only one of the letters included in the \"dismissal\" petition bearing his signature is TFA-PRES-100-2013 of November 14, 2013, is rejected as improper and unfounded, since: Official Letter T.F.A.-PRES-026-2012, dated June 19, 2012, bears the original signed seal of the President of the Tribunal, the seal of the Tax Tribunal, and the receipt seal of Recruitment and Selection dated June 21, 2012. Official Letter T.F.A.-PRES-053-2012, dated May 29, 2013, bears the signature of the President of the Tribunal and the seal of the Tax Tribunal, and the receipt seal of the Dirección General -DGSC- on May 29, 2013). And Official Letter T.F.A.-PRES-054-2012, dated May 29, 2013, bears the original signed seal of the President of the Tribunal, the seal of the Tax Tribunal, and the receipt seal of the Dirección General DGSC, on May 29, 2013. Besides, they have not been argued as false nor declared false. Consequently, the argument that they could not be taken into account with probative value is rejected. Much less so, for being ineffective and lacking validity. It being useless, as irrelevant, for the reasons stated, whether Lic. Adrián Rodríguez Arnesto is included or not in the exam request of the last Official Letter TFA-PRES-100-2013, dated November 14, 2013.\n\nThere is no doubt of the impropriety of Mr. Nombre81321 directly managing the application of extraordinary exams for his son Adrián so that he could form part of the eligible candidate registry (registro de elegibles) for Members of the Administrative Tax Tribunal, taking into account that at that date his son was not his subordinate, as he was working in another budgetary program (programa presupuestario), namely in the Dirección General de Tributación Directa, in the Large Taxpayers office, which was accredited at the documentary level. In any case, Mr. Nombre81321 had no reason to make these types of requests that tarnish the institutional image, given that if there was a need to complete the list of eligible candidates for T.F.A. Members or there was not an adequate registry of suitable persons to opt for a possible position as a Member of that Tribunal — which is not deduced from the evidence provided — the truth is that what Mr. Nombre81321 should have processed, in coordination with the Dirección General de Servicio Civil and the Ministerio de Hacienda, was an open competition (concurso) so that all interested parties who met the required qualifications could appear in said process, and not make a request for extraordinary exams for the persons expressly indicated and defined by Mr. Nombre81321; particularly for his son. If the aforementioned officials had an interest in participating or entering the eligible candidate registry, on their own they should have, like any citizen, public servant or not, gone through the corresponding established channels, that is, the Dirección General de Servicio Civil, and made the respective request or inquiry, or entered said Office's web page to stay informed of current competitions. Mr. Nombre81321, for his part, should have abstained from that type of practice that has been so harmful and damaging in public management and totally contrary to the system of merits and competitions under equal conditions that the Civil Service Statute (Régimen Estatutario) safeguards and protects. Furthermore, if — as he himself indicates — while he was a Member of the T.F.A., his son, even if he passed the respective exams, could not be considered to be a member of that Tribunal, then even less justified is Mr. Nombre81321's intervention and insistence before the Dirección General de Servicio Civil for said extraordinary exams to be administered to his referrals, among them his son. Such conduct evidences and manifests a greater personal interest, alien to the public purpose that the Administration must protect, for on what grounds, and with what impartiality could one person be placed ahead of or prioritized over others, what parameter of suitability could justify this type of request, without incurring inequality, to sustain this type of management as transparent, which was moreover unnecessary, given that any interested party on their own could manage to apply for the respective competitions. This is how the Tribunal de Servicio Civil essentially considered it, and this Section of the Tribunal endorses it.\n\nAs for the grounds (causales) attributed to him not being among the exhaustive grounds for removal (remoción), a removal that is for non-reelection, of the Tax Code (Código Tributario), nor in any criminal figure, of those typified in the Law against Corruption (Ley contra la Corrupción), this is not a simple cause for removal; Mr. Nombre81321 forgets that he is a public servant and performs in a service relationship where the State as his employer must ensure that the actions of its subordinates conform at all times to legal and regulatory norms. Ergo, it is not a simple cause for removal, but a serious offense (falta grave), constituting grounds for dismissal without employer liability, subsumable under the duty of probity (deber de probidad) — not a crime — of article 3 of that same Law, by virtue of what has been stated.\n\nIt is acceptable that the Dirección General de Servicio Civil has \"governing\" functions over the Human Resources of the Executive Branch, among others. However, the derivation that for that reason, it is the employer representative for the purposes of applying the prescriptions alleged in this litigation is rejected as improper and unfounded. The thesis presented contradicts doctrine and jurisprudence. For which we refer, to avoid unnecessary repetitions, to the previous considerations regarding the Executive Branch, as the competent body to initiate the dismissal proceeding, for holding, precisely, the sanctioning power. Consequently, the allegation of statute of limitations (prescripción), founded on the fact that from the date these other facts occurred and were made known to the Dirección de Servicio Civil, until the moment of initiating the \"dismissal\" proceeding, more than one year elapsed, is rejected. For the reasons stated, subsidiary claim number 3, regarding the statute of limitations on the disciplinary action, is rejected.\n\nREMAINING ARGUMENTS: Finally, he alleges: A) Disproportionality between the acts on which the dismissal request is based and the sanction applied: Due to the importance — economic and legal — of the function performed by Mr. Nombre81321, as President of the T.F.A., his international recognition, his life of honesty and excellence in his management; his career; And, because the acts were not executed with fault or intent, were never consummated and do not constitute a crime or nepotism; B) Crimes against probity: For having been charged with the commission of the crimes typified in articles 45 to 62 of chapter V of the Law against Corruption and Illicit Enrichment in Public Office (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), without any of the acts on which the dismissal is based fitting the legal type, nor conforming to the exhaustive list of causes for which removal, due to non-reelection, can proceed, in accordance with article 162 of the Tax Code; C) Requested transfers (reubicaciones): For having responded to a government need, due to a lack of personnel in the TFA, not by Mr. Nombre81321, unilaterally or capriciously, availing himself of his position, but at the request of the Deputy Minister of Revenue (Viceministro de Ingresos), including that of his son, whose eventual (not executed) transfer was proposed — processed and authorized — by signature and countersignature of several department heads, by other units; and finally D) Request for suitability exams, so that, in case of approval, they could integrate the eligible candidate list, form a shortlist (terna) of substitutes, and eventually replace the Judges, which — he argues — would have been possible for his son, only once his father retired, due to their kinship relationship, so it did not constitute nepotism or influence peddling (tráfico de influencias), due to his son's virtues; because Mr. Nombre81321 did not avail himself of his position to place him in a position of preference; because it is the Executive Branch who appoints; and, because he was never examined, so there was no harm to the Administration.\n\nIn relation to the foregoing, this Section of the Tribunal determines its impropriety, and therefore its rejection, for the following basic reasons: Dismissal without employer liability is proportional due to the greater weight and seriousness acquired by the offenses charged and accredited in light, precisely, of the greater responsibility that by principle is demanded of Mr. Nombre81321, as an official, due to the importance — economic and legal — of his function, his high position as President of the T.F.A., and his long career. It was not the Administration but Mr. Nombre81321, with his acts, who came to affect — as he claims — his international recognition, and his life of honesty and excellence in his management. Besides, if it is properly viewed, Mr. Nombre81321 was not charged with the acts having been executed and consummated, nor with them constituting a crime or nepotism. Nor was he charged with intent, but rather administrative fault, for violation of the duty of probity. We reiterate, Mr. Nombre81321 was not charged with the commission of the crimes typified in articles 45 to 62 of chapter V of the Law against Corruption and Illicit Enrichment in Public Office, for which reason it is useless and irrelevant whether the facts or offenses, on which the dismissal is based, fit or not the legal type. He was also not charged with the commission of the causes for removal of article 162 of the Tax Code, for which removal, due to non-reelection, can proceed.\n\nAs we pointed out, Mr. Nombre81321, as well as all the members of the T.F.A. — permanent and substitute — are not only appointed by the Executive Branch, following a background competition and the rules of the Civil Service Statute, since they can also be removed by said Power of the Republic, when there is merit for it. To hold the contrary would be to shelter impunity, which this Tribunal is not prepared to condone. Due to the foregoing, it is clear that the dismissal regime contemplated in Chapter IX of the Civil Service Statute is applicable to any member of said Tribunal, whose article 43 states: \"Public servants may only be removed from their positions if they incur in the causes determined by article 81 of the Labor Code (Código de Trabajo) and 41, subsection d), of this law, or in acts that imply a serious infraction of this Statute, its regulations, or the respective Internal Labor Regulations (...)\". For its part, ordinal 51 of said normative body states: \"Cases not foreseen in this law, in its regulations or in its supplementary or related laws, shall be resolved in accordance with the Labor Code, the Social Security Law (Ley de Seguro Social), the general principles of Civil Service, the principles and laws of common law, equity, local custom and practice (...)\". [the boldface is ours].\n\nHaving explained the foregoing, the plaintiff seems to confuse the independence in the position that the legal system regulates, regarding the organization, functioning and competence of the Administrative Tax Tribunal with respect to the Executive Branch in the matter of its competence, that is, with respect to the resolution of tax cases brought before it for consideration, and the administrative and disciplinary controls — not hierarchical — that can and must be exercised over deconcentrated organs. (...) but this independence could never include matters relating to the disciplinary regime of its members, upon which the aforementioned law is also clear, by providing that the formalities and substantive provisions established in the Civil Service Statute shall be observed equally for the removal of the members of the Tribunal, a provision equally contained in the internal Regulation (Reglamento interno) of said administrative body, indicating that everything related to the establishment of the disciplinary regime applicable to all officials of such Tribunal shall be governed in accordance with the Civil Service Statute, the General Law of Public Administration (Ley General de la Administración Pública) and other legal and regulatory provisions that are of supplementary application....\".\n\nNor is it relevant whether the transfer of his son was or was not at the request of the Deputy Minister of Revenue, whether or not it was for a government need, nor whether or not it was carried out by Mr. Nombre81321 unilaterally or capriciously, asserting his position, that is, through influence peddling, but rather for the breach of the duty of probity. Without it being an obstacle, for the reasons already stated, whether or not it was proposed by other units, nor whether on the reverse of resolution RES-RP-64-2011, of October 19, 2011, it appears that it was prepared by a legal advisor, with the approval of the Coordinator of the Legal Advisory Office (Asesoría Legal), the Deputy Administrative Financial Director, and the Director of Human Resources, being that these are auxiliary subordinate personnel — in functions of mere technical, legal and administrative processing — who do not express — nor, for the same reason, compromise — the final legal will of the Administration. As was, in this case, the authorization and signature, among others, of Mr. Nombre81321, as President of the T.F.A. and, therefore, as head of the budgetary program involved.\n\nOn the other hand, as is admitted, approval of the exam by his son would have allowed him to enter the eligible candidate list, a shortlist, and his eventual appointment in the T.F.A. once his father retired. Finally, it is worth reiterating that Mr. Nombre81321 was not charged with nepotism, nor influence peddling, that is, a result, however — and regardless of the academic or professional qualities of his son — there is no doubt of the serious offense, of the action itself, that is, of the repeated particular, personal and direct interest shown by Mr. Nombre81321, before the Dirección General de Servicio Civil, aimed at having the extraordinary exam administered to him, as well as to another lawyer, close to him, which placed them — in this sense — in a position of preference, in itself, in breach of the duty of probity in the exercise of the powers and functions conferred as authority in hierarchical rank, which supposes — contrary to what occurred — the pursuit of the general interest, with objectivity, equality, impartiality, transparency, rectitude, loyalty, good faith and trust, for which he became deserving of the authorization of his dismissal, ordered by resolution number 12479 of the Tribunal de Servicio Civil, at 20:35 hrs., on June 5, 2015; confirmed by judgment number 001-2016-TASC at 11:30 hrs. on January 14, 2016, of the Tribunal de Servicio Civil, and, therefore, by the Executive Branch, for loss of objective trust.\n\nIX.- COROLLARY: In view of all of the foregoing, which leads to the dismissal, as the main claims – numbers 1, 2, 3, and 4, and 5 – are hereby denied, claims 5, 6, and 7 are likewise rejected, due to their accessory nature, seeking payment of all his labor rights suppressed by said dismissal, including salary increases for any reason, payment of Moral Damages – subjective –, and payment of both costs of the proceeding, as well as interest on the items granted and currency indexation thereon. Note: It should be reiterated that Mr. Nombre81321 waived his reinstatement and the payment of lost wages. Consequently, the claims seeking a declaration of nullity of the procedure, a declaration of the statute of limitations for the disciplinary action, a declaration of nullity of the dismissal and of the acts that ordered it, are dismissed; and, therefore, due to their accessory nature, the remaining indemnification claims of the complaint. By reason of which it must be declared inadmissible, in all its aspects. By reason of the above – which is considered sufficient –, the remaining assertions of the complaint are discarded, as useless and inconsequential. As a corollary of the foregoing, it is appropriate to dismiss the arguments presented by the representative of the plaintiff, as is hereby ordered.\n\n**X.- REGARDING THE EXCEPTIONS:** The State raised the exceptions of lack of passive and active standing to sue (falta de legitimación ad causam pasiva y activa), **lack of right (falta de derecho)**, and lack of current interest. **Fernando Rodríguez Garro** raised the exception of lack of current interest, lack of passive standing, and **lack of right**. The **Dirección General del Servicio Civil** raised the exception of **lack of right**. The **exception of lack of right, raised by all co-defendants**, must be upheld because the complaint found no support in the legal system. By reason of which, a ruling on the other exceptions raised by the co-defendants is omitted as unnecessary.-\n\n**XI.- REGARDING COSTS.** By express provision of Article 193 of the Código Procesal Contencioso Administrativo, it is appropriate to order the plaintiff to pay both costs of this action for the sole fact of having been the losing party in this proceeding, without any reasons given by the claimant or determined by this Court that would justify their exoneration pursuant to subsections a) and b) of the cited numeral 193. Therefore, both costs of the proceeding are imposed on the plaintiff.\n\n**POR TANTO**\n\nThe exception of lack of right is upheld. The complaint is declared inadmissible, in all its aspects. The plaintiff is ordered to pay both costs of the proceeding. Notifíquese.- /Ronaldo Hernández Hernández/Eduardo González Segura /Bernardo Rodríguez Villalobos.-" }