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PKJ43FTZVHNO61
Nombre89 - JUEZ/A DECISOR/A
*SV43VT7I1LHM61*
SV43VT7I1LHM61
Nombre126032 - JUEZ/A DECISOR/A
*IFPGLONENJC61*
IFPGLONENJC61
FRANCISCO DE LA TRINIDAD HIDALGO RUEDA - JUEZ/A DECISOR/A
A) On the nature of the fault attributed to the plaintiff.\n\nThe plaintiff began working for the MEP on **April 24, 2012** as an administrative assistant in the capacity of interim permanent employee **[*sic*]** ; it was demonstrated in disciplinary administrative procedure 629-2018 conducted by the MEP, that from **October 5 to October 16, 2018**, she left the country during the national strike of educators and other public officials, which began on September 10, 2018, without employer permission *(see proven facts 1 to 5)*; for this reason, in the aforementioned disciplinary procedure, she was charged with: **“[...] in your capacity as Administrative Assistant, of the [...] School, assigned to the Coto Regional Education Directorate, taking advantage of the National Strike movement that began on September 10, 2018, you left the country without justification for doing so, for a motive or reason unrelated to the strike, during the period from October 5 to October 16, 2018, according to the Certification issued by the Ministry of Governance and Police, General Directorate of Migration and Immigration, Migration Management, thereby breaching the duty of probity, good faith, loyalty, and trust that governs the employment relationship with this Ministry”** ; conduct which in resolution 476-2019 of fourteen hours and forty-four minutes of February thirteenth, two thousand nineteen, justified, according to the MEP's understanding, the termination of the plaintiff's employment relationship with the MEP without employer liability *(This factual set is not disputed and is recorded in proven facts 6 through 10)* set forth above in chronological and sequential order. Additionally, in resolution 476-2019, regarding the existence and nature of the misconduct, it was resolved: **“ON THE MERITS OF THE MATTER: In the present case, [Name 001], in her capacity as Administrative Assistant of the [...] School, is charged with the commission of alleged serious misconduct in the exercise of her functions. Analyzing the reported facts and based on the certification of migratory movements from the Registry of International Movements of Persons of the General Directorate of Migration and Immigration, the accused was charged with the aforementioned fact, which was notified on December 11, 2018 -folio 24- and finally responded to on the 21st of the same month and year -folios 25 to 24-. The legal representative of the accused requests, in the statement of defense, the material evidence upon which the administration has certified the accused’s conduct. At this point, and of interest to this resolution, the representative must be informed that the certification was issued by the competent authority on the matter, which is the Directorate of Migration and Immigration. It is necessary to bring up what is indicated by national legislation, in the Civil Procedural Code of the Republic, which regarding documentary evidence in its articles 369 and 370 states: (Article 45.2 in the new Civil Procedural Code) [...] Even more important is what is stated in the same legal body, in its article 353, which reads: [...] As a corollary, it is appropriate to cite here jurisprudence from the exalted Administrative Tribunal of the Civil Service, which in its resolution No. 032-2017 of May 26 of this year, regarding evidence, stated: ‘In order to complement the referenced norm, it is also appropriate to cite the following extract from Judicial jurisprudence, which, in application of the cited numeral 353, has upheld the prevalence of documentary evidence over testimonial evidence when the two are compared, as in the present case: [...] Thus, in relation to the aforementioned and of capital importance for the case before us, given the lack of evidence to the contrary, as it was not refuted in her defense or in the hearing held with the witness provided; it is effectively proven that the employee [Name 001] left the country in the midst of the strike movement that affected this ministry, using the situation arising from the paralysis of functions at the teaching level to execute actions unrelated to the very nature of the right to strike, which is what is intended by those who initially support it and which, in addition to being amply proven by the sworn statement of her immediate superior Grace Beita Alpízar on folios 51 and 52 of the file, it is reiterated, was not denied by the accused in her defense. In this line, her conduct is more than reprehensible, insofar as she ceases to provide the public service for which she was hired and receives the respective remuneration, in exchange for participating in the National Strike movement to which she is certainly entitled, but taking advantage of that situation, she leaves the country during the dates charged, performing activities completely unrelated to the exercise of the right to strike referred to. Situations such as those attributed to the cited official definitively tarnish the public function that we, as public servants, are called to perform, insofar as using it as a license or justification for vacationing —in this specific case— contravenes all logic of employment —public or private— and must not be overlooked, taking the necessary measures to safeguard the interests of the Administration as well as that of the most vulnerable population —the students. The teaching processes established in our educational system at its different levels must be executed under the most suitable conditions, which implies, among other things, that minors are receiving their lessons in a healthy and balanced environment. It is well known that, at the national level, the strike has generated an atmosphere of emotional and educational instability for all those who have not participated in it —teachers and students alike— which has come to affect the quality and development of the academic year within the national standards that are pre-established at the beginning of each year, thereby curtailing the learning and teaching process that goes hand in hand with the learning level in which the teachers are immersed —in direct relation to the educational level they are in. This atmosphere of tranquility and harmony must prevail in every educational institution, hence the reprehensibility of the accused's conduct, as the impact that affects the normal development of the aforementioned processes —teaching and learning— is assessed, which in turn constitutes a significant disruption in the adequate development of the study programs, with the consequent misalignment in the learning process for the students enrolled in the cited educational center. This impact also implies that their right to education, to which minors are constitutionally entitled, is violated, since the provision of this service would not be effective or constant and, in most cases, it is not possible to recover the loss of lessons nor the progress in the subject matter to be covered at each level of education, which will undoubtedly affect them at some point, whether now or in subsequent educational levels, since their foundations could be incomplete. Under this approach, Article 57 of the Civil Service Statute provides, among the obligations of educators, to exercise a direct and systematic action in the formation of the student's personality, aiming to enable them to live in accordance with the higher values of mankind and society; likewise, subsection 1) of that same article provides, as part of the teaching functions, to observe, inside and outside the school, conduct consistent with the principles of morality and good customs. Article 58 of the same normative body states, for its part, that educators are prohibited from exercising, promoting, or propitiating activities contrary to public order, as well as incurring in acts that discredit their profession or are contrary to public morality. On the other hand, the Teaching Career Regulations stipulate as serious misconduct the educator conducting themselves during their work in such a way that discredits their profession or whose acts conflict with public morality and good customs. Norms such as those indicated are based not only on the nature of the function held by educators and its importance as role models in the education of minors, but particularly on those commitments acquired by Costa Rica since the ratification of the Convention on the Rights of the Child and which were developed in the Childhood and Adolescence Code, where the best interests of minors are contemplated as an essential basis of their rights, it being understood, according to Article 5 of the CNA, that any public or private action concerning a person under eighteen years of age must consider their best interest, which guarantees respect for their rights in a physically and mentally healthy environment, in pursuit of full personal development; their condition as a subject of rights and responsibilities; their age, degree of maturity, capacity for discernment, and other personal conditions; the socioeconomic conditions in which they develop; and the correspondence between the individual interest and the social interest must be considered. In such a way, the best interest of the minor is understood as: ‘a hermeneutical guideline that must guide all the work of the Public Administration and radiates over those activities of private parties that are of public interest, such as those of schools’ (Sala Constitucional ruling number 11439-11). Indeed, this implies that the right of the minor, depending on the specific case, prevails over other rights, even if these are legitimate. It is therefore an integral legal quality that gives the minor's legal interest supremacy, predominance, or preponderance over the interests of others; that is, the ‘superiority’ of the Principle supposes the existence of an objective interest that is above the subjective interests of the other parties involved, whether they are state institutions, parents, or even the affected minors themselves.” (Sala Constitucional ruling number 12458-11). This best interest of the minor is materialized through various means, one of which is the various rights protected by our legal system, such as the right to education developed in Chapter V of the Childhood and Adolescence Code and backed at the constitutional level. These rights, as is clear, are of obligatory observance by citizens, particularly public servants who are constrained by Article 11 of the Political Constitution and Article 11 of the General Law of Public Administration to be governed under the principle of legality, but especially educators, who, in accordance with the norms detailed above, are compelled to safeguard the rights of minors, to protect their integrity, to be governed by norms adhering to morality and good customs, to avoid situations that result in an impact on public order, among others. Hence, putting one's own interests above those of a population such as children is reprehensible in cases such as the one before us, where their education was violated. On the other hand, regarding the strike, ruling No. 1998-01317 of ten hours twelve minutes of February twenty-seventh, nineteen ninety-eight, issued by the Sala Constitucional of the Supreme Court of Justice, prescribes: ‘ON THE RIGHT TO STRIKE.- To effectively guarantee the free union action, understood as the exercise and enjoyment of the right to organize, focused on developing and achieving the constitutional purposes embodied in Article 60, the constituent incorporated into Article 61 of the Constitution legal mechanisms that form part of the essential content of the right to organize, such as’ (...) the right of employers to lockout and of workers to strike, (...)’. These institutes constitute legitimate pressure measures or means of defending the interests of workers and employers that are outlined as the right to temporarily breach the employment contract, in accordance with current national legislation, with the purpose of preserving, affirming, and pursuing the interests enunciated by the Constitution itself and for which the State must provide the adequate legal and institutional channels. For its part, our Constitution states: ‘Article 60.- Both employers and workers may freely organize themselves, for the exclusive purpose of obtaining and preserving economic, social, or professional benefits. Foreigners are prohibited from exercising management or authority in unions. Article 61.- The right of employers to lockout and of workers to strike is recognized, except in public services, in accordance with the determination thereof by law and pursuant to the regulations it establishes, which must prohibit all acts of coercion or violence’. However, this is not an unrestricted right, as it has intrinsic limits, derived from the very nature of the right, and external limits, insofar as they cannot affect third parties. Under the logic of these intrinsic limits, the purpose for which the aforementioned right is exercised arises, understanding it as such, from what has been transcribed, that its purpose is: ‘to preserve, affirm and pursue the interests enunciated by the Constitution itself’. Under this same logic, it is understood from the Labor Procedural Reform, which defines the right to strike as: ‘Article 371. A lawful strike is a right consisting of the concerted and peaceful suspension of work, in a company, institution, establishment, or workplace, agreed upon and executed by a plurality of at least three workers, representing more than half of the votes cast in accordance with Article 381, by the employees involved in a collective labor dispute, for the following: The defense and promotion of their economic and social interests. The defense of their rights in the collective legal disputes indicated in Article 386’ [...]. By establishing intrinsic limits by law to the right to strike, which has a motive or purpose, such as ‘the defense and promotion of their economic and social interests’, engaging in other activities during the strike that do not seek the defense or promotion of their rights and interests as part of its exercise is clearly excluded. In this sense, it constitutes an overreach of the right and lacks all logic and reasonableness to consider that vacationing outside the country during the strike movement is part of its exercise, since, like all fundamental rights, they must be exercised in light of constitutional principles [...]. Thus, it is clear to this Ministry that the accused’s conduct is carried out in clear abuse of right, contrary to the loyalty, morality, probity, and good faith that must govern every employment relationship, as prescribed, in addition to the norms cited in the preceding paragraphs, by Article 19 of the Labor Code. It must be emphasized that the public function has the particularity of being aimed at satisfying the needs of the general population or at least a large group of people, hence the demands on the performance and conduct of public officials are greater; particularly if the direct beneficiaries are minorities or vulnerable groups, as in this case, minors. From the foregoing, the need for public servants to be governed by norms adhering to legality, probity, morality, and good customs is more vehemently justified, with the understanding that what does not fit within that parameter must be sanctioned; especially since such a situation entails a loss of trust for the Administration [...]. In this sense, the misconduct having been credited, the violation of the principle of the best interest of the minor, the abuse and deviation of the right to strike by the accused, and with it the violation of the duties of probity, good faith, loyalty, and trust to her employer being clear, this Office considers that based on Articles 43, 57 subsections a), b), c), e) and 1), 58 subsection g) and 60 of the Civil Service Statute, 50 subsections b) and d) of the Regulations of the Civil Service Statute, 9 subsection e), 11 subsection b), 13 subsections 1), 2) and 3) and 15 subsection c) of the Teaching Career Regulations, 42 subsections a), c), q) of the Autonomous Service Regulations of the Ministry of Public Education, 3, 4 and 44 of the Law against Corruption and Illicit Enrichment in Public Service, in harmony with Article 71 of the Organic Law of the Comptroller General of the Republic, all in accordance with Articles 19, 71 subsections b) and d) and 81 subsections a) and 1) of the Labor Code; the appropriate course of action is to TERMINATE from all her positions in this Ministry, the employee [Name 001], whose details are recorded in the file.**\n\nIn close relation to what has been indicated, this Tribunal does not share the reasoning given in the referenced resolution, which, with citation and mention of the Civil Procedural Code and Resolutions of the Administrative Tribunal of the Civil Service, develops the value and lack of rebuttal of the documentary evidence, such as the migration certification *(proven facts 2 to 4, undisputed)* which indicated that from October 5 to October 16, 2018, the plaintiff left the country during the national strike of educators and other public officials that began on September 10, 2018. Then, it argues that the fact that the plaintiff left the country contravenes the intrinsic nature and exercise of the right to strike *(however, in the opinion of the Tribunal, the MEP in its resolution does not develop, based on useful legislation, jurisprudence, or doctrine, what duties were actually breached by the plaintiff, as a worker, in the context that the strike was declared legal, as will be seen later, and the MEP also did not explain, it is emphasized, based on valid legal sources, what were the specific conducts not performed by the plaintiff during the strike, such as: marching, showing up at the workplace, showing up to sign in at the workplace, remaining in a certain place or geographical area, during the working day contained in the individual employment contract, which, by the way, by effect of Article 371 of the Code, was suspended; in the clear context, additionally, of the declaration of legality of the referenced strike that began on September 10, 2018, according to resolution No. 039 of the SECOND CIRCUIT LABOR APPEALS TRIBUNAL OF SAN JOSÉ, THIRD SECTION, at ten o'clock on February nineteenth, two thousand nineteen, that is, if the plaintiff's employment contract was suspended by virtue of the article and the sentence just referred to, the MEP omits in the dismissal resolution to indicate, based on the facts and the law, and not on essentialisms, legal natures, and moral judgments, what duties were omitted by the worker, as could well be a displacement during or outside the working day, within or outside the country, or if she indeed had duties inherent to the protest, such as going to march through the streets and avenues of the country; there simply are no facts, evidence, or certain, real, and unequivocal legal grounds upon which the MEP could have relied to understand what set of duties, the correct and morally acceptable conduct, the plaintiff should have had during the referenced strike; there is simply a factual, evidentiary, argumentative, and intellective deficit in this regard in the act contained in the analyzed resolution)*; that her actions impeded the right to education of the minors of the educational center where the plaintiff worked *(however, in the thinking of this Tribunal, without a clear indication of the facts that constituted damage to the education of minors, and the corresponding value of the evidence demonstrating it)*; it alludes to the violation of Articles 57 and 58 of the Civil Service Statute, and others, which provide obligations for educators *(despite, according to this Tribunal's assessment, the record not showing that the plaintiff served as an educator, but rather as an Administrative Assistant),* implying that the educator's duty of good customs, the best interest of the minor, moral solvency, contributing to public order, the Principle of Legality; all of these had been violated by the plaintiff due to the charged facts *(see proven facts 6 and 7)*; in the context, additionally, of the commitments made by Costa Rica in the Convention on the Rights of the Child, contemplated in the Childhood and Adolescence Code. Further on, with mention of jurisprudence and constitutional norms, it describes the right to strike as the peaceful protest of workers, among other details, for obtaining social, economic, and general benefits regarding the substantial legal situations of employment contracts, highlighting that the right to strike implies the temporary suspension of employment contracts ; upon which it concretely reiterates that it had credited the misconduct *(however, in the thinking of this Tribunal, the resolution does not refer, based on the Constitutional Principles of Criminal Law, applicable to administrative sanctions, to the norm describing the typification of the conduct, the typification of the sanction, nor much less legislation, jurisprudence, or even doctrine, that would determine in a certain, unequivocal, and beyond any doubt manner, that the conduct attributed to the plaintiff was a misconduct linked to the Duty of Probity, and not a strictly labor misconduct)*, but rather, through the use of moral judgments, description of legal natures, essentialisms, indeterminate legal concepts, and lengthy semantic expositions; the referenced resolution understood the violation of the principle of the best interest of the minor, the abuse and deviation of the right to strike by the accused, as well as the violation of the duties of probity, good faith, loyalty, and trust to her employer to exist; however, in the opinion of this Tribunal, from the clear perspective of Legal Realism, and in compliance with the duties of motivation of the administrative act derived from Articles 132 and following of the General Law of Public Administration, at no time did the referenced resolution develop, on the ground of facts, evidence, and the direction provided by written positive law, sufficient argumentation (from useful and pertinent sources of legal discourse, namely at a minimum, legislation, jurisprudence, or doctrine); to understand that the misconduct committed by the plaintiff corresponded to duties of Probity or Public Treasury, derived from Articles 3, 4, and 44 of the Law against Corruption and Illicit Enrichment in Public Service, in harmony with Article 71 of the Organic Law of the Comptroller General of the Republic, and that, on the contrary, it was not a case of a simple labor misconduct. All these conclusions, added to the observations made by this chamber, are not shared for the reasons detailed.\n\nAdditionally, although the plaintiff did not directly question the existence of the alleged conduct (but rather the matter governing the offense) in the administrative venue, nor in the judicial venue; she has been maintaining that the conduct attributed in disciplinary procedure 629-2018 followed by the MEP, namely, leaving the country from October 5 to 16, 2008, during the national strike, did not correspond to an injury to the duty of probity, good faith, loyalty, and trust that governs the employment relationship with this Ministry; but rather that the central axis of the plaintiff's strategy in the administrative venue and now in the judicial venue, was to try to achieve the declaration of prescription of the MEP's disciplinary power, arguing that the MEP determined the appropriateness of her dismissal, and consequently the dismissal of the exception of prescription of the disciplinary power, based on Articles 3, 4, and 44 of the Law Against Corruption and Illicit Enrichment in Public Office; it being correct, according to the plaintiff's understanding, that the disciplinary power must be declared prescribed, according to the preferential legal application of Article 414 of the Labor Code, instead of Articles 3, 4, and 44 of the Law Against Corruption and Illicit Enrichment in Public Office, all of which motivates, in her opinion, that the disciplinary power must be declared prescribed, also based on Articles 1, 14, 15, and 17 of the Labor Code and specifically on the Principle of Doubt in Favor of the Worker. Added to this, the plaintiff justified that the classification of the offense as violating the Principle of Probity, Good Faith, and Trust is not correct, since in the exercise of her duties as an Administrative Assistant she was not questioned for acts contrary to the public interest; decisions violating impartiality; decisions contrary to the MEP's objectives; failure to attend to priority collective needs; rectitude; good faith; inappropriate use of public resources; in addition to this, according to the plaintiff's understanding, as stated in the legal basis section of her lawsuit, she argues that the dismissal act is illegal because it ignores the Principle of Speciality and Subjection contained in Articles 1, 14, and 15 of the Labor Code, for injuring, she reiterates, the Principle of Doubt in Favor of the Worker of section 17 of the referenced regulatory body; and Articles 128, 132, and 133 of the General Law of Public Administration; reasons which, all summed up, are shared by this Court, which rather understands, cites, and reviews the content of the aforementioned Principle of Probity, which in that regard national legislation describes as follows: \"Article 3 - Duty of Probity. The public official shall be obliged to orient their management toward the satisfaction of the public interest. This duty shall be manifested, fundamentally, by identifying and attending to priority collective needs, in a planned, regular, efficient, continuous manner and under conditions of equality for the inhabitants of the Republic; likewise, by demonstrating rectitude and good faith in the exercise of the powers conferred by law; ensuring that the decisions adopted in compliance with their attributions conform to impartiality and to the objectives proper to the institution in which they serve and, finally, by administering public resources in adherence to the principles of legality, effectiveness, economy, and efficiency, rendering accounts satisfactorily\"; a rule that, in the clear context that the plaintiff's departure from the country occurred during a legal strike, so ruled by resolution No. 039. LABOR APPEALS COURT II JUDICIAL CIRCUIT OF SAN JOSÉ. THIRD SECTION, at ten o'clock on February nineteenth, two thousand nineteen, and the existence of said strike implied the temporary suspension of the plaintiff's employment contract, this Court finds no argument in that sense to understand that said offense injured the Duty of Probity and the large number of indeterminate legal concepts such as: public interest, priority collective needs, rectitude, impartiality, effectiveness, economy, efficiency, accountability; concepts that although they exist and are mentioned in the law, do not enable the MEP to understand, in an abstract sense for the better understanding of the case; that the conduct of leaving the country during a legal strike, which has the effect of temporarily suspending employment contracts; implies being in the presence of an injury to such concepts or to said article, and specifically to the Duty of Probity, given that there did not exist, at least in the literal text of resolution 476-2019 of two forty-four in the afternoon on February thirteenth, two thousand nineteen, the argumentation and invocation of a prior objective, subjective, and sanctioning definition, that would have classified and determined the conduct of leaving the country, or one's home, or a given geographic place or area, by a public official, during a legal strike, as an injury to the Duty of Probity, a conduct also deserving of dismissal without employer liability. That is, the exercise of objective, subjective, and sanctioning definition is necessary in the Rule of Law, in such a way that it guarantees in turn the unrestricted exercise of defense and due process, but this sanctioning definition should not rest on the creation of principles, with indeterminate legal concepts, which in turn enable moral, essentialist judgments about legal natures, making the effective application and guarantee of due process impossible in the disciplinary procedures faced by public officials. In any case, although the conduct attributed to the plaintiff, referred to above, is not understood to be coupled with the Principle of Probity, but rather with labor matters, whose prescription was alleged, this is the analysis that will occupy the following section.
\\r\\nB-) Regarding the alleged prescription of the disciplinary power. Both in the administrative venue and in the judicial venue, the plaintiff has been maintaining that the offense prescribed, on the grounds that more than one month elapsed between the certain knowledge that the administration had of the facts and the summons or the notification of the statement of charges, which is why, according to Article 414 of the Labor Code, the offense would be prescribed; according to its clear content which provides: \"Article 414.- Notwithstanding the provisions of special regulations on the statute of limitations, the rights and actions of employers to justifiably dismiss workers, or to discipline their offenses, shall prescribe within one month, which shall begin to run from when the cause for separation or sanction arose or, as the case may be, from when the causal facts were known. In the event that the employer must comply with a sanctioning procedure, the intention to sanction must be notified to the employee within that period and from that moment, the month shall begin to run anew at the moment when the employer or the competent body, as the case may be, is in a position to resolve, unless the procedure is paralyzed or stopped due to fault attributable exclusively to the employer, a situation in which the statute of limitations is applicable if the paralysis or suspension covers that entire period.\" (see response to statement of charges in administrative file and lawsuit brief). For its part, the State's representation, in support of the MEP's actions, understands that the offense against the Duty of Probity is governed by Articles 3, 4, and 44 of the Law Against Corruption and Illicit Enrichment in Public Office, in harmony with Article 71 of the Organic Law of the Office of the Comptroller General of the Republic which provides: \"Article 71 - Prescription of disciplinary liability. The administrative liability of the public official for the infractions provided for in this Law and in the higher control and oversight regulations shall prescribe according to the following rules: a) In cases where the irregular act is notorious, the liability shall prescribe in five years, counted from the occurrence of the act. b) In cases where the irregular act is not notorious - understood as one requiring an inquiry or an audit study to report its possible irregularity - the liability shall prescribe in five years, counted from the date on which the report on the respective inquiry or audit is made known to the head or the official competent to initiate the respective proceeding. The statute of limitations shall be interrupted, with continuous effects, by the notification to the alleged offender of the act ordering the initiation of the administrative proceeding. When the author of the offense is the head, the term shall begin to run from the date on which they terminate their service relationship with the respective entity, company, or body. It shall be deemed a serious offense of the official competent to initiate the sanctioning proceeding, not to initiate it in a timely manner or to allow the offender's liability to prescribe, without justified cause\"; given that the immigration certification was received in the MEP's Disciplinary Management Department on October 24, 2018, that the statement of charges was issued on November 5, 2018 and was notified to the plaintiff on December 11, 2018, therefore the corresponding five-year period had not elapsed (See proven fact number 10 regarding resolution 476-2019 of two forty-four in the afternoon on February thirteenth, two thousand nineteen, which determined, among other things, the termination of the plaintiff's employment relationship with the MEP without employer liability, which was a fact not contested by the parties, also see images 14 through 26 and 163 of the digital judicial file). As can be clearly seen, the material object of the dispute rests on whether Article 414 of the Labor Code should be applied, which determines that the disciplinary power over labor offenses prescribes one month after the employer's representation becomes aware of the offense, or Article 71 of the Organic Law of the Office of the Comptroller General of the Republic, which determines that said term is five years.\n\nSpecifically, according to the analysis carried out in the preceding section, which understands that the conduct and eventual fault of the plaintiff is governed by labor matters and not by the broad spectrum of conduct that may fit and be considered a violation of the Principle of Probity (Principio de Probidad); this Court considers that the plaintiff is correct in seeking to declare the disciplinary power over the imputed facts time-barred (prescrita), given that it is recorded in proven facts 6 and 7 that on **05 November 2018** the MEP issued the statement of charges (traslado de cargos) for disciplinary proceeding 629-2018 against the plaintiff *(that is, at that moment the State had full knowledge that there was sufficient merit and evidence to impute and demand disciplinary responsibility)*; and it was not until **11 December 2018** that the statement of charges for administrative disciplinary file 629-2018 was notified to the plaintiff; that is, the one-month period that the MEP had to perform the notification (intimación) and suspend the statute of limitations (plazo de prescripción) was exceeded, in clear failure to observe Article 414 of the Labor Code (Código de Trabajo), despite the fact that it is clearly known to this Court that the MEP has the human, material, economic, logistical, and computer resources to have carried out the notification in a timely and proper manner; nevertheless, this did not happen, and instead, the existence of the statute of limitations (prescripción) of the disciplinary power is deemed proven, based factually on the documentary evidence contained in the case file and in the administrative file, which provides content for proven facts 6 and 7, which are clear and unequivocal in indicating that more than one month elapsed between the issuance of the transfer order and the notification; the proper course in law, as was well stated, being to declare time-barred the fault notified and described in proven fact 6, consisting, as was well stated, of the fact that from 05 October to 16 October 2018, the plaintiff left the country during the national educators' and other public officials' strike (huelga nacional de educadores y otros funcionarios públicos) that began on 10 September 2018 *(see also proven fact number 2)*. For this reason, it is deemed appropriate to grant claim number 2, which requests this court to declare the nullity and invalidity, for being contrary to law, of Resolution 476-2019, which indeed, on the grounds given, is hereby declared null and void in every legal sense, due to the statute of limitations (prescripción) of the fault caused by the responsibility and inertia of the MEP, without prejudice to the reparations that will be discussed in the following section.-\n\nThat with the reform undergone by Article 71 of the Organic Law of the Comptroller General of the Republic, the valuation criterion was changed, to determine the applicable statute of limitations period, since it moves from a subjective regime to an objective one. That is, it is no longer necessary to undertake the exercise of assessing whether the servant is an employee of the Public Treasury (Hacienda Pública) (subjective aspect). It is sufficient to determine the transgression of the control and oversight system of the Public Treasury (Hacienda Pública), which follows an objective material criterion (...)\" [the bold text is ours]. Given the foregoing, this judge rules out that in this case the statute of limitations on the disciplinary power has run, since it is proven in the record that from the time the plaintiff returned to the country until the Administration notified the disciplinary procedure against her, a period not even close to five years elapsed, but only a few months; under the protection of article 71 of Law No. 7428, as well as articles 39 and 43 of Law No. 8292, the five-year period regulated by the special law has not even run to the date of issuance of this decision. Now, given that the plaintiff made no further legal argument nor denied the alleged facts, limiting herself solely to alleging the statute of limitations on the sanctioning exercise, and since the Administration has established the fault, the appropriate course is the ratification of what was done by the authorities of the Ministry of Education, as I consider the actions taken and resolved to be in accordance with the law and the merits of the record, because the act of termination of the official's interim appointment (cese del interinato) contains no nullity defect. Therefore, as stated by the Administration: \"(...) having established the fault, the violation of the principle of the best interests of the minor being clear, the abuse and misuse of the right to strike by the defendant, and with them the violation of the duties of probity (probidad), good faith (buena fe), loyalty (lealtad), and trust (confianza) towards her employer, this Office considers that based on articles 43, 57 subsections a), b), c), e) and l), 58 subsection g) and 60 of the Civil Service Statute (Estatuto del Servicio Civil), 50 subsections b) and d) of the Regulation of the Civil Service Statute (Reglamento del Estatuto del Servicio Civil), 9 subsection e), 11 subsection b), 13 subsections 1), 2) and 3) and 15 subsection c) of the Teaching Career Regulation (Reglamento de la Carrera Docente), 42 subsections a), c), q) of the Autonomous Service Regulation of the Ministry of Public Education (Reglamento Autónomo de Servicios del Ministerio de Educación Pública), 3, 4 and 44 of the Law against Corruption and Illicit Enrichment in Public Office (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), in harmony with article 71 of the Organic Law of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República), all in accordance with articles 19, 71 subsections b) and d) and 81 subsections a) and l) of the Labor Code (Código de Trabajo); the appropriate course is to DISMISS from all her positions in this Ministry, the servant [Nombre 001], whose details are in the record (...)\" [the bold text is supplied]. In conclusion, for this judge, what procedes in law is to reject the statute of limitations argument raised by the plaintiff, since the one-month period established in the general law is not applicable, but rather the five-year period contained in the special law, as set forth above, which leads to the rejection of this claim. In turn, the requested reinstatement (reinstalación) and the claimed economic damages would also not be appropriate, not only because it is a claim ancillary to the main one which has been rejected, but also because it was evidenced in the record that the servant only held an interim (interino) position, that is, a precarious one, so she did not enjoy the job stability (estabilidad laboral) of permanently appointed (en propiedad) officials, but only what has been called improper or relative stability (estabilidad impropia o relativa). As a corollary of the foregoing, in the opinion of the undersigned, the claim must be declared without merit in all its claims, with costs (costas) awarded against the plaintiff\".
\n\nThe plaintiff engaged in that conduct, which was considered by the employer to be an act contrary to the loyalty, morality, probity, and good faith that must govern every employment or labor relationship, warranting the most drastic of sanctions, namely dismissal, especially since conduct such as that described also entails a total loss of trust in the employer. Likewise, it should be noted that, in issuing the aforementioned resolution, the procedure that, in this case, involving an employee in an interim (interina) condition, is legally appropriate was followed (notice of charges (traslado de cargos), case file made available to the plaintiff, deadlines to present evidence and make arguments, notifications of all proceedings, each with its due basis, duly notified, and deadlines for appeals, of which the plaintiff made use). Furthermore, having said the above, and specifically regarding the issue of the statute of limitations (prescripción) that is alleged, it must be established whether said legal institute is the one established in labor legislation, or rather, the one in the Law Against Corruption and Illicit Enrichment in Public Service (Ley Contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública) (article 44), which refers back to article 43 of the General Law of Internal Control (Ley General de Control Interno) and article 71 of the General Comptroller of the Republic (Contraloría General de la República). That is to say, for the case at hand, since the irregular act is notorious, the applicable statute of limitations is five years. The plaintiff argues that, since the dismissal was based on labor legislation (articles 19, 71 subsections b) and d), article 81 subsections a) and L), the statute of limitations must also be that of said legislation established in numeral 414 and not the five-year one. However, as was set forth in the Resolution being appealed (No. 476-2019), the plaintiff, through her actions, violated numerals 3 (duty of probity), 4 (violation of the duty of probity), and 44 (statute of limitations for administrative liability), all from the Law Against Corruption and Illicit Enrichment in Public Service (No. 8422), and, therefore, article 71 of the Organic Law of the General Comptroller of the Republic is applicable to them, regarding the five-year prescriptive period. The foregoing because, as can be seen from Considerando I of Resolution No. 476-2019, it stated: “As was noted in point 3 of the Notice of Charges (Imputación de Cargos), the action attributed to the employee [Name62 001] is a fault related to the exercise of the right to strike, given that she supposedly left the country taking advantage of this situation, which, if proven, totally conflicts with the probity that a public official must demonstrate at all times, since it would directly affect the public treasury, because the Ministry of Public Education (Ministerio de Educación Pública) would be paying a salary to an employee who was enjoying herself outside the country, while her peers were participating in the activities scheduled within the strike. Therefore, for this type of action and in accordance with the applicable regulations, the statute of limitations period is five years from the knowledge of the fault as established in articles 3, 4, and 44 of the Law Against Corruption and Illicit Enrichment in Public Service, in harmony with article 71 of the Organic Law of the General Comptroller of the Republic, so that, evidently, we are not facing a statute of limitations on disciplinary power.” (Considerando I of Resolution No. 476-2019). On the other hand, according to the list of claims, the plaintiff requests the annulment of resolution No. 476-2019 of 2:44 p.m. on February 13, 2019, and, consequently, that she be restored to the legal situation she was in before the issuance of said resolution, reinstating her in her job. It is indisputable, as follows from the very facts of the lawsuit, as well as from the documentary evidence in the case file, that Ms. [Name62 001] was linked to the Ministry of Public Education under an interim condition, that is, her job stability was improper, meaning relative, different from employees who hold a permanent appointment (nombramiento en propiedad). Ms. [Name62 001] had been appointed for fixed periods (a plazo) since April 2012, the last of these appointments being from February 1, 2016, to July 31, 2019, and always subject to the application of a permanent appointment, promotion, demotion, or transfer of another employee, or the resolution of a shortlist (terna) resulting from an internal or external competition of the Directorate General of Civil Service (Dirección General de Servicio Civil). (See Personnel Action No. 201601-MP-1737741). However, as of February 25, 2019, according to Personnel Action No. 201902-MP-4093546, the cessation of the interim appointment without employer liability was ordered in accordance with the provisions of Resolution 476-2019. Regarding the reinstatement (reinstalación) of employees appointed on an interim basis, the Cassation Court for Contentious-Administrative Matters (Tribunal de Casación de lo Contencioso Administrativo) stated: VI.- Now then, it is important to make clear that the consequence of the illegality of a dismissal is the reinstatement of the official to the position they held, however, this rule must be applied exclusively to those employees who held positions permanently and not on an interim basis. The appellant is correct on this point, even when indicating that the Court improperly assessed official letter no. 0251-DRL-11 from the Limón Regional Directorate, regarding the fact that Ms. …'s appointment was until June 30, 2010. In this regard, it is clear that the interim official enjoys stability, but of a relative nature, which means they do not have a subjective right to have their appointment extended indefinitely, and therefore would not have the right to reinstatement, at least during the time they were not appointed. The fact that her position was extended since 2008 does not give her the right to be considered an indefinite-term employee, since her position was interim. Nor does a valid expectation exist that she would be appointed again, since it was equally foreseeable that upon the termination of her designation, the Agency could decide (by virtue of the problems she was accused of) not to renew her appointment. In fact, the points that this Chamber questions weigh here; first, the OIJ should have taken care to appoint the permanent holder of the position that Agent […] occupied, especially if she was being questioned; or failing that, wait for her appointment to expire and dispense with her services (by means of a duly reasoned determination) since the interim employee had no right whatsoever to be appointed indefinitely; it was enough for the time to expire to terminate the employment relationship. In any case, acting otherwise neither gave the OIJ the right to abruptly revoke the plaintiff's appointment (while it was in full force); nor gave Ms. […] the possibility of being reinstated in the position. Consequently, she would also not have the option of receiving salaries from the cessation of her duties until an effective reinstatement, since this last possibility is inadmissible because her appointment was until a specific date. What she is entitled to is compensation for the salaries she stopped receiving, from the dismissal (May 13, 2010, according to official letter 511-DG-10) until the end of her appointment (June 30, 2010), under the terms and conditions established in the judgment, that is, deducting the corresponding legal charges and indexing those sums. In this understanding, the second argument of the State must be accepted.” (Cassation Court for Contentious-Administrative Matters. No. 000082-F-TC-2013 of 2:00 p.m. on August 22, 2013. See, in the same vein, from that same Court, judgment No. 000096-F-TC-2016 of 9:25 a.m. on August 4, 2016). (The bold highlighting does not correspond to the original). Therefore, even admitting as a remote possibility that the act of cessation of the plaintiff's interim appointment were to be annulled, reinstatement is not appropriate for the reasons outlined by the Contentious-Administrative Court in the aforementioned rulings. It is not superfluous to point out that —although the plaintiff does not challenge it— my client, for the adoption of the act of the plaintiff's cessation, formalized the opening of an administrative procedure, identified with the number 629-2018, in which it complied with the guarantees of due process and the right of defense, as can be seen from the aforementioned disciplinary case, where the notice of charges exists, with the due summons (intimación) and imputation thereof, a hearing with a deadline for the plaintiff to exercise her defense, in which she had proper professional advice, with the case file at her disposal, an opportunity to appeal, with the proceedings substantiated and duly notified. In summary, there are no grounds to declare the annulment requested by the plaintiff. Consequently, this leads to the rejection of the claimed pecuniary damage (daño patrimonial) and subjective moral damage (daño moral subjetivo). I request that the expert evidence offered by the plaintiff be rejected as unnecessary. In addition to the above, the State's representation incorporates a section of defenses in which it raises the defense of lack of right (falta de derecho) and offers as evidence the certification of the disciplinary administrative file No. 629-2018, pursued against the plaintiff (See image 79 to 88).\n\nII-) PROVEN FACTS. For this Court, the following are considered as demonstrated factual circumstances:\n\n1-) On April 24, 2012, the plaintiff began working at the MEP, as an interim permanent holder (propietaria interina) [sic] (Uncontroverted fact, see also image 10 of the digital judicial file).\n\n2-) From October 5 to October 16, 2018, the plaintiff left the country during the national strike of educators and other public officials that began on September 10, 2018 (Fact not controverted by the parties).\n\n3-) On October 19, 2018, through official letter DGD-UTR-965-2018 signed by Mr. Ronald Nuñez Varela, Head of the Rapid Processing Unit of the MEP, he requested immigration to certify the report of entries and exits of the plaintiff in the months of September and October 2018 (Uncontroverted fact).\n\n4-) On October 26, 2018, the MEP received the immigration certification indicating that the plaintiff was out of the country from October 5 to 16, 2018 (uncontroverted fact, see also image 93 of the digital judicial file).\n\n5-) On October 26, 2018, through resolution 3940-2018, the Human Resources Directorate of the MEP ordered the initiation of a disciplinary procedure against the plaintiff (Uncontroverted fact).\n\n6-) On November 5, 2018, the MEP issued the notice of charges of disciplinary case 629-2018 against the plaintiff in which it imputed to her: \"... in your condition as Administrative Assistant of the [...] School, attached to the Regional Directorate of Education of Coto, taking advantage of the National Strike movement that began on September 10, 2018, you left the country without having justification for it, for a motive or reason unrelated to the strike, during the period from October 5 to October 16, 2018, according to Certification issued by the Ministry of Governance and Police, Directorate General of Migration and Aliens, Migration Management, thereby violating the duty of probity, good faith, loyalty, and trust that governs the employment relationship with this Ministry\" (Uncontroverted fact, see also by the parties).\n\n7-) On December 11, 2018, the notice of charges from disciplinary administrative file 629-2018, indicated in the previous proven fact, was notified to the plaintiff (Uncontroverted fact, see also image 35 of the digital file and folio 21 of the administrative file).\n\n8-) On December 21, 2018, the response to the notice of charges from disciplinary administrative file 629-2018, indicated in the previous proven fact, was filed by the plaintiff, in which she raised the defense of statute of limitations and did not object that from October 5 to 16, 2018, she left the country, without permission from the MEP as employer, during the national strike of educators and other public officials that began on September 10, 2018 (See images 124 to 127 of the digital judicial file, see also folios 31 to 34 of the administrative file).\n\n9-) On February 4, 2019, the oral and private hearing for the evidentiary phase of disciplinary case 629-2018 pursued against the plaintiff was held (See image 140 35 of the digital file and folio 21 of the administrative file).\n\n10-) On February 18, 2019, the administrative act contained in resolution 476-2019 of two forty-four p.m. on February thirteenth, two thousand nineteen, was notified, which determined, among other things, the termination of the plaintiff's employment relationship with the MEP without employer liability (Fact not controverted by the parties, see also images 14 to 26 and 163 of the digital judicial file).\n\nIII-) COURT'S ASSESSMENT OF THE CASE THEORY.\n\n1-) Preliminarily on form. This court verified: the correct filing of the lawsuit (images 2 to 58); the submission of a precautionary measure with its corresponding hearing granted to the defendant and its respective resolution by this Court (see precautionary measure file); the issuance and notification of the order of transfer (auto de traslado), its corresponding notification, and after this, the State's response to the lawsuit with the raising of the defense of Lack of Right and the appropriate hearing to the plaintiff regarding said defense (images 75 to 172). Finally, the holding of the Preliminary Hearing and its respective phases were verified: sanitization; preliminary defenses; the establishment and confirmation of the claims, in the same terms set forth in the lawsuit brief; the determination of facts 7, 8, 9, 12, 13, and 14 as controverted in the process; the admission of documentary evidence, the declaration that the process was purely legal, and the corresponding opportunity for the parties to present conclusions (images 179 to 181).\n\n2-) On the merits of the matter. This court, under the drafting of Judge Nombre89, after assessing the case theory of the procedural parties, concluded, by majority criterion, that the plaintiff is correct in her lawsuit and that for this reason, she has grounds to succeed in her procedural claim; therefore, the defense of Lack of Right raised by the defendant is deemed without merit, according to the following system of reasons:\n\nA) On the nature of the fault attributed to the plaintiff. The plaintiff began working at the MEP on April 24, 2012, as an administrative assistant in the condition of interim permanent holder [sic]; it being demonstrated in disciplinary administrative procedure 629-2018 pursued by the MEP, that from October 5 to October 16, 2018, she left the country during the national strike of educators and other public officials, which began on September 10, 2018, without employer permission (see proven facts 1 to 5); reason why, in the disciplinary procedure indicated above, she was charged: \"[...] in your condition as Administrative Assistant of the [...] School, attached to the Regional Directorate of Education of Coto, taking advantage of the National Strike movement that began on September 10, 2018, you left the country without having justification for it, for a motive or reason unrelated to the strike, during the period from October 5 to October 16, 2018, according to Certification issued by the Ministry of Governance and Police, Directorate General of Migration and Aliens, Migration Management, thereby violating the duty of probity, good faith, loyalty, and trust that governs the employment relationship with this Ministry\"; conduct that in resolution 476-2019 of two forty-four p.m. on February thirteenth, two thousand nineteen, justified, according to the MEP's understanding, the termination of the plaintiff's employment relationship with the MEP without employer liability (This factual set is not controverted and is stated in proven facts 6 to 10 above set forth in chronological and sequential order). Additionally, in resolution 476-2019, regarding the existence and nature of the fault, it was resolved: \"ON THE MERITS OF THE MATTER: In the present case, [Name62 001], in her condition as Administrative Assistant of the [...] School, is charged with the commission of alleged serious faults in the exercise of her functions. Analyzing the reported facts and based on the certification of migratory movements from the Registry of International Movements of Persons of the Directorate General of Migration and Aliens, the cited fact was imputed to the defendant, which was notified on December 11, 2018 -folio 24- and finally responded to on the 21st of the same month and year -folios 25 to 24-. The legal representative of the accused requests, in the statement of defense (escrito de descargo), the material evidence on which the administration has certified the conduct of the accused concludingly. On this point, and of interest for the present resolution, the representative must be informed that the certification was issued by the relevant authority, which is the Directorate of Migration and Aliens.\n\nIt is necessary to bring up what is indicated by national legislation, in the Code of Civil Procedure of the Republic, which regarding documentary evidence in its articles 369 and 370 indicates: (Article 45.2 in the new Code of Civil Procedure) [...] Even more important is what is indicated in the same legal body, in its article 353, which states: [...] As a corollary, it is appropriate to bring forth here jurisprudence from the exalted Administrative Tribunal of the Civil Service, which in its resolution No. 032-2017 of May 26 of this year, regarding the matter of evidence, indicated: \"In order to complement the referenced norm, it is also appropriate to cite the following extract from Judicial jurisprudence, which in application of the cited numeral 353 has upheld the prevalence of documentary evidence over testimonial evidence when both are confronted, as in the present case: [...] Thus, in relation to the above and of capital importance for the case at hand, due to not having evidence to the contrary, since it was not refuted in her defense nor in the hearing conducted with the witness provided; it is effectively proven that the servant [Name62 001] left the country in the midst of the strike movement that affected this ministerial portfolio, using the situation arising from the paralysis of functions at the teaching level, to execute actions foreign to the very nature of the right to strike, which is what is intended by those who initially support it and which, in addition to being amply proven with the sworn statement of her immediate superior Grace Beita Alpízar on folios 51 and 52 of the expediente, it is reiterated, was not denied by the respondent in her defense. In this line, her actions are more than reprehensible, insofar as she ceases to provide the public service for which she was hired and receives the respective remuneration, in exchange for participating in the National Strike movement to which she certainly has a right, but taking advantage of that situation, she leaves the country during the imputed dates, carrying out activities completely foreign to the exercise of the aforementioned right to strike. Situations like those attributed to the cited official definitively tarnish the public function that we, as servants, are called to perform, insofar as shielding oneself to use it as a license or justification for vacationing –in the specific case– contravenes all logic of employment –public or private– and must not be overlooked, and the necessary measures must be taken to safeguard the interests of the Administration as well as those of the most vulnerable population –the students–. The teaching processes established in our educational system at its different levels must be executed under the most suitable conditions, which implies, among other things, that minors are receiving their lessons within a healthy and balanced environment. It is well known that, at the national level, the strike has generated an environment of emotional and educational instability for all those who have not participated in it –teachers and students alike– which has come to affect the quality and development of the school year within the national standards that are pre-established at the beginning of each year, thus curtailing the learning and teaching process that goes hand in hand with the learning level in which the teachers are immersed –in direct relation to the educational level they are in–. This environment of tranquility and harmony must prevail in every educational institution, hence the reprehensibility of the respondent's actions, insofar as the impact that affects the normal development of the aforementioned processes –teaching and learning– is assessed, which in turn constitutes a significant disruption in the adequate development of the study programs, with the consequent gap in the learning process for the students enrolled in the cited educational center. This impact also implies that their right to education, to which minors are constitutionally entitled, is violated, since the provision of this service would not be effective nor constant and, in most cases, it is not possible to recover the loss of lessons nor the progress regarding the subject matter that must be covered at each level of education, which will undoubtedly affect them at some point, be it now or in subsequent educational levels, because their foundations could turn out to be incomplete. Under this approach, article 57 of the Civil Service Statute provides among the obligations of teachers, to exercise a direct and systematic action in the formation of the student's personality, with a view to enabling them to live in accordance with the higher values of man and society; likewise, subsection 1) of that same article provides as part of the teaching functions to observe, inside and outside the school, conduct consistent with the principles of morality and good customs. Article 58 of the same regulatory body indicates, for its part, that teachers are prohibited from exercising, promoting, or propitiating activities contrary to public order, as well as incurring in acts that discredit their profession or are contrary to public morality. On the other hand, the Teaching Career Regulation stipulates as serious offenses that the teacher conducts themselves during their work in a way that discredits their profession or that their acts clash with public morality and good customs. Norms such as those indicated are based not only on the nature of the function held by teachers and its importance as they are referents in the education of minors, but particularly on those commitments acquired by Costa Rica since the ratification of the Convention on the Rights of the Child and which were developed in the Childhood and Adolescence Code, which contemplates as an essential basis of their rights the best interests of minors, understanding, according to the provisions of article 5 of the CNA, that any public or private action concerning a person under eighteen years of age must consider their best interest, which guarantees the respect of their rights in a healthy physical and mental environment, in pursuit of full personal development; their condition as subjects of rights and responsibilities must be considered; their age, degree of maturity, capacity for discernment, and other personal conditions; the socioeconomic conditions in which they develop; the correspondence between individual and social interest. Thus, the best interest of the minor is understood as: \"a hermeneutical guideline that should guide all the work of the Public Administration and radiates over those activities of private entities that are of public interest, such as those of school centers\" (judgment of the Constitutional Chamber number 11439-11). Even this implies that the right of the minor, depending on the specific case, prevails over other rights, even if these are legitimate. It is then a comprehensive legal quality that makes the legal interest of the minor have supremacy, predominance, or preponderance over the interests of others; that is, the ‘superiority’ of the Principle supposes the existence of an objective interest that is above the subjective interests of the other parties involved, whether it concerns state institutions, parents, or even the affected minors themselves.\" (Judgment of the Constitutional Chamber number 12458-11). This best interest of the minor is materialized through different avenues, one of them being the various rights protected by our legal system such as the right to education developed in Chapter V of the Childhood and Adolescence Code and endorsed at the constitutional level. These rights being, as is clear, mandatory compliance by citizens, particularly public servants who are constrained by article 11 of the Political Constitution and article 11 of the General Law of Public Administration to govern themselves under the principle of legality, but especially teachers, who in consideration of the norms detailed above, are compelled to protect the rights of minors, to safeguard their integrity, to govern themselves by norms adhering to morality and good customs, to avoid situations that result in an impact on public order, among others. Hence, prioritizing their interests over those of a population such as children is reprehensible in cases like the one at hand, where their education was violated. On the other hand, regarding the strike, judgment No. 1998-01317 of ten hours twelve minutes of February twenty-seventh, nineteen ninety-eight, issued by the Constitutional Chamber of the Supreme Court of Justice prescribes: \"ON THE RIGHT TO STRIKE.- To effectively guarantee free union action, understood as the exercise and enjoyment of the right of unionization, focused on developing and achieving the constitutional purposes enshrined in article 60, the constituent incorporated into constitutional article 61 legal mechanisms that form part of the essential content of the right of unionization, such as\" (...) the right of employers to lockout and of workers to strike, (...)\". These institutes constitute legitimate pressure measures or means of defending the interests of workers and employers that are outlined as the right to temporarily breach the employment contract, in accordance with current national legislation, with the purpose of preserving, affirming, and pursuing the interests that the Constitution itself enunciates and for which the State must provide adequate legal and institutional channels. Our Constitution, for its part, provides: \"Article 60.- Both employers and workers may unionize freely, for the exclusive purpose of obtaining and preserving economic, social, or professional benefits. Foreigners are prohibited from exercising direction or authority in unions. Article 61.- The right of employers to lockout and of workers to strike is recognized, except for public services, in accordance with the determination of these made by law and according to the regulations that it establishes, which must disallow any act of coercion or violence\". However, this does not correspond to an unrestricted right, as it possesses intrinsic limits, derived from the very nature of the right, and external limits, insofar as it cannot affect third parties. Under the logic of these intrinsic limits, the purpose for which the aforementioned right is exercised emerges, understood as such, based on what has been transcribed, that its purpose is: \"to preserve, affirm, and pursue the interests that the Constitution itself enunciates\". Under this same logic, it is understood from the Labor Procedural Reform, which defines the right to strike as: \"Article 371. The legal strike is a right consisting of the concerted and peaceful suspension of work, in a company, institution, establishment, or workplace, agreed upon and executed by a plurality of at least three workers, representing more than half of the votes cast pursuant to article 381, by the employees involved in a collective labor conflict, for the following; The defense and promotion of their economic and social interests. The defense of their rights in the collective legal conflicts indicated in article 386\" [...]. By law establishing intrinsic limits to the right to strike, which has a motive or purpose, such as \"the defense and promotion of their economic and social interests,\" it is clearly excluded to dedicate oneself during the strike to other activities that do not pursue the defense or promotion of their rights and interests as part of its exercise. In this sense, it constitutes an overextension of the right and lacks all logic and reasonableness to consider that vacationing outside the country during the strike movement is part of its exercise, because like all fundamental rights, they must be exercised in light of constitutional principles [...]. In this way, it is clear to this Ministry that the respondent's conduct is carried out in clear abuse of right, contrary to the loyalty, morality, probity, and good faith that must govern every labor relationship as prescribed, in addition to the norms cited in the preceding paragraphs, by article 19 of the Labor Code. It must be emphasized that the public function has the particularity that it is oriented towards satisfying the needs of the general population or at least a large group of people, hence the demands on the performance and manner of acting of public officials are greater; particularly if the direct beneficiaries are minorities or vulnerable groups, as in this case, minors. Based on the foregoing, the need for public servants to govern themselves under norms adhering to legality, probity, morality, and good customs is justified with greater vehemence, and that which does not fall within said parameter must be sanctioned; especially since such a situation entails a loss of trust for the Administration [...]. In this sense, having the offense been accredited, the violation of the principle of the best interest of the minor, the abuse and deviation of the right to strike by the respondent, and with them the violation of the duties of probity, good faith, loyalty, and trust towards her employer being clear, this Office considers that based on articles 43, 57 subsections a), b), c), e) and 1), 58 subsection g) and 60 of the Civil Service Statute, 50 subsections b) and d) of the Regulation of the Civil Service Statute, 9 subsection e), 11 subsection b), 13 subsections 1), 2) and 3) and 15 subsection c) of the Teaching Career Regulation, 42 subsections a), c), q) of the Autonomous Regulation of Services of the Ministry of Public Education, 3, 4 and 44 of the Law against Corruption and Illicit Enrichment in the Public Function, in harmony with article 71 of the Organic Law of the Comptroller General of the Republic, all in concordance with articles 19, 71 subsections b) and d) and 81 subsections a) and 1) of the Labor Code; the appropriate course is the dismissal from all her positions in this Ministry, of the servant [Name62 001], of qualities recorded in the file. In close relation to what has been indicated, this Court does not share the reasoning given in the referred resolution, which with citation and mention of the Code of Civil Procedure and Resolutions of the Administrative Tribunal of the Civil Service develops the value and lack of refutation of documentary evidence, as was the migration certification (proven facts 2 to 4 not controverted) which indicated that from October 5 to October 16, 2018, the plaintiff left the country during the national strike of educators and other public officials that began on September 10, 2018. Then, it argues that the fact that the plaintiff leaves the country contravenes the intrinsic nature and the exercise of the right to strike (however, in the Court's opinion, the MEP in its resolution does not develop, based on useful legislation, jurisprudence, or doctrine, what were the duties certainly breached by the plaintiff, as a worker, in the context that the strike was declared legal, as will be seen later, and the MEP also did not explain, it is emphasized, based on valid legal sources, what were the concrete conducts breached by the plaintiff during the strike, namely, such as: marching, appearing at the workplace, appearing to sign in at the workplace, remaining in a specific place or geographical area, during the workday contained in the individual employment contract, which, by the way, by effect of article 371 of the Code was suspended; in the clear context additionally, of the declaration of legality of the referred strike initiated on September 10, 2018, according to resolution No. 039. LABOR APPEALS COURT II JUDICIAL CIRCUIT SAN JOSÉ. THIRD SECTION, at ten hours of February nineteenth, two thousand nineteen, that is, if the plaintiff's employment contract was suspended by virtue of the article and judgment just referred to, the MEP omits in the dismissal resolution, to indicate based on facts and law, and not on essentialisms, legal natures, and moral judgments, what were the duties omitted by the worker, as may well be a displacement during the workday or outside of it, internally or externally in the country, or if she certainly had duties pertaining to the protest, such as going to march through the streets and avenues of the country, there are simply no facts, evidence, certain, real, and unequivocal legal basis on which the MEP could have relied to understand what the set of duties, the upright and morally acceptable conduct that the plaintiff had to have during the referred strike must have been, there is simply a factual, evidentiary, argumentative, and intellective deficit in this regard in the act contained in the analyzed resolution); that her conduct impeded the right to education of the minors of the educational center where the plaintiff worked (however, in the thought of this Court, without a clear indication of the facts that configured damages to the education of minors, and the corresponding value of the evidence that demonstrates it); it alludes to the violation of articles 57 and 58 of the Civil Service Statute, and others, which provide obligations for teachers (despite, according to the assessment of this Court, that it is not recorded in the file that the plaintiff served as a teacher, but rather as an Administrative Assistant), implying that the teacher's duty of good customs, the best interest of the minor, moral solvency, contributing to public order, the Principle of Legality; all of these, had been violated by the plaintiff for the imputed facts (see proven facts 6 and 7); in the context, additionally, of the commitments acquired by Costa Rica in the Convention on the Rights of the Child, contemplated in the Childhood and Adolescence Code. Further on, with mention of jurisprudence and constitutional norms, it describes the right to strike as the peaceful protest of workers, among other details, for the attainment of social, economic, and general benefits regarding the substantial legal situations of employment contracts, highlighting that the right to strike implies the temporary suspension of employment contracts; on which it specifically reiterates that it had the offense accredited (however, in the thought of this Court, the resolution does not refer, based on Constitutional Principles of Criminal Law, applicable to administrative sanctioning matters, to the norm that describes the typicality of the conduct, the typicality of the sanction, much less legislation, jurisprudence, or even doctrine, that determined in a certain, unequivocal way, and beyond any doubt, that the conduct attributed to the plaintiff was an offense linked to the Duty of Probity, and not a labor offense in the strict sense), but rather, with the use of moral judgments, description of legal natures, essentialisms, indeterminate legal concepts, and long semantic expositions; the referred resolution understood the violation of the principle of the best interest of the minor, the abuse and deviation of the right to strike by the respondent, in addition to the violation of the duties of probity, good faith, loyalty, and trust towards her employer as existent; however, in the opinion of this Court, from the clear perspective of Legal Realism, and in compliance with the duties of reasoning the administrative act derived from articles 132 and following of the General Law of Public Administration, at no time did the referred resolution develop, in the realm of facts, evidence, and the direction conferred by written positive law, the sufficient argumentation (from useful and pertinent sources of legal discourse, namely at least, legislation, jurisprudence, or doctrine); to understand that the offense committed by the plaintiff corresponded to duties of Probity or Public Treasury, derived from articles 3, 4 and 44 of the Law against Corruption and Illicit Enrichment in the Public Function, in harmony with article 71 of the Organic Law of the Comptroller General of the Republic, and that on the contrary, that it was not a simple labor offense. All these conclusions, added to the observations made by this chamber, are not shared for the reasons detailed. Additionally, although the plaintiff did not directly question the existence of the imputed conduct (but rather the matter governing the offense) in the administrative venue, nor in the judicial venue; she has been maintaining that the conduct attributed in disciplinary procedure 629-2018 followed by the MEP, namely, leaving the country from October 5 to 16, 2008, during the national strike, did not correspond to a violation of the duty of probity, good faith, loyalty, and trust that governs the labor relationship with this Ministry; but rather the central axis of the plaintiff's strategy in the administrative venue and now in the judicial venue, was to try to achieve the declaration of prescription of the disciplinary power of the MEP, arguing, that the MEP determined the appropriateness of her dismissal, and consequently the dismissal of the exception of prescription of the disciplinary power, based on articles 3, 4 and 44 of the Law Against Corruption and Illicit Enrichment in the Public Function; the correct thing being, according to the plaintiff's understanding, that the disciplinary power must be declared prescribed, according to the preferential legal application of article 414 of the Labor Code, instead of articles 3, 4 and 44 of the Law Against Corruption and Illicit Enrichment in the Public Function, all of which motivates, in her judgment, that the disciplinary power must be declared prescribed, with support additionally, in articles 1, 14, 15 and 17 of the Labor Code and particularly from the Principle of Doubt in Favor of the Worker.\n\nIn addition to this, the plaintiff justified that the classification of the fault as violating the Principle of Probity, Good Faith, and Trust is not correct, since in the exercise of her duties as an Administrative Assistant she was not questioned for acts contrary to the public interest; decisions violating impartiality; decisions contrary to the MEP's objectives; failure to address priority collective needs; rectitude; good faith; inappropriate use of public resources; in addition to this, according to the plaintiff's understanding, as stated in the legal grounds section of her lawsuit, she argues that the dismissal act is illegal because it ignores the Principle of Specialty and Subjugation contained in articles 1, 14, and 15 of the Labor Code (Código de Trabajo), for repeatedly harming, she reiterates, the Principle of Doubt in Favor of the Worker of numeral 17 of the referenced regulatory body; and articles 128, 132, and 133 of the General Law of Public Administration (Ley General de la Administración); reasons which, all combined, are shared by this Court, which rather understands, cites, and reviews the content of the aforementioned Principle of Probity, which in this regard national legislation describes as follows: \"Article 3-Duty of probity. The public official shall be obliged to orient their management toward the satisfaction of the public interest. This duty shall be manifested, fundamentally, by identifying and attending to priority collective needs, in a planned, regular, efficient, continuous manner and under conditions of equality for the inhabitants of the Republic; likewise, by demonstrating rectitude and good faith in the exercise of the powers conferred by law; by ensuring that the decisions adopted in compliance with their attributions conform to impartiality and to the institution's own objectives in which they serve; and, finally, by managing public resources in adherence to the principles of legality, effectiveness, economy, and efficiency, rendering accounts satisfactorily\"; a rule that, in the clear context that the plaintiff's departure from the country occurred during a legal strike, so ruled by resolution No. 039. TRIBUNAL DE APELACIÓN DE TRABAJO II CIRCUITO JUDICIAL SAN JOSÉ. SECCIÓN TERCERA, at ten o'clock on February 19, 2019, and the existence of said strike implied the temporary suspension of the plaintiff's employment contract, this Court finds no argument in that sense to understand that said fault harmed the Duty of Probity and the large number of undefined legal concepts such as: public interest, priority collective needs, rectitude, impartiality, effectiveness, economy, efficiency, rendering of accounts; concepts that, although they exist and are mentioned in the law, do not enable the MEP to understand, in an abstract sense for the better understanding of the case, that the conduct of leaving the country during a legal strike, which has the effect of temporarily suspending employment contracts, implies being in the presence of a harm to such concepts or to said article, and specifically to the Duty of Probity, given that there was not, at least in the literal text of resolution 476-2019 of fourteen hours and forty-four minutes on February 13, 2019, the argumentation and invocation of a prior objective, subjective, and sanctioning typicality, which would have classified and determined as harm to the Duty of Probity, the conduct of a public official leaving the country, or their home, or a given place or geographic area, during a legal strike, conduct also deserving of dismissal without employer liability. That is, the exercise of objective, subjective, and sanctioning typicality is necessary in the Rule of Law, in such a way that the unrestricted exercise of defense and due process is guaranteed, but this sanctioning typicality must not rest on the creation of principles, with undefined legal concepts, which in turn enable moral, essentialist judgments about legal natures, making impossible the effective application with guarantee of due process, of the disciplinary procedures that public officials face. In any case, although the conduct attributed to the plaintiff, referred to in preceding lines, is understood as not linked to the Principle of Probity, but to labor matters, whose expiration (prescripción) was alleged, it is the analysis that will occupy the following section.\n\nB-) Regarding the alleged expiration of the disciplinary power. Both in the administrative venue and in the judicial venue, the plaintiff has been maintaining that the fault expired (prescribió), on the grounds that more than one month elapsed between the certain knowledge the administration had of the facts and the summons or, rather, the notification of the statement of charges (traslado de cargos), reason for which, according to article 414 of the Labor Code, the fault would have expired; according to its clear content which states: \"Article 414.- Without prejudice to what special provisions establish regarding the expiration period, the rights and actions of employers to justifiably dismiss workers, or to discipline their faults, shall expire (prescribirán) within a term of one month, which shall begin to run from when the cause for separation or sanction arose or, as the case may be, from when the causal facts were known. In the event that the employer must complete a sanctioning procedure, the intention to sanction must be notified to the employee within that period and from that moment, the month shall begin to run anew from the moment when the employer or the competent body, as the case may be, is in a position to resolve, unless the procedure is stalled or stopped due to fault exclusively attributable to the employer, a situation in which expiration is applicable, if the stalling or suspension reaches the coverage of that period\" (see response to statement of charges in administrative file and lawsuit brief). For its part, the State's representation, in support of the MEP's actions, understands that the fault to the Duty of Probity is governed by articles 3, 4, and 44 of the Law Against Corruption and Illicit Enrichment in Public Service (Ley Contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), in harmony with article 71 of the Organic Law of the Office of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República) which states: \"Article 71.-Expiration of disciplinary liability. The administrative liability of the public official for infractions provided for in this Law and in the higher control and oversight system, shall expire in accordance with the following rules: a) In cases where the irregular fact is notorious, the liability shall expire in five years, counted from the occurrence of the fact. b) In cases where the irregular fact is not notorious – understood as that fact which requires an inquiry or an audit study to report its possible irregularity – the liability shall expire in five years, counted from the date on which the report on the inquiry or the respective audit is made known to the head or the official competent to initiate the respective procedure. The expiration shall be interrupted, with continued effects, by the notification to the presumed responsible party of the act agreeing to the initiation of the administrative procedure. When the author of the fault is the head, the period shall begin to run from the date on which they end their service relationship with the entity, company, or respective body. It shall be reputed as a serious fault of the official competent to initiate the sanctioning procedure, not to initiate it in a timely manner or to allow the infractor's liability to expire, without justified cause\"; since the immigration certification was received in the MEP's Disciplinary Management Department on October 24, 2018, that the statement of charges was issued on November 5, 2018, and that it was notified to the plaintiff on December 11, 2018, therefore the corresponding five-year period had not elapsed (See proven fact number 10 regarding resolution 476-2019 of fourteen hours and forty-four minutes on February 13, 2019, which determined, among others, the termination of the plaintiff's employment relationship with the MEP without employer liability, which was a fact not controverted by the parties, see also images 14 to 26 and 163 of the digital judicial file). As can be clearly appreciated, the material object of discord rests on whether article 414 of the Labor Code should be applied, which determines that the disciplinary power over labor faults expires one month after the employer representation has knowledge of the fault, or rather article 71 of the Organic Law of the Office of the Comptroller General of the Republic which determines that said period is five years. Specifically, according to the analysis carried out in the previous section, which understands that the conduct and eventual fault of the plaintiff is governed by labor matters and not by the broad spectrum of conducts that can fit and be considered as harm to the Principle of Probity; this Court considers that the plaintiff is correct in terms of declaring the disciplinary power over the accused facts expired (prescrita), given that it is recorded in proven facts 6 and 7 that on November 5, 2018, the MEP issued the statement of charges for disciplinary case 629-2018 against the plaintiff (that is, at that moment the State had full knowledge that there was sufficient merit and evidence to accuse and demand disciplinary liability); and it was not until December 11, 2018, that the statement of charges from administrative disciplinary file 629-2018 was notified to the plaintiff; that is, the one-month period that the MEP had to carry out the summons and suspend the expiration period was exceeded, in clear failure to observe article 414 of the Labor Code, despite it being of clear knowledge to this Court that the MEP has the human, material, economic, logistical, and IT resources to have carried out the summons in a timely and proper manner; notwithstanding the above, it did not happen that way, and instead the existence of the expiration of the disciplinary power is taken as demonstrated, with factual basis in the documentary evidence that runs in the records and in the administrative file, which nourishes the content of proven facts 6 and 7, which are clear and unequivocal in indicating that more than one month elapsed between the issuance of the statement of charges order and the notification, making it procedurally correct in law, as was well indicated, to declare the fault summoned and described in proven fact 6 expired, consisting, as was well indicated, that from October 5 to October 16, 2018, the plaintiff left the country during the national strike of educators and other public officials that began on September 10, 2018 (see also proven fact number 2), reason for which, it is deemed appropriate to grant claim number 2 which requires this court to declare the nullity and invalidity, for being contrary to law, of Resolution 476-2019, which in effect, based on the grounds given, is declared null in every legal sense, due to the expiration of the fault caused by the MEP's liability and inertia, without prejudice to the remedies that will be discussed in the following section.-\n\nC-) Remedies. 1-) Material. Consistent with what was resolved in the previous section, and upon declaring the nullity of resolution 479-2019, the following material remedy is deemed appropriate and admissible: A-) The reinstatement of the plaintiff to the position she was occupying, under the same conditions she had before the execution of the effects of the dismissal ordered by resolution 479-2019; B-) The duty of the State to pay back pay (salarios caídos) from February 25, 2019, until the effective reinstatement of the plaintiff, an amount that will be determined in a sentence execution proceeding or in the administrative venue, as there are not sufficient elements to determine the economic content of said material remedy in the context that the plaintiff merely indicated an approximate estimate, which was concretely imprecise for the purposes of this resolution. 2-) Non-economic (Extrapatrimonial). Regarding this petitionary extreme, the plaintiff only requests recognition of the sum of CRC ¢2,000,000.00 for subjective moral damages (daño moral subjetivo), however, she does not argue before this Court in factual terms, nor even in minimal semantic terms, what the subjective moral damage consisted of, whether in emotional suffering and with it sensations of frustration, sadness, or anger, or even other types of physical manifestations such as insomnia, loss of appetite, or even the will to live; that is, the plaintiff did not argue or offer useful evidentiary elements that could suggest that said and supposed affectations existed. Now, in the absence of expression of moral damage (in terms of the realms of human anguish), this Court cannot deny that the loss of employment can be understood as a situation that generates tension and multiple worries, reason for which, making a prudential assessment of the facts of the lawsuit and the minimal argumentation of moral damage, the plaintiff is prudentially recognized the sum of CRC ¢50,000 (fifty thousand exact colones with zero céntimos for subjective moral damages).-\n\nD-) Defenses. Based on the preceding grounds, the defense of lack of right is partially granted, solely by virtue of the recognition of subjective moral damages, in a different form than that requested by the plaintiff; considering that by virtue of the nullity declared in this resolution, the plaintiff is entitled to reasons to partially access what was requested in the lawsuit.-\n\nE-) Regarding costs. In accordance with numeral 193 of the Contentious Administrative Procedure Code (Código Procesal Contencioso Administrativo), the procedural and personal costs (costas procesales y personales) constitute a charge imposed on the losing party for the very fact of being so. Dispensation from this condemnation is only viable when there was, in the Court's judgment, sufficient reason to litigate or, when the judgment is issued by virtue of evidence whose existence the opposing party was unaware of. Specifically, as the State is declared the losing party, without sufficient reason to litigate accredited in this proceeding, it is condemned to pay the personal and procedural costs it caused the plaintiff to incur, which will be determined in a subsequent sentence execution proceeding.-\n\nF-) Dissenting vote of Judge Hidalgo Rueda. With the customary respect for my Chamber colleagues, I must state on this occasion that I dissent from the majority vote, given that, in my opinion, the applicable expiration regulation for the plaintiff in the present case, due to the committed fault, is not the general one of the Labor Code, but the special one provided in our legal system, since from the very statement of charges, Mrs. [Nombre62 001] was accused, as was specified in proven fact number 6) of this judgment, that: \"... in your condition as Administrative Assistant, of the School [...], assigned to the Coto Regional Education Directorate, using the National Strike movement that began on September 10, 2018, you left the country without having justification for it, for a motive or reason unrelated to the strike, during the period between October 5 and October 16, 2018, according to Certification issued by the Ministry of Governance and Police, General Directorate of Migration and Immigration (Dirección General de Migración y Extranjería), Migration Management, thereby breaching the duty of probity, good faith, loyalty, and trust that governs the employment relationship with this Ministry\" [emphasis in bold is mine]. For this reason, I estimate that the faults and infractions to the duty of probity, duly summoned, are subject to the 5-year expiration period contained in article 71 of the Organic Law of the Office of the Comptroller General of the Republic No. 7428, making the general monthly period contained in numeral 414 of the Labor Code inapplicable. Consequently, although as was well indicated in this ruling, from the statement of charges order to its notification to the plaintiff, the accrual of the one-month period for the Public Administration to make its disciplinary right effective occurred, it is not said term that is applicable in the species, but rather the one regulated in ordinal 71 of the aforementioned Law No. 7428, that is, the 5-year one. The foregoing, since the fault attributed to the official is evidently linked to the transgression of the duty of probity, given the irregularities detected in her conduct as a public servant, by abandoning her work and leaving the country to vacation, between October 5 and 16, 2018, while the country was undergoing the national strike of educators and other public officials that began on September 10, 2018, as was detailed in proven fact number 2) of this judgment. The foregoing, without having validly processed her vacation, which implied an exploitation and abuse of her employer's trust, as well as disloyalty and lack of probity towards the Public Administration, since regardless of the fact that, as stated in this resolution, she was not an educator but an administrative official, the truth is that, in the opinion of the undersigned, her action was disloyal and abusive, by taking advantage of the strike, leaving the country, and continuing to normally receive her salary without having the deduction made for her vacation days, as corresponded in law, thereby also infringing the ethical duties in the public function, and the only plausible consequence for her conduct was dismissal without employer liability, or rather, due to her interim status, the immediate cessation of her appointment, as indeed happened. Delving into the issue, it cannot be forgotten that, in the exercise of the disciplinary power in the public employment regime, according to the nature of the faults attributed to the servant, such will be the expiration period to apply. Thus, unless there is a legal provision to the contrary, the rule to apply is that of a general nature contained in article 414 of the Labor Code, which establishes that the employer's power to discipline the faults of its workers shall expire within a term of one month, which shall begin to run from when the cause for separation or sanction arose or, as the case may be, from when the causal facts were known. However, it is insisted, in the opinion of the undersigned, the general rule is not applicable, but rather a special one, since it is notorious that the conduct reproached to the plaintiff does not refer to common disciplinary liability, but rather the summoned behaviors relate to presumed infractions to the duty of probity, and this type of fault is subject to the 5-year expiration period contained in article 71 of the Organic Law of the Office of the Comptroller General of the Republic. In the species, I also estimate that the fault committed by the official is among those protected by the General Internal Control Law (Ley General de Control Interno) No. 8292, specifically in ordinal 39, which establishes for what is of interest: \"(...) The head, subordinate titleholders, and other public officials shall incur administrative liability, when they weaken with their actions the internal control system or omit the necessary actions to establish, maintain, perfect, and evaluate it, according to the applicable technical regulations (...)\" [emphasis supplied]. And precisely this same law, in its numeral 43, indicates that the expiration period for investigating infractions to such regulation is that established in canon 71 of the Organic Law of the Office of the Comptroller General of the Republic, which, according to its last reform, is five years. In that way, not only was the expiration period extended in the currently valid rule from two to five years, but also its scope of application, by incorporating public officials in general, insofar as their actions entail infraction of the control and oversight provisions in force, transmuting to a material-objective vision. Even on the subject, the First Chamber of the Supreme Court of Justice, in vote number 623-A-S1-2013 at 10:25 a.m. on May 16, 2013, indicated: \"(...) in relation to the transgression of the control and oversight system or related to the Public Treasury, the 5-year expiration period of the disciplinary power applies. This criterion allows differentiating the one-month expiration applicable in cases of a labor nature, in accordance with what article 603 of the Labor Code provides. That with the reform that article 71 of the Organic Law of the Office of the Comptroller General of the Republic underwent, the valuation criterion was varied, to determine the applicable expiration period, in that it changes from a subjective regime to an objective one. That is, it is no longer necessary to perform the exercise of assessing whether the servant belongs to the Public Treasury (subjective aspect). Since it is sufficient to determine the transgression of the control and oversight system of the Public Treasury, which responds to an objective material criterion (...)\" [the bold text is mine].\n\nBased on the foregoing, this judge dismisses the argument that the statute of limitations on disciplinary authority has run in this case, given that the record shows that from the time the plaintiff returned to the country until the Administration notified the disciplinary proceeding against her, a period of even close to five years did not elapse, but rather only a few months. Under the provisions of numeral 71 of Ley N° 7428, as well as Articles 39 and 43 of Ley N° 8292, the five-year period regulated by the special law has not even elapsed as of the date of issuance of this ruling. Now, considering that the plaintiff did not present substantial legal arguments nor did she deny the facts imputed to her, limiting herself solely to alleging the statute of limitations on the exercise of sanctioning power, and that the Administration has deemed the fault proven, the appropriate course is to uphold the actions taken by the authorities of the Ministry of Education. This is because I find what was done and resolved to be in accordance with the law and the merits of the case, as the act terminating the official's interim appointment contains no defect of nullity. For this reason, as the Administration stated: \"(...) having proven the fault, the violation of the principle of the best interests of the minor, the abuse and misuse of the defendant's right to strike, and with them the violation of the duties of probity, good faith, loyalty, and trust towards her employer being clear, this Office considers that based on Articles 43, 57 subsections a), b), c), e) and 1), 58 subsection g) and 60 of the Civil Service Statute (Estatuto del Servicio Civil), 50 subsections b) and d) of the Regulation to the Civil Service Statute (Reglamento del Estatuto del Servicio Civil), 9 subsection e), 11 subsection b), 13 subsections 1), 2) and 3) and 15 subsection c) of the Teaching Career Regulation (Reglamento de la Carrera Docente), 42 subsections a), c), q) of the Autonomous Service Regulation of the Ministry of Public Education (Reglamento Autónomo de Servicios del Ministerio de Educación Pública), 3, 4 and 44 of the Law against Corruption and Illicit Enrichment in Public Service (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), in harmony with Article 71 of the Organic Law of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República), all in accordance with Articles 19, 71 subsections b) and d) and 81 subsections a) and 1) of the Labor Code (Código de Trabajo); the proper course is Nombre6052 from all her positions in this Ministry, the employee [Nombre62 001], whose details are recorded in the case file (...)\" [the bolding has been added]. In conclusion, for this judge, the appropriate legal course is to reject the plea of prescription outlined by the plaintiff, as the one-month period established in the general law is not applicable, but rather the five-year period contained in the special law, as set forth above, which leads to the rejection of this point. In turn, the requested reinstatement and the claimed pecuniary damages would also not be appropriate, not only because it is an ancillary claim to the main one which has been rejected, but also because it was evidenced in the record that the employee only held an interim, that is, precarious, position, and therefore did not enjoy the job stability of permanently appointed officials, but only what has been called improper or relative stability. As a corollary to the foregoing, in the opinion of the undersigned, the lawsuit must be dismissed in its entirety, with costs imposed on the plaintiff.\n\nPOR TANTO\n\nBased on the facts, evidence, legal basis, and claim, by majority opinion, the operative part resolves: 1-) The exception for lack of right is partially upheld; 2-) The lawsuit filed by [Nombre62 001] ID number [CED116947 ] against the State is partially upheld, understood to be denied in what is not expressly granted; 3-) The nullity of the final act contained in resolution 476-2019 of fourteen hours and forty-four minutes on February thirteenth, two thousand nineteen, of the Ministry of Public Education is declared; 4-) The State, specifically the Ministry of Public Education, is ordered to reinstate the plaintiff to the position she was occupying; 5-) The State is ordered to pay the lost wages not received by the plaintiff from February 25, 2019, until her effective reinstatement, an amount that will be determined in the administrative process or in a subsequent sentence execution proceeding; 6) The State's obligation to pay the sum of CRC ¢ 50 000 (fifty thousand exact colones with zero céntimos) for subjective moral damages is declared; 7-) The State is condemned as the losing party to pay the personal and procedural costs it caused the plaintiff to incur, the amount of which will be defined in a subsequent sentence execution proceeding. Judge Hidalgo Rueda issues a dissenting vote and dismisses the lawsuit in its entirety, with costs imposed on the plaintiff. Notify the parties at the indicated means.- Nombre89 . Nombre126032 . FRANCISCO HIDALGO RUEDA.\n\n
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