G9Z0IAXVD0S61
LUIS GUILLERMO RIVAS LOAICIGA - MAGISTRADO/A | |\n| |
XIX. In the objection under study, the appellant once again invoked several different hypotheses, but, due to the manner he structured it, they are inseparable. In the first place, as set forth, he invoked the grounds for cassation provided for in subsection 138(c) of the CPCA.\n\nThat is, a violation of substantive norms due to a failure to apply canon 31 subsection 1) ibid, regarding the fact that exhaustion of administrative remedies (agotamiento de la vía administrativa) is optional, not mandatory. In this regard, it is necessary to point out that said norm is not substantive or material; it is procedural. Therefore, its transgression, contrary to what the appellant indicates, would give rise to a ground for cassation (casación) for violation of procedural norms. Specifically, the allegation would be framed within the provisions of subsection 1) point b) of precept 137 ibid. Then, on page 39 of the pleading, despite indicating that he was doing so by way of “Simply as clarification,” the fact is that he questioned the Court’s assertion that the administrative file was not brought to his attention. For this, he invoked the improper valuation of official letter no. RS-0596-2017, signed by the Acting Head of the Recruitment and Selection Section of the Human Resources Management Directorate of the Judicial Branch. This is because, as he indicated, according to said document, only a Social Work professional could review it. Consequently, what is now alleged would give rise to the ground for cassation (casación) for breach of substantive norms provided for in ordinal 138 subsection a) ibid. However, the argument is informal. The appellant did not cite any substantive norm as having been violated, with a clear and precise explanation of how the violation occurred. As has already been indicated, the manifested ambiguity contradicts the technique of cassation (casación), which requires that the grounds for the appeal be expressed clearly and precisely (Article 139 subsection 3) ibid). Notwithstanding the foregoing and, for the sake of greater argument, it is necessary to state the following. The challenger did not object to what was indicated by the Court, in the sense that “It is contradictory and unfounded to reproach that the prior and preparatory reports forming the administrative will were not brought to his attention, and at the moment when one of them is communicated to him together with the final decision, he does not challenge them at that time. Basically, that was the reproach carried out by the Constitutional Chamber to declare the actor’s amparo appeal without merit and to consider that the alleged transgression of due process had not existed. For the Court, this logical-argumentative contradiction cannot lead to a reproach of the administrative conduct aimed at decreeing the invalidity of the questioned administrative conduct. Based on the foregoing, the Court considers that there are no grounds to decree the nullity of this act, for the reasons stated by the actor.” That is, he did not question that he had the possibility to object, in the administrative venue (sede administrativa), to the procedural act communicated to him along with the final act —the “Socio-Labor Study ESLA-UISA-379-17”— in order to achieve its correction. This makes the argument irrelevant for the purpose of overturning the judgment. In this sense, it must be taken into account, as the judges indicated—which was not questioned—that the thesis for requesting the nullity of the final act for violation of the constitutional guarantee of due process was that “if he had been given a hearing regarding the criminal and labor background studies, he could have clarified this aspect and the reports would not have been based on data he considers erroneous.” That possibility, as the Court correctly indicated, was provided to him when, together with the final act, the indicated Socio-Labor Study (preparatory act) was brought to his attention. However, he did not challenge them through administrative channels (vía administrativa). This does not imply that he was forced to exhaust administrative remedies (agotar la vía administrativa); nor that his right to review the final act was extinguished, as the challenger asserted. On the contrary, what it entails is that he cannot invoke a breach of the constitutional guarantee of due process, since the procedural remedies provided by the legal system to request the correction of the administrative action were offered to him and he did not use them, just as the Constitutional Chamber indicated when resolving the amparo appeal that he filed. Consequently, the nullity of resolution RJP-027-2017, “for breaching constitutional norms, by imposing a two-year disqualification sanction to hold positions within the Judicial Branch, without granting due process,” could not succeed. As a corollary, by virtue of the stated reasons, the rejection of the censure under study is required.\n\nXX. Based on the stated reasons, the rejection of the filed appeal is required.\n\nIn accordance with the provisions of article 150 subsection 3) of the CPCA, as this Chamber does not consider that the appellant has sufficient grounds to appeal, the appellant, Verny Gerardo Jiménez Rojas, shall be ordered to pay the costs of the appeal in cassation, which shall be settled in the sentence execution phase, in order to guarantee the right of defense of the executed party, granting them the respective hearing on the settlement presented (articles 41 and 153 of the Constitución Política).\n\nPOR TANTO\n\nThe appeal is declared without merit, with its costs to be borne by the appellant, Verny Gerardo Jiménez Rojas, which shall be settled in the sentence execution stage. mja.\n\n| | |\n|---|---|\n| |
G9Z0IAXVD0S61
LUIS GUILLERMO RIVAS LOAICIGA - MAGISTRADO/A | |\n| |