CONSTITUTIONAL LAW
In our team we know that in Costa Rica and throughout the world; it is an incontestable truth that the law – as a study of the legal system – is a discipline in constant formation, because the legal system is modified by virtue of social, economic and criminal changes, among others. Today the activity of criminal organizations, with great capacities for violence and corrupt public officials, translates into a real crisis for the basic principles of the rule of law collected by the political constitution, as citizenship guarantees designed to protect the accused in the face of the power of the official entities, they have been denatured and placed at the service of genocide and capos of organized crime. I am radically opposed to “de facto” solutions, because with this, democracy is lost as a vehicle for individual freedom. But I do not ignore the need to update, both from within the States and international forums, the constitutional regulations to make effective criminal prosecution without diminishing the fundamental rights of citizens.
Before the new forms, the conception of constitutional guarantee has changed in some cases: For example, it is evident the disappearance of the res judicata in criminal matters, against crimes under the jurisdiction of the International Criminal Court, since an acquittal sentence is issued by the national courts, the International Criminal Prosecutor’s Office must intervene to open the proceedings before said court. We are witnessing the breaking of paradigms, as soon as the international community has assumed the knowledge of causes, initially of the competence of the internal state courts, to replace in its place the justice that was not applied. Intervention in internal matters of the States, ignorance of the acquittal coming in the character of res judicata by the national courts, questioning the sovereignty and free self-determination of each country, and, to a certain extent, the presumption of innocence because the International Criminal Prosecutor intervenes before an acquittal that considers unfair. The fall of the res judicata drag this list of guarantees.
Therefore it is more than appropriate and convenient to turn a blind eye to the fundamental norm, since criminal law and criminal procedural law are applied constitutional law. Suffice it to think that the penalty, imprisonment or fine, is the individualized suspension of a constitutional guarantee: freedom or property. But during the course of the criminal process, it is normal to find judicial resolutions that suspend constitutional guarantees, as is the case of the search, whose effect is the temporary loss of the inviolability of the domicile and the right to privacy; the telephone intervention, which suspends the guarantee of the inviolability of communications; etc.
- RESOURCE OF AMPARO: it is summary, part of constitutional parameters that are the political constitution, fundamental rights in treaties, principles, previous vows and watch over all rights except freedom and freedom of transit. It can not be based on laws or regulations since what is alleged are issues of constitutionality and not of legality. One invokes the right and it is up to the administration to prove otherwise. It can occur in a consummated violation, continuous violation or threat of violation, it may have been 8 years that as long as the violation persists it can be filed.
- RESOURCE OF AMPARO AGAINST PARTICULARS: 1. needs a power relationship. Ex: against the u, an employer, xq there is a relationship of power; if it violates fundamental rights 2- Against private persons in the exercise of public powers (eg street administrators in Puntarenas), 3- It is required that ordinary procedural channels be late to guarantee a right. It is directed against the alleged perpetrator, if it is against a legal person it is against the representative, the company against apparent person or individual responsible.
- HABEAS CORPUS: is the forerunner in the protection of fundamental rights, means “has body” and comes from the obligation to present the detainee, appears from the time of the Romans, where in the bets the loser was earned a slave, someone he looked for it and the high commands went to the house where it was supposed to be and forced to exhibit the slave and thus knew where the person was. In a summary constitutional process, where judicial authorities exercise the protection of the right to freedom and personal integrity, as well as the freedom of transit. t is a double right, it is fundamental: it is fundamental for judicial protection against privations and procedural to exercise summary proceedings to protect them. Characteristics: sumariedad, celeridad, minimum contradictory, vicarious action, illegitimacy of detention.
- TYPOLOGY: evolution over time of resources, there are other ways to violate rights but there are also other forms of habeas.
- HABEAS MAIN OR REPAIRER: Article 37, is the traditional, there must be proven evidence, or judicial or administrative mandate.
- HABEAS RESTRICTED: abusive surveillance or restriction to different areas. Like the people who make him fixed, a type of police harassment, there is a disturbance to individual freedom they do not stop him but they disturb his freedom.
- PREVENTIVE HABEAS: here are possible threats of restriction, there is a possibility that it will happen, there are certain evidences, manifestations of the police, every day they confiscate it and say “you are going to fall, we are going to stop you”, that is It is preventive that something will happen. It aims to avoid the realization of restrictions or illegal detentions. Preventive of something that can happen.
- CORRECTIVE HABEAS: threat or injurious act of the fundamental right to life, physical and psychological integrity or health of the inmates; legitimate detention, but because of that detention is at risk his life as a detained policeman and that this in a prison, or a criminal judge in a prison, will run your life risk. To protect physical freedom, gangs, do not mix indicated with sentenced When there is certainty there is a duty to compensate, but for doubt there is no duty to compensate, unless it has suffered abuse within the prison in pretrial detention, and is brought in the litigation in civil hacienda process, to claim damages , demonstrating the damage and the causal link. Material damage is quantified either by expertise, physical damage: loss of organic capacity and can be quantified, objective moral damage: impact on my image, is tested with publications, witnesses, what was said. Subjective moral damage: only with circumstantial evidence, witnesses, as it is pain, anguish, suffering. And the causal link must be proven.
- INNOVATIVE HABEAS: when the threat has ceased, it is requested that the same behavior not be repeated
- CONSTITUTIONAL CONSULTATION: may be optional or mandatory. Another mechanism to determine that the rules are consistent with the constitution.
- PRECEPTIVE: mandatory. It can be done by active subjects: judicial consultations, other instances, and legislative ones. He is asked if a certain bill is or is not contrary to the political constitution. When the assembly sees constitutional reform projects, reforms to the law of constitutional jurisdiction, or approval of international conventions or treaties, the Assembly is obliged to consult the room. The consultation is made after the first debate, in the first legislature and before the final one, before the second one.
- OPTIONAL: it is for the approval of laws or reforms to the assembly regulations, made by no less than 10 deputies. The consultation to the room is not binding for the Assembly or for herself, the Chamber can reject and then someone files an action of unconstitutionality, and the Chamber can reject it, arguing that it is better if it agrees with the assembly. They can also consult the Court, the TSE and the comptroller's office, when there are projects that they consider may affect their powers; as well as the defense of the inhabitants when rights are injured; You must make a reasoned writing substantiating the query. Salt can be consulted on 3 articles, but the room can also respond on more articles, beyond what was consulted. It is not binding on the deputies, only if the chamber says that the legislative procedure is contrary to the constitution, then it would be binding on the disputed parties.
