3
charge and those he worked as an interim worker, must necessarily have been considered. The
petitioners further claim that, though interim workers are granted no special rights when competing
for a position (in cases where comparison is made with individuals that do not have any physical
disability), in the case of persons with disabilities special treatment is required when processing and
making competitive hiring decisions. In particular, they assert that if a person has a disability and
has rendered years of service to the State, their track records and services rendered should be
considered, adopting a decision that is grounded in selection and not merely discretion, so as to
give those persons equal and fair treatment.
11.
Additionally, the petitioners claim that the head the maintenance area of the Finance
Ministry – the alleged victim’s direct boss – in official document AM-044-2003 of June 13, 2003, one
day after the alleged victim was informed of his dismissal, recommended that Luis Fernando
Guevara Díaz not be appointed due to his problems with mental retardation and emotional blockage,
considering him not apt for the position. 6 The petitioners claim that the head of the maintenance
area of the Finance Ministry does not have the professional competence or formal authority to issue
such a recommendation, which goes so far as to contradict the judgment of the National Council for
Special Rehabilitation and Education (CONARE), whom the petitioners claim to be the body that
officially certified Mr. Guevara Díaz as a “miscellaneous worker”. The petitioners claim that the
foregoing demonstrates the mistreatment to which the alleged victim was subjected and the
discriminatory act by the employer’s representative, which presupposes a “flagrant violation of his
basic human rights which render the administrative action” of his dismissal to be “absolutely null
and ineffectual.”
12.
The petitioners add that when they took the alleged situation before the domestic
courts through an amparo appeal, the Constitutional Bench of the Supreme Court did not protect
Luis Fernando Guevara Díaz, given that the Court did not set aside the discriminatory act that had
affected the alleged victim and for which he was ultimately dismissed from his job. 7 They hold that
restrictive criteria were applied and not criteria that protects human rights, in consideration of
applicable law and the particular history of the case.
13.
As for the exhaustion of domestic remedies, the petitioners claim that, as indicated
above, on August 5, 2003, Mr. Luis Fernando Guevara Díaz filed an amparo appeal against the
Finance Ministry, which was declared out of order by the Constitutional Bench of the Supreme Court
of the Republic of Costa Rica by resolution dated February 14, 2005. In this regard, the petitioners
claim that the Constitutional Bench in did actually hear the alleged case of discrimination and
rejected the claim that the Finance Ministry had acted in a discriminatory manner, whereby the
petitioners hold that the complaint filed did fall within the jurisdiction of the Constitutional Bench.
They further explain that the Constitutional Bench heard the merits of the discrimination case filed
by the alleged victim, given that when that court deems a matter or case not be of a constitutional
nature or lying outside its jurisdiction, the Court establishes this fact and declares the case
groundless, which the petitioners claim did not occur in this case. In fact, they claim that the appeal
6

Specifically, the petitioners state that the document read as follows: “I also point out that because of his
PROBLEMS WITH MENTAL RETARDATION AND EMOTIONAL BLOCKAGE HE SUFFERS (information provided by his mother)
I CONSIDER THAT HE IS NOT AN APT INDIVIDUAL for the position.”
7

In the amparo appeal, the petitioners filed a supportive document, submitted by the Defender of the Inhabitants
of the Republic of Costa Rica, with the Constitutional Bench of the Supreme Court of Justice, on October 14, 2003. In that
document, the submitting agency requests that the competition for employment conducted by the Finance Ministry and that
injured the rights of the alleged victim be annulled, so as to “restitute the basic violated rights of Mr. Guevara, providing him
with conditions that ensure equal opportunity.” Among the conclusions expressed in that document is this one: that in the
competition to occupy the position, “Mr. Guevara Díaz suffered discrimination because of his disability and because in the
use of discretionary authority to appoint, the Administration injured the principle of equality, given that the reason for
excluding Mr. Guevara is clear, while no reason is given to justify the appointment that was made.

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