Court observes that in conformity with Article 11 of the Law of Constitutional Jurisdiction of
Costa Rica, judgments, decisions or rulings of the Constitutional Chamber cannot be
appealed. 37 In addition, in Costa Rica the control of constitutionality is concentrated, 38 so
that this Chamber hears all applications for amparo filed in the country.
27.
Based on the foregoing, the Court considers that filing an application for amparo was
not appropriate to remedy the situation of the presumed victims, because the highest court
in the constitutional jurisdiction had issued its final decision with regard to the main legal
problems that had to be resolved in this case concerning the scope of the protection of
prenatal life (infra para. 162). Since the Constitutional Chamber hears all applications for
amparo filed in Costa Rica, if the victims had filed an application for amparo, this same
Chamber would have had to decide it. Furthermore, the presumed victims sought to receive
the IVF treatment under the regulation contained in the Executive Decree. In view of the
declaration of the unconstitutionality of the decree as a whole, the possibility of obtaining
access to IVF under the conditions established by the Constitutional Chamber was
substantially different from the interests and claims of the presumed victims. Consequently,
in the specific circumstances of this case, the Court considers it unreasonable to require the
presumed victims to continue exhausting applications for amparo if the highest judicial
instance on constitutional matters had already ruled on the specific aspects contested by
the presumed victims. Thus, the function of this remedy of domestic law was not
appropriate to protect the legal situation harmed and, consequently, could not be
considered a domestic remedy that had to be exhausted. 39
28.
Based on the foregoing, the Court rejects the preliminary objection filed by the
State.
B)
Time-barred petition filed by Karen Espinoza and Héctor Jiménez Acuña
29.
The State argued that the Inter-American Commission had indicated that the petition
filed by Karen Espinoza and Héctor Jiménez was “time-barred, because it had been
submitted outside the six-month period established by Article 46(1)(b) of the American
Convention.” It indicated that these presumed victims “cannot be included in the petition of
January 19, 2001, given that, at that time, they were unaware of their condition” of
infertility, because Ms. Espinoza found out about her infertility in July 2002. It argued that
“if it is considered that the brief of October 2, 2003, introduces for the first time” the
complaint by these presumed victims, “it is clear that, from the time that she learned of her
condition – July 2002 – to October 2003, considerably more than six months elapsed,”
which is the term established by the Convention to file a complaint. It added that “the
problem with this petition was the Commission’s delay in analyzing the admissibility of the
request presented, a process that lasted approximately three years (from January 2001 to
March 2004); this is why the petitioners were included who, in its own words, could not
have been included in the original petition because they had not even been declared infertile
37
Law of the Constitutional Jurisdiction, Law No. 7135 of October 11, 1989. Article 4 of this law establishes
that “the constitutional jurisdiction is exercised by the Constitutional Chamber of the Supreme Court of Justice.”
The second section of article 11 establishes that “There shall be no remedy against the judgments, decisions or
rulings of the constitutional jurisdiction.” Cf. File of the annexes to the report on merits, volume I, annex 1, folios
42 and 44.
38
Article 2 of the Law of the Constitutional Jurisdiction (Law 7135 of October 11, 1989) establishes a
concentrated constitutional control exercised by the Constitutional Chamber of the Supreme Court of Justice,
making it the only body with competence to decide on the remedy of amparo and the constitutionality of laws of
any nature.
39
Similarly, Cf. Case of Herrera Ulloa v. Costa Rica. Preliminary objections, merits, reparations and costs.
Judgment of July 2, 2004. Series C No. 107, para. 85.