applicable, have the opportunity to resolve the matter before it may be heard by an international
body.
51.
As for the exhaustion of domestic remedies, the petitioner maintains that such
remedies were exhausted under Article 46.1.a of the American Convention and therefore none
of the alleged victims pursued a remedy at the domestic level. He states that as a result of the
Constitutional Chamber’s decision, in vitro fertilization in Costa Rica was effectively prohibited,
and therefore no remedy could be pursued, under Article 11.2 of Costa Rica’s Constitutional
Jurisdiction Act, which provides that judgments, decrees, and provisions of the constitutional
court cannot be appealed.
52.
The State, for its part, maintains that the petitioner did not exhaust domestic
remedies, citing in support of this argument the fact that Ms. Ileana Henchoz Bolaños, victim in
case 12,361 before the IACHR, instituted a proceeding for decision against the Costa Rican
Health Fund before the Superior Tribunal of Contentious Civil Treasury Matters, which was
resolved in favor of the claimant in the first instance. Consequently, the State alleges that at the
time the petitions were presented to the IACHR there existed domestic remedies that had not
been exhausted.
53.
In order to ascertain compliance with the requirement that domestic remedies be
exhausted, the IACHR must identify the appropriate remedy according to each specific case, i.e.,
the remedy that could correct the violation of law.
54.
The matter in dispute in this case is the judgment issued by the Constitutional
Chamber on March 15, 2000, which declared unconstitutional Presidential Decree 24029-S of
February 3, 1995, which regulated in vitro fertilization in Costa Rica--that is, a final, binding
decision of the highest judicial body of Costa Rica.
55.
The Commission observes that Article 11 of the Constitutional Jurisdiction Act
expressly states that “there shall be no appeal of judgments, decrees, or provisions issued under
constitutional jurisdiction.” Consequently, under that article, any remedy attempted in respect
of a judgment issued by that jurisdictional body would have been rejected. In addition, the
IACHR observes that, according to the petition, the alleged victims did not know in 2000 that in
vitro fertilization would be their only option for biological procreation. Consequently, they had
no need to sue for their interests in response to the Constitutional Chamber’s ruling. Because
the matter in dispute was decided definitively in 2000, at the time that the alleged victims were
affected by the consequences of that judgment they no longer had appropriate remedies
available for pursuing their individual interests.
56.
Moreover, the IACHR notes that Ileana Henchoz Bolaños (alleged victim in case
12.361) attempted a constitutional challenge and a proceeding for decision. As for the
constitutional challenge to the jurisprudence of the Constitutional Chamber, that chamber, in a
ruling of June 11, 2008, rejected that remedy outright.
57.
As for the proceeding for decision attempted, cited both by the petitioner and by
the State, the Commission finds that such proceeding was not an appropriate remedy for the
alleged victims. The proceeding for decision was attempted by Ileana Henchoz against the Costa
Rican Health Fund, seeking to compel the Fund to provide her with a medical procedure that,
because of the decision issued by the Constitutional Chamber of Costa Rica, had been prohibited
in Costa Rica since 2000. Although the remedy was resolved in favor of the claimant in the first
instance, on appeal the magistrates of the First Chamber of the Supreme Court of Justice
reversed that ruling and declared the case groundless. In addition, the State has not shown how
this proceeding for decision, which is not of a constitutional nature, would have been effective
in resolving the claim. In that regard, both parties affirm that the matter in dispute has been
addressed as a constitutional question and, therefore, only the legal question raised at the
constitutional level need be addressed. As already explained, Costa Rican law expressly provides
that there shall be no appeal of judgments by the constitutional court.
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