11
(iv) given that such “limitations, paired with the circumstance that the legislative
reform does not touch on the structure of criminal procedure, which continues to be
confined to a first instance plus review by a higher court, [the representatives]
conclude that hardly will the Law Extending Criminal Review make Costa Rican
criminal procedure comply with the requirements set out in Article 8(2)(h) of the
Convention pursuant to the terms of the Judgment”. This abstract consideration,
however, “could be corrected in practice if the newly enacted rules were applied
broadly to satisfy the requirements of the international law on human rights.
Otherwise, if a restrictive stance is adopted —as did happen in the past—, the goal of
adjusting procedural roles to the Convention would be thwarted. In such a case, the
Convention would be violated again in future cases submitted to this Court".
Therefore, "the determination [whether the State has complied with its obligation to
adjust its domestic legal system to Article 8(2)(h) of the Convention] will be made by
the domestic courts, interpreting the law in accordance with its purpose and intent
and pursuant to the State's international obligations";
(v) with regard to temporary section II of the Law Extending Review Proceedings
providing that the newly enacted law will become effective as soon as sufficient
economic resources are secured to meet the new task imposed upon the Cassation
Court, it is “inadmissible […] to make the effective protection of an individual right
(i.e., the right to due process under Article 8 of the Convention) conditional upon the
existence or availability of material resources”, inasmuch as “the protection of the
rights enshrined in the Convention may not be subordinated to the availability of
economic resources”. As long as such protection continues to be conditioned upon
material resources, “the State [shall] not have fully satisfied this item of the
Judgment”, and
(vi) the statistical data provided by the State to show the behavior of the courts after
the Law Extending Review Proceedings is “partial and limited" and provides no
grounds to conclude that the Judgment is being complied with. Pursuant to the
analysis of the annual reports of the Planning and Statistics Department of the
Judiciary, changes have not been substantial in practice. Court statistics clearly point
at confirming the perception that “not only legislative reform is insufficient, but also
there have been no major changes in practice”. The representatives further stated
that the statistical analyses “must be supplemented with qualitative analysis,
scrutinizing past judgments to check whether there was a effectively [...] a full and
comprehensive review of the court rulings and whether the moving parties were
allowed to submit new evidence".
22.
That, based on the foregoing, the representatives concluded that the Law Extending
Review Proceedings “constitutes a measure intended to comply with the Judgment […] but
contains formal limitations that do not assure that the higher court [will] carry out a full or
comprehensive analysis of all the issues presented to the lower court, so its effectiveness
will depend on its future application; therefore, the law must still be supervised by the
Court”. Furthermore, the condition contained in temporary section II of the abovementioned law is incompatible with the duties imposed by Articles 1(1) and 8(2)(h) of the
Convention; therefore, “such Law does not constitute per se compliance with the Judgment
[...] and fails to comply operative paragraph No. 5 [thereof]”.