COSTA RICA'S JUDICIARY LACKS EXPERIENCE;

UNCLAS SAN JOSE 000625

SIPDIS

SENSITIVE SIPDIS

(C O R R E C T E D COPY - ADDING SENSITIVE CAPTION)

DEPT FOR WHA/CEN; USAID FOR LAC
DEPT PASS TO USTR FOR AMALITO
E.O. 12958: N/A
TAGS: PGOV ETRD KIPR KJUS PINR CS
SUBJECT: COSTA RICA'S JUDICIARY LACKS EXPERIENCE;
ACTIVIST SUPREME COURT COMPLICATES CAFTA-DR



1. (U) SUMMARY. Judges in Costa Rica have an average age of 36 and
lack experience, according to one Supreme Court Magistrate. The
magistrate recommends increasing contact with U.S. judges and court
administrators to share best practices. The explosion of
constitutional challenges since the creation of a special
constitutional chamber of the Supreme Court in 1988 has complicated
the political process, and is the cause of the current judicial
quagmire over ratification of CAFTA-DR. END SUMMARY.

A COURT OF MANY CHAMBERS
--------------

2. (U) Econoff spoke with Costa Rican Supreme Court Magistrate Luis
Rivas Loaiciga and his letrado (lawyer who drafts decisions) Juan
Chaves Villalobos at a recent dinner at the Villalobos home. The
magistrate and his letrado are assigned to Sala I of the Supreme
Court which has jurisdiction over all public law, administrative
law, commercial law, civil law and public concessions. Magistrate
Rivas is just completing his first eight-year term on the Supreme
Court and told Econoff he will soon apply to the National Assembly
(Asamblea) to be reappointed to a second eight-year term. Unless
two-thirds of the Asamblea votes to oppose him he will automatically
be reappointed.


3. (U) Costa Rica's Supreme Court is divided into four chambers or
"Salas". Sala II has jurisdiction over family and labor matters,
Sala III has jurisdiction over criminal matters, and Sala IV is the
constitutional chamber which also has broad review authority over
legislative acts, procedures and rules. Salas I, II, and III each
have five magistrates with two letrados per magistrate. Sala IV,
created by constitutional amendment in l988 has seven magistrates
who each have three letrados.

THE COURT AND CAFTA
--------------

4. (U) A 1998 study titled "Opening Pandora's Box: the Unintended
Political Consequences of Costa Rican Legal Reform"
http://darkwing.uoregon.edu/~caguirre/wilsonp r.html describes the
explosion of constitutional challenges since creation of Sala IV and
the effect it has had on the political life of the country. In the
50 years prior to creation of Sala IV, approximately 350
constitutional challenges were brought to the Supreme Court. Since
creation of Sala IV, approximately 350 challenges have been brought
each year. Multiple constitutional challenges have been the bane of
the CAFTA-DR ratification and implementation process, with Sala IV
activism taking on decidedly political overtones. The chamber has
authority to rule on legislative procedure and has done so often,
greatly complicating ratification of the Agreement.


5. (SBU) According to Rivas, the recent report issued by the
technical arm of the Asamblea asserting that 38 votes are required
to ratify CAFTA-DR was gratuitous and political. He described the
report's author as a "leftist who at one time belonged to a
communist party in Costa Rica". Rivas maintained there was no
reason for a new advisory since in 2006 the same office under a
different director stated the Agreement required only a simple
majority of 29 votes to be approved. He stated that Asamblea
President Pacheco has the power to ignore the latest advisory, but
he added that Sala IV would make the ultimate decision on the number
of votes required for ratification.


6. (SBU) COMMENT: Pacheco, President Arias and other senior GOCR
officials and legislators continue to believe that 38 votes (a
two-thirds majority) is politically necessary to pass CAFTA, even if
29 votes (a simple majority) is technically sufficient. Ratifying
CAFTA by a two-thirds majority would also give opponents one less
argument to use in the required review of the agreement by the Sala
IV. END COMMENT.

NEED FOR EXPERIENCE, AND TRAINING
--------------

7. (U) Magistrate Rivas told Econoff that the biggest problem with
Costa Rica's judicial system is the lack of experience and need for
training. Costa Rica's judicial system has approximately 800
judges. Their average age is 36. In Costa Rica's civil law system,
judges have little or no experience practicing law prior to becoming
part of the judiciary. Due to the early retirement age of 55, Costa
Rica's judges retire soon after gaining valuable experience,
according to Rivas. The magistrate stated that the Costa Rican
judiciary could benefit from more contact with U.S. judges and court
administrators to learn more about best practices Costa Rica might
adopt. Magistrate Rivas also mentioned that he would like to work
closely with the Embassy.

NEED TO DO MORE ON IPR
--------------

8. (U) Intellectual Property Rights falls within the jurisdiction of
Sala I. Costa Rica is currently on USTR's Intellectual Property
Rights (IPR) enforcement Watch List and IPR is one of the most


difficult areas involved in implementing CAFTA. Post recently sent
the magistrate and his letrado to USPTO-sponsored training and since
then the letrado has taken a very active interest in IPR issues.
Villalobos returned from training and told Econoff he now
understands that Costa Rica is not doing enough to meet its
obligations, and that he is working on convincing colleagues to do
more. He observed that, in particular, sentences need to be
strengthened to act as a deterrent. Villalobos is also pursuing a
master's degree in IPR through a distance learning program.
Magistrate Rivas stated that Villalobos has become the court's
expert on IPR matters.

LANGDALE