NUEVOS PROBLEMAS Y VIEJOS DESAFÍOS DE LA EJECUCIÓN PENAL EN COSTA RICA: LA ACTUACIÓN DE LOS JUECES A PROPÓSITO DE LAS ÓRDENES PARA ATENDER EL COVID-19 EN LAS CÁRCELES

Abstract

Taking advantage of the decisions made by a group of Costa Rican judges during the Covid-19 global pandemic, this paper analyzes the situation of adults serving a criminal conviction in the country. Going beyond the jurisdictional dispositions that raised certain controversies in some political groups and the media, from a constitutional point of view, they acquire an enormous relevance that deserves to be treated carefully. Contrary to what happens in most legal systems, Costa Rica has not had a law on the enforcement of criminal convictions since the approval of the Penal Code in 1970. It is this way despite the fact that, in 1994, a legislative reform of the criminal code mandated that the execution of sentencing would be regulated by law. This was consistent with a constitutional chamber ruling in 1992. In 2015, the constitutional tribunal reiterated that the norm is necessary and ordered the Legislative Assembly to discuss and vote on it. At present, some administrative and judicial functions have been regulated through executive order or by jurisdictional decisions. Some bills focused on criminal convictions have gone through Congress but none have become law. This article addresses the constitutional implications of the absence of a specific law regarding the execution of criminal sentences.  We will also analyze the roles and limits of judges in these matters, using concepts of constitutional law and political science such as neo-constitutionalism or judicial activism. Finally, we will examine the judges´ work during the epidemiological emergency in defending constitutional principles, such as effective judicial protection, human dignity, and the prohibition of cruel, inhuman or degrading treatment or punishment, amongst others.