Supreme Court of Justice, Constitutional Chamber, Hernán Oconitrillo Calvo v. the Municipality of San José, 23 April 1999, Decision No. 1999-02971
Political Constitution of the Republic of Costa Rica
Article 7, paragraph 1
Public treaties, international agreements and concordats duly approved by the Legislative Assembly shall have a higher authority than the laws upon their enactment or from the day that they designate.
Costa Rica
Occupational safety and health
Use of international law as a guide for interpreting domestic law
Ratified treaties;1 Non ratified treaty;2 Instruments not subject to ratification3
Violation of the right to protection of health/ Lack of respect for the recommendations of the Ministry of Health and Labour/ Use of international law as a guide for interpreting domestic law
A worker instituted amparo proceedings (recurso de amparo) because of the violation of his right to the protection of health, because the Municipality of San José had not abided by the recommendations of the Ministry of Health and the Ministry of Labour concerning the unhealthy conditions of workplaces where the officials carry out their work, the reason for which the workers suffered serious illnesses.
In order to determine whether the amparo should be granted, the Supreme Court pointed out the general recognition of the right to protection of health in the National Constitution.4 However, it was confirmed that there was no law that dealt with the protection of health at the workplace. As a result, the Court interpreted the principle consecrated in the National Constitution in light of regional international instruments and ILO Convention No. 1555 and ILO Recommendation No. 97.6 Those instruments contain provisions that require employers to guarantee a safe and healthy work environment for all workers.
The Court decided as follows:
“In virtue of the programmatic character of the constitutional norm cited, it is necessary to develop its contents jurisprudentially through casuistic analysis in order to determine which actions or omissions prejudice the freedom, dignity, stability and adequate remuneration that are defined as basic elements of the right to work.”
The Court added:
“As to the nature of the amparo before us, it should be pointed out that, quite clearly, the protection of the health of workers is indispensable to guaranteeing respect for their dignity. From a harmonious interpretation of Articles 21 and 56 of the Constitution, Articles 1, 11 and 14 of the American Declaration of the Rights and Duties of Man, Article 4 of the American Convention on Human Rights and Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, the Court concludes that a worker has the right to carry out his functions in an appropriate environment, whose conditions guarantee the protection of his right to health. In that regard, the Court took into consideration Article 16 of International Labour Organization Convention No. 155.”
On the other hand, the Court made reference to ILO Recommendation No. 97 on Protection of Workers’ Health.7
Given the absence of a domestic law regulating the protection of health at the workplace, the Supreme Court of Costa Rica interpreted the corresponding provision of the Constitution in light of international instruments, primarily ILO Convention No. 155 and ILO Recommendation No. 97, to declare the violation of the right to a healthful work environment by the Municipality.
1 American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“San Salvador Protocol”), 1988.
2 ILO Convention on Occupational Safety and Health, 1981 (No. 155).
3 American Declaration of the Rights and Duties of Man, 1948; ILO Recommendation on Protection of Workers’ Health, 1953 (No. 97).
4 Article 56 of the Constitution of Costa Rica: “Work is a right of the individual and an obligation of society. The Government shall ensure that all have an honest and useful occupation, duly remunerated and prevent that because of that conditions are created that in any way degrade the freedom or dignity of man or degrade his work to the condition of simple merchandise. The Government guarantees the right of free selection of work.”
5 Article 16(1) of Convention No. 155: “Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.”
6 Paragraph 1 of Recommendation No. 97: “National laws or regulations should provide for methods of preventing, reducing or eliminating risks to health in places of employment, including methods which may be applied, as necessary and appropriate, in connection with special risks of injury to health. (…)”
7 The Court pointed out that the Recommendation establishes technical measures of protection against the risks that threaten workers’ health.
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