Costa Rica: Could there be State responsibility for the measures adopted by the Government in the state of national emergency due to the pandemic?

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More than three months have passed since the first positive diagnosis for coronavirus (COVID19) in the country. During this period, the Government of Costa Rica has issued a series of measures with great social and economic impact, aimed at avoiding the contagion of the population due to this virus. These provisions, without a doubt, have produced a change in the way we live and relate as a society, the most profound being the confinement and the closure or serious affectation of productive and business activities, many of which will not recover.

Through the issuance of Executive Decree No. 42227-MP-S dated March 16, 2020, the Costa Rican Government declared a state of national emergency, a situation that authorizes it to apply an exception regime, and empowers it to dispose and assign resources in emergency actions with greater flexibility, as well as in the processing of government procurement procedures, necessary to attend to it.

On the other hand, the State has the possibility that, if it deems it necessary, provide for the temporary limitation and/or restriction of rights and freedoms, such as freedom of transit, freedom of commerce, freedom of association, freedom of worship, among others.

In Costa Rica, the authorities have made a significant effort to prevent the loss of human life by COVID-19. However, those who have suffered the most from the measures adopted have undoubtedly been the national economy, the productive sector, and the business sector.

As an example of a determining measure to the detriment of the export sector in Central America, we have Executive Decrees No. 42351-H and 42350-MGP-S. On May 16, 2020, these decrees had the impact of limiting intraregional trade by restricting foreign carriers with merchandise from entering the country by land and subjecting them to rigorous sanitary surveillance and control measures.

The transport sector and the governments of the Central American countries expressed their disagreement with the measures adopted, and as a consequence of the above, Nicaragua, our neighbor on the Northern Border, ordered the closure of the Peñas Blancas border. Other measures attempted to mitigate the effects of this entry restriction but created obstacles in the logistics operation of the carriers, which also implied intraregional trade to suffer.

It is clear from the aforementioned regulations that the carriers, importers, and exporters of our country have been affected in their commercial activity due to the measures adopted by the Costa Rican government. This situation could lead these sectors to consider and analyze an eventual State responsibility, and claim compensation for the damages and losses suffered.

With respect to this last point, it is important to mention that, according to our regulations, the Administration will be responsible for all the damages caused by its normal or abnormal, legal or illegal operation.

However, it is exonerated in the case of force majeure. The norm is clear, the collection of damages is not acceptable when these are generated as a result of an event caused by nature - force majeure -, the classic examples being floods, earthquakes, hurricanes, among others, and this sort of events may now include the COVID-19 pandemic as a cause of force majeure.

But the truth is that, in the face of this pandemic, the State is not exempt from an analysis of the measures it adopted.

Were the aforementioned measures adopted by the State suitable to achieve a balance between health security and logistical security?

What happens if the State did not act diligently? Or what happens when the measure adopted was not reasonable or suitable?

From the foregoing, it is clear the importance of analyzing the conduct displayed by the State, and identifying what damages could have been avoided or diminished, according to the type of measure adopted, to determine whether an eventual claim for State responsibility is appropriate.

We must not omit that the Constitutional Chamber of the Supreme Court has previously ruled, indicating that public authorities have a qualified duty to carry out an examination of all the options available to them and to assess the need, suitability, and proportionality of the measure. This is equally necessaryfor a state of national emergency.

At the start of the pandemic, the Government of Costa Rica and its health authorities did not know what they were facing. However, three months later and with each passing day, these authorities obtain more information and knowledge of the pandemic, allowing them to make better decisions about the appropriate measures to be taken.

Therefore, the need to check the reasonableness and proportionality of these measures should not be lost sight of. We must be vigilant to ensure that the State fulfills its duty to analyze suitability to continue adopting the corresponding legal measures.

Dentons Muñoz remains attentive to changes in this matter and its implementation by the competent authorities.

For assistance and information on the implications of these regulations, as well as to obtain advice on claims of State responsibility, do not hesitate to contact our experts from the Department of Public Law at your convenience.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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