ORGANIZATION OF AMERICAN STATES ELECTORAL EXPERTS … · 2020. 6. 17. · Department of Electoral Cooperation and Observation (DECO) of the Secretariat for Strengthening Democracy

ORGANIZATION OF AMERICAN STATES

ELECTORAL EXPERTS MISSION

MUNICIPAL ELECTIONS

REPUBLIC OF COSTA RICA

FEBRUARY 2, 2020

FINAL REPORT

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CONTENTS

1. BACKGROUND .......................................................................................................................1

2. MUNICIPAL ELECTIONS ...........................................................................................................1

2.1 Pre-electoral phase ............................................................................................................. 1

2.2 Election day ......................................................................................................................... 3

2.3 Post-electoral phase ........................................................................................................... 4

3. FINDINGS AND RECOMMENDATIONS .....................................................................................6

3.1 Campaign finance ............................................................................................................... 6

3.2 Political Participation of Women ........................................................................................ 8

3.3 Electoral justice ................................................................................................................. 10

3.4 Reelection ......................................................................................................................... 12

3.5 Electoral Organization....................................................................................................... 13

3.6 Election technology .......................................................................................................... 15

4. ACKNOWLEDGMENTS .......................................................................................................... 15

A. ELECTORAL ORGANIZATION.............................................................................................. 16

B. ELECTORAL TECHNOLOGY ................................................................................................. 28

C. CAMPAIGN FINANCING ..................................................................................................... 35

D. POLITICAL PARTICIPATION OF WOMEN............................................................................ 44

E. ELECTORAL JUSTICE .......................................................................................................... 53

ANNEX ............................................................................................................................................. 65

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I. FINAL REPORT TO THE PERMANENT COUNCIL

1. BACKGROUND

On June 4, 2019, the General Secretariat of the Organization of American States received an official invitation from the Supreme Elections Tribunal (TSE) of Costa Rica to deploy an Electoral Observation Mission (EOM/OAS) to observe its municipal elections on February 2, 2020. The Secretary General of the OAS, Luis Almagro, accepted the invitation on June 12, 2019, and instructed the Department of Electoral Cooperation and Observation (DECO) of the Secretariat for Strengthening Democracy (SSD) to make the corresponding preparations and seek external funding for the mission. The Secretary General of the OAS appointed the former National Civil Registrar of Colombia, Juan Carlos Galindo Vácha, as Chief of Mission.

On January 21, 2020, in Washington, D.C., the Permanent Representative of the Republic of Costa Rica to the OAS, Ambassador Monserrat Solano Carboni, and the Secretary General of the Organization of American States (SG/OAS), Luis Almagro, signed the Agreement on Privileges and Immunities of the Electoral Observation Mission enabling it to perform its work with autonomy and independence. On January 29, 2020, the President Magistrate of the Supreme Elections Tribunal (TSE) of Costa Rica, Luis Antonio Sobrado, and the Chief of Mission, Juan Carlos Galindo Vácha, signed an agreement in San José on the procedures for observing the 2020 municipal elections.

The expert mission to Costa Rica was composed of 11 electoral experts from six countries of the region. They arrived in the country on January 25, 2020. The team performed a detailed analysis on issues including: electoral organization, electoral technology, political financing, electoral justice, and the political participation of women. In order to gain an understanding of the preparations for the process and the different perspectives on the municipal elections in the country, the Mission met with political actors, electoral and government authorities, candidates, and members of academia and civil society.

In its efforts to support member states in their willingness to strengthen their democratic institutions, the OAS has observed 13 electoral processes in Costa Rica since 1962, including presidential, legislative, and municipal elections.

This document constitutes the Final Report of the Mission. It supplements the Preliminary Report presented following the municipal elections and provides greater detail on the various issues observed. It also expands on the recommendations formulated to assist Costa Rica in strengthening its electoral processes.

2. MUNICIPAL ELECTIONS

2.1 Pre-electoral phase

The municipal elections that took place on February 2, 2020, were the fifth direct municipal election since the Municipal Code was amended in 1998. In this vote, a total of 6,138 local offices were filled, including mayors, municipal council members, district council presidents, and district council members. A total of 33,873 candidates were registered from 80 political parties (14 national political parties, eight provincial parties, and 58 canton-level parties) and six alliances. A new canton had been created prior to this municipal election, and so for the first time, 82 cantons were electing their local governments.

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The Mission began its deployment on January 25, 2020, when the specialists arrived in San José. Beginning on January 28, the Chief of Mission met with the Elections Tribunal authorities and its directors and technicians; with the president and Foreign Minister of the Republic of Costa Rica; with national, provincial, and canton level political parties; with mayoral candidates; with civil society organizations; and with academics.

During the various meetings the experts held during the pre-electoral stage, it was observed that the Supreme Elections Tribunal (TSE) is highly trusted by political actors and civil society. The Mission was also pleased to confirm that the Tribunal had made progress toward implementing the recommendations made by the OAS during previous elections, reflecting a commitment to improve electoral processes.

The pre-electoral stage went peacefully. The Mission confirmed that the campaigns were positive and that the election’s principal actors conducted themselves at all times with great civility and respect.

One of the elements differentiating this vote from previous ones was the significant increase in the number of parties participating. According to the information received, at the time of the vote, there were 144 organizations registered with the TSE,1 of which 80 participated in this election (21 more than in 2016): 14 national parties, 8 provincial, and 58 canton-level.2

Additionally, academics and electoral authorities said that the increase in the number of parties was because requirements for establishing them are very simple,3 and even though the registration of a political party requires an assembly be held to establish its structure, there is currently no participation threshold that organizations must attain in order to remain registered.4

The Mission met with members of canton level and provincial political parties, who said that the increase in the number of political organizations gave voters more options among which to choose and guaranteed more space for citizens wishing to stand for office. On the other hand, some academics and representatives of traditional parties interviewed by the Mission expressed concern at this new phenomenon. In their understanding, many of the parties registered did not represent real alternatives in terms of their platforms or ideologies, and their proliferation only serves to confuse voters. They also indicated that many of these organizations do not have any internal structure or regular operations and were activated only during elections.

1. Twenty-one parties registered nationally, 23 provincially, 93 at the canton level, and 7 coalitions. Official

website of the Costa Rican TSE. https://www.tse.go.cr/partidos_inscritos.htm 2. Along with these, there were six alliances. 3. The party’s constitution must be notarized.

3 National and political parties must have a minimum of 100

members (50 for canton-level parties) and maintain minimum membership numbers during elections.3

4. In ruling on constitutional challenge 11-001598-0007-CO, the Constitutional Chamber eliminated failure to participate in an election as grounds for cancelling a party’s registration. It was the chamber's understanding that by establishing that failure to participate in elections was grounds for the automatic cancellation of the registration of a political party, the constitutional principles of reasonability and proportionality were damaged, therefore excessively and disproportionately affecting the fundamental right of citizens to form political parties and participate, through them, in elections to choose their leaders.

https://www.tse.go.cr/partidos_inscritos.htm

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The Mission noted, in addition, that one of the main issues of public debate during the process was the reelection of mayors. The last paragraph of Article 14 of the Municipal Code5 allows those holding popularly-elected municipal offices to seek indefinite reelection, which made it possible for mayors in 67 of 82 municipalities to run for reelection. According to the official results, 47 mayors were reelected,6 four of them to a fifth consecutive term and another five to a fourth term.7 The Mission takes note of the submission of a new bill that would limit the indefinite reelection of municipal authorities.8 According to bill’s rationale, it was submitted in response to recommendations made by the EOM-OAS. The Mission welcomes the launch of this debate, as it demonstrates the usefulness of the Electoral Observation Missions in promoting democratic values in the region.

The Mission also took note of a significant number of candidates affected by criminal complaints. According to the information received, a high percentage of the mayors seeking reelection during this election were the subject of ongoing criminal investigations. It was found that, under current law, this was not grounds for denying or canceling their candidacies: for this to happen, the individual had to have been disqualified from participating through a final judicial judgment. It should be noted, however, that if a mayor elect is disqualified by a judicial judgment subsequent to the vote, the individual must be immediately removed from his or her office.9

The majority of mayoral candidates had the opportunity to participate in debates organized by media outlets, authorized by the TSE.10 In issuing their invitations, the media outlets followed the objective criteria recommended by the Tribunal.11 It is the Mission’s view that the effort of the media to promote the exchange of platforms is a positive exercise that strengthens the electoral process and contributes to voters being able to make an informed decision.

2.2 Election day

On election day, the OAS experts observed voting centers in the provinces of San José, Heredia, and Alajuela. The Mission was informed by the electoral authority that, as of 7:00 a.m., all the polling stations in the country were set up and operating. The observers also reported that the polling stations had the materials they needed for the election.

The day of the election unfolded peacefully throughout the country, with electoral authorities and citizens contributing to ensuring a normal environment that enabled voters to exercise their right to vote. With regard to the establishment of polling stations, the Mission found there were few party

5. “All popularly-elected offices at the municipal level provided for under the legal system shall be filled

through a popular vote, with general elections to be held on the first Sunday of February, two years after the national elections in which the individuals holding the Presidency and the Vice Presidency and the members of the Legislative Assembly are selected. They will take possession of their offices on May 1 of the year of their election for a period of four years, and may be reelected.”

6. TSE Documentation Center. Available at: https://www.tse.go.cr/pdf/ifed/alcaldes-reelectos.pdf 7. Provisional results of the February 2, 2020, municipal elections. Supreme Elections Tribunal. Available:

https://www.tse.go.cr/Resultados2020/#/alcaldes 8. Bill – amendment of article 14 of the Municipal Code and its amendments, Law 7794 of April 30, 1998

(Law to Limit Indefinite Reelection of Local Authorities). Case file 21,810. Available: http://www.asamblea.go.cr/Centro_de_informacion/Consultas_SIL/SitePages/ConsultaProyectos.aspx

9. Article 18 Municipal Code. 10. TSE Resolution No 728-E1-2016, II, para. 5. 11. TSE Resolution No. 7801-E1-2017, II, para. 2.

https://www.tse.go.cr/pdf/ifed/alcaldes-reelectos.pdf

https://www.tse.go.cr/Resultados2020/#/alcaldes

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representatives at the polling stations, and—as provided for—the electoral aides were used to staff them. At the polling stations observed, it was found that most of those present were women.

The Mission noted with satisfaction that the TSE used a variety of mechanisms to facilitate the general citizenry's exercise of its right to vote. The Mission congratulates the TSE for developing the “Informed Voter” app, which enabled citizens to locate their polling stations and access the profiles and platforms of the parties and candidates registered, among other election-related information.

Likewise, the Mission observed the implementation of the "voting accessibility" program, designed to protect the right to vote of people deprived of liberty, older adults, people with mental and physical disabilities, and people living in indigenous areas.12 Under this program, 39 polling stations were set up in 12 penitentiaries; 50 polling stations were established in retirement homes; 1 polling station was set up in a Care Center for People with Mental Illnesses in Conflicts; and 97 polling stations were set up in indigenous areas. The Mission welcomes these types of initiatives that are focused on inclusion while also seeking to improve electoral processes.

At the close of voting, the Mission observed a quick counting process, with the presence of monitors from the different political parties. It should be noted that at some polling stations, the staff was not clear on the tasks that they were required to perform during the count.

At 8:15 p.m., the TSE began the formal sitting and declared itself in permanent session. At that time, the webpage and the “Informed Voter” app began operating, so citizens could check the results of the election. As of 9:55 p.m., 82.2% of preliminary results had been transmitted, and by 11:00 p.m., it had reached 91%.

2.3 Post-electoral phase

The Mission observed that the final count began on Tuesday, February 4, at 9:00 a.m. and continued without interruption until all the tally sheets were processed, as stipulated. The final count involved the processing, verification, and certification of 100% of the tally sheets from the 5,755 polling stations established by the Supreme Elections Tribunal (TSE) for the municipal elections. In the case of 1,842 of the polling stations, the votes corresponding to the election of a mayor were subjected to a recount because the tally sheets met one of the legal grounds for doing so.13

According to the results of the final count, the breakdown of mayoralties won by political party at the national and provincial level was as follows:

12. Under this program, 39 polling stations were set up in 12 penitentiaries, housing 10,148 registered voters;

50 polling stations were established in retirement homes, for 2,471 voters; 1 polling station was set up for 129 voters in a Care Center for People with Mental Illnesses in Conflicts; and 97 polling stations were set up in indigenous areas to serve 38,537 voters.

13. 1) polling stations against whose results appeals or suits for nullification are found admissible and this process—in the opinion of the TSE—is necessary for resolution. 2) When a polling station’s results are clearly inconsistent. 3) When the preliminary count is not carried out in the presence of at least three party members or the electoral aide designated by the TSE and representatives of at least two political movements, regardless of whether they are working the polling station or serving as party monitors, which must be noted for the record. 4) For polling stations for which the voter list is lost, not used, or includes observations that merit a recount.

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Table 1: Breakdown of mayoralties by political party at the national level

Political Party Mayoralties at the national level

PLN 43

PUSC 15

PNG 4

PAC 4

PRSC 2

ADC 1

UP 1

Provincial Parties 3

Canton-level Parties 9

Total 82

Source: Supreme Elections Tribunal (TSE)

Table 2: Breakdown of mayoralties by political party at the provincial level

Political Party San José Alajuela Cartago Heredia Guanacaste Puntarenas Limón

PLN 9 9 5 5 4 9 2

PUSC 2 5 - 3 2 1 2

PNG 3 - - - 1 - -

PAC 1 - 1 - 1 1 -

PRSC 1 - - 1 - - -

ADC - - 1 - - - -

UP - - 1 - - -

Provincial Parties

1 - - - - - 2

Canton-level Parties

3 2 - 1 3 - -


Electoral participation in the municipal elections reached 36.3% of registered voters,14 an increase of almost one percentage point over the 2016 municipal elections and 9.4 percentage points over the 2010 election. Although the percentage of participation increased, the abstention rate continues to be a challenge for municipal elections in Costa Rica. It is the Mission's view that every election is an opportunity that citizens must take advantage of to have their voices heard through the vote.

14. This participation figure is according to the data released by the Tribunal with 91% of the polling stations

processed.

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Figure 1: Electoral participation during the last three municipal elections

3. FINDINGS AND RECOMMENDATIONS

With the aim of continuing to strengthen Costa Rica's electoral system, the following is a series of observations and recommendations that could be taken into consideration in future electoral processes. The Mission has followed up on the recommendations made in previous elections and found to its satisfaction that many have been implemented by the Costa Rican authorities.

3.1 Campaign finance

Costa Rica has a mixed political financing model combining public and private sources. The State contributions are provided in the form of a reimbursement subsequent to the vote, based on the number of votes obtained by each group. For these elections, the amount approved for public financing granted to the parties was 9,386,215,110 colones (approximately US$16,593,514).

Expenses incurred between the scheduling of the election through 45 days after the vote can be reimbursed. In order to access these state contributions, political parties must liquidate and submit their reimbursable expenses within 45 working days of the declaration of election results. According to the testimony received, a significant portion of spending corresponds to the purchase of space for electoral advertisements. It should be underscored that the law currently does not provide for mechanisms of indirect financing that would guarantee all parties minimum access to the media.

In addition, the Mission found that, in contrast to the way national elections work, in municipal elections, the State funding is not provided in advance. This situation forces the parties to depend solely on bank loans in the hope of being able to meet the requirements of the law15 in order—through liquidation of expenses—to receive the reimbursement and repay the debt. According to the information received by the Mission, the majority of the parties had difficulty accessing these loans, as, when evaluating their capacity for repayment, banks took into consideration the electoral projections and required collateral, which the parties were often not able to provide.

The issues with financing via reimbursement have been noted repeatedly by the OAS Missions. This way of doing things not only means that smaller parties with less of a track record have problems accessing campaign resources, but in addition, even if a political party obtains a large number of votes

15. Article 99. Electoral code.

72.10% 64.60% 63.70%

27.90% 35.40% 36.30%

0.00%

20.00%

40.00%

60.00%

80.00%

100.00%

2010 2016 2020

Participación

Abstencionismo

Participation

Abstention

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without having spent money during the pre-electoral period, it would not receive a State contribution, as such contributions are only granted in reimbursement of expenses incurred.

As regards private financing, Costa Rican legislation only allows contributions from physical persons. The Electoral Code also establishes that contributions are not allowed to be made directly to candidates, and therefore, donations must be channeled through the parties. Current law sets no cap on campaign contributions or expenditures. Pursuant to information obtained from the TSE’s Political Party Financing Department, contributions made in the form of private contributions for the municipal elections amounted to 174,128,194 colones (approximately US$301,492).

With regard to oversight, the Mission highlights that the TSE has robust tools for fulfilling its control responsibilities. Through the General Electoral Registry Office and its Political Parties Financing Department, the Tribunal has the capacity and the authority to investigate the financial solvency of those who contribute to campaigns, with the ability to pursue procedures to lift bank confidentiality where required.

The Mission also observed that, following the recommendations made by the OAS in previous elections, the Tribunal has made significant efforts toward guaranteeing that the parties report their financial information correctly. It was confirmed that measures of standardized accounting16 have been adopted to harmonize the presentation of information. The Tribunal has also provided ongoing support and training to the parties to ensure that the reporting on both income and expenditures is done correctly, thereby reducing the potential for inconsistencies in the accounts submitted.

Despite the progress made, it is noted that certain opportunities for improvement persist, especially with regard to the expenditures liquidation process. Based on the testimony collected by the Mission, it is noted that although the TSE made a tool available on its webpage for parties to report their expenditures and receive the corresponding reimbursement, the need to present the physical expenditure liquidation documents persists. Because Costa Rica has a generalized culture of electronic invoicing, parties often only have digital receipts and must print them out in order to build files that can be attached to the liquidation of expenditures report. This causes unnecessary delays and greater expenditures on paper, printers, filing cabinets, etc.

While recognizing the strengths in terms of the transparency of the Costa Rican system, the Mission reiterates the need to produce more equitable conditions for the election. It therefore recommends:

- Establishing a form of pre-election public financing to ensure the parties have the resources to begin campaigning, thus reducing dependency on private financing.

- Implementing a free electoral advertising section to guarantee space to all parties to present their platforms. This measure, which has been recommended by previous OAS missions, will not only strengthen the equity of the election but also contribute to improving the financial situation of the political parties, as publicity is one of the main areas of campaign expenditure.

16. Specifically, procedures have been implemented consistent with the IAS and IFRS. The International

Financial Reporting Standards (IFRS) are technical standards adopted by the International Accounting Standards Board – IASB. They are international standards or norms for accounting activity and establish requirements for recognizing, measuring, presenting, and reporting on transactions and economic facts.

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- Implementing a technological tool to facilitate the submission of expenditure and revenue reports that takes advantage of the extensive use of digital invoicing in Costa Rica.

- Set individual limits on the contributions that natural or physical persons can make, as well as limits on party expenditures. These limits must be set with technical studies that use as a baseline the electoral campaign costs index, which takes multiple factors into account, including political advertising in the media, signs, print advertising, campaign expenditures, reference prices, etc.

3.2 Political Participation of Women

Application of parity

Costa Rica has a robust legal framework that has enabled a notable increase in the political participation of women nationally. Article 2 of the Electoral Code, promulgated in 2009, establishes that all candidate lists must be comprised of 50% men and 50% women,17 placed alternatingly. Additionally, in 2016, the Supreme Elections Tribunal (TSE) issued a resolution defining the principle of parity for legislative elections as enshrined in the Code to extend to the heading of the lists (horizontal parity) in at least three of the seven lists presented by a party. In the national elections in 2018, these provisions led the percentage of women elected to the National Assembly to reach a record 45.61%,.

These important steps forward in both the legal framework and the results have run into more obstacles locally. The Mission observed that, through resolution 1724-18-201918 of February 2019, the TSE ruled to postpone until the 2024 elections the application of parity to the top of the lists for multimember bodies: municipal councils, district councils, and district municipal councils. The TSE based its decision on operational issues that the parties faced.19 In that same resolution, the Tribunal found that horizontal parity is not applicable to the election of mayors.

The Mission observed that the TSE resolution and the decision to not apply horizontal parity to single candidate offices was extremely controversial. On March 19, 2019, deputies from the Citizen Action Party (Partido de Acción Ciudadana, PAC) brought suit20—with the National Institute of Women acting as a intervenor—requesting that resolution 1724-18-2019 be declared partially unconstitutional.21 In this same regard, the Office of the Attorney General of the Republic (PGR) has stated publicly that it views the Tribunal’s decision as unconstitutional.22 As of election day, the suits filed before the Constitutional Chamber remained pending resolution.

17. If the number of candidates is odd, the difference between the total men and women cannot be greater

than 1. 18. TSE Resolution 1724-18-2019, February 27, 2019, https://www.tse.go.cr/juris/electorales/1724-E8-2019.html?zoom_highlight=1724%2DE8%2D2019 19. TSE Resolution 1724-18-2019, sections V and “Therefore.” 20 Constitutional Challenge before the Constitutional Chamber, Deputy Nielsen Pérez and other deputies,

regarding TSE Resolution 1724-18-2019, received March 29, 2019. 21 The Mission received information indicating that subsequently, two more constitutional challenges were

filed against the TSE resolution, one by a group of parliamentary women and another by Haydeé Hernández.

22 El Mundo, Costa Rica, PGR da la razón a las diputadas del PAC sobre paridad horizontal en elecciones municipales, October 31, 2019, https://www.elmundo.cr/municipales/pgr-da-la-razon-a-diputadas-del-pac-sobre-paridad-horizontal-en-elecciones-municipales/

https://www.tse.go.cr/juris/electorales/1724-E8-2019.html?zoom_highlight=1724%2DE8%2D2019

https://www.elmundo.cr/municipales/pgr-da-la-razon-a-diputadas-del-pac-sobre-paridad-horizontal-en-elecciones-municipales/


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The Mission notes with concern the effects that the Tribunal’s interpretation has had. According to candidate figures provided by the TSE and the National Institute on Women (INAMU), 692 candidates ran for mayor: 533 were men (77%) and only 159 (23%) were women. In 11 cantons, all the candidates registered were men.

The situation is even more concerning in view of the election results. According to figures from the official count, for the 2020-2024 term, women hold only 8 of the 82 mayor’s offices in the country (9.7%). This is the lowest percentage of women elected to these positions since the 2002 elections.

These numbers clearly indicate that, as applied, current laws do not guarantee the inclusion of women in municipal public offices on equal footing. With the aim of achieving this objective, the Mission recommends:

- Revising current provisions and adopting new measures to enable women to effectively access decision-making offices, both nationally and at the municipal level.

- Strengthen and expand training programs as a platform to provide women interested in running with the tools they need to be successful in politics. Another suggestion is to foster the building of networks of support for woman candidates and leaders.

Political violence against women

In Costa Rica, as in other countries in the region, gender-based political violence is an issue that persists and particularly affects women who participate in politics at the municipal level. Academics, candidates, and representatives of government agencies and civil society organizations whom the Mission interviewed expressed concern at the different forms of discrimination and pressure to which women politicians at the local level have been subjected.23

The Mission took note of one particular form in which this violence manifests itself. As the Electoral Code establishes that it is the mayor who assigns responsibilities to the vice mayor, in many cases, they are relegated to performing administrative tasks, completely restricting their participation in policy decisions.

The Mission also found that the Costa Rican legal framework does not codify gender-based political violence as an offense and provides for no judicial remedies to address it. It was also observed that the channels through which these actions can be reported are not clearly established. According to the information received, the TSE has admitted related complaints through the route of electoral amparo, but these complaints have not been classified as electoral political violence.

With the aim of eliminating discrimination against women in all spaces of political life, the Mission recommends:

- Putting forward a bill on political-electoral violence against women, pursuant to Costa Rica’s obligations under international law to prevent, investigate, punish, and provide reparations for all types of violence and discrimination against women. The process leading to the passage of this bill should be preceded by participatory and inclusive

23. During its visit, the delegation received a report from the United Nations Development Program—

prepared with support from members of civil society and CEFEMINA—documenting the extent and prevalence of structural violence against women in local politics in Costa Rica.

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spaces provided to women who were victims and affected by incidents of political-electoral violence.

- Clearly defining mechanisms for reporting acts of political-electoral violence. Disseminating information on their operation and use to women involved in local politics in Costa Rica.

- Offering the specific and ongoing training programs to women and men involved in local politics on the fundamental importance of preventing and punishing electoral violence.

- Establishing by law the responsibilities and functions of the vice mayor.

3.3 Electoral justice

Distribution of competencies

Pursuant to article 102 of the Political Constitution of Costa Rica, the TSE has the exclusive, obligatory, and exclusionary competence to interpret electoral law and to resolve related legal challenges.24 The Electoral Code also establishes that the Tribunal’s jurisprudence is binding erga omnes25 (for everyone) and that its decisions are not appealable.26

The Constitutional Chamber of the Supreme Court of Justice has found that, as the body in charge of conducting constitutional oversight of laws, it has the authority to review TSE decisions. According to the criteria it established, the Constitutional Chamber has exclusive authority to conduct constitutional review of the TSE judgments that offer interpretations of laws,27 that constitute legal jurisprudence,28 or that derived from advisory opinions.29 In performing this interpretive work, the Constitutional Chamber has annulled—in rulings on constitutional challenges—a number of TSE decisions, both advisory opinions30 and resolutions.31

24. Articles 102, subparagraph 3) of the Constitution; 12, subparagraphs c) and d); and 219 of the Electoral

Code. 25. Article 3 and 221 of the Electoral Code. 26. Article 103 of the Constitution. 27. In aforementioned Resolution 19-004707-0007-CO, the Constitutional Chamber added "It is different

when what is at issue is the interpretation of legal provisions applicable to elections, as in these cases, the jurisprudence established or precedent set could violate Constitutional law, over review of which the Constitutional Chamber has a monopoly, whether through the exclusive and exclusionary competence to annul and expunge a law or declare an omission unconstitutional.”

28. In resolution 16070–2015 of October 14, 2015, the Constitutional Chamber found that the erga omnes link between the TSE’s interpretations and the advisory opinions “cannot be understood to include the Constitutional Chamber, nor the Legislative Assembly, as in both cases—the Assembly in its work as a legislature and the Chamber in its role as reviewer of legislation—require, for the proper exercise of their functions, sufficient authority to revise the legal provisions issued by the Tribunal. Thus, performing a literal reading would deprive the chamber of the competence with which it is endowed by Article 10 of the Constitution, which cannot be understood to be modified by this or any other inferior law."

29. In its resolution admitting case file 19-004707-0007-CO, the Constitutional Chamber concluded: “Today, these are the two elements needed to admit an action brought against a resolution from the electoral jurisdiction: that the jurisprudence is being challenged, that the jurisprudence is established in at least three judgments, or that the jurisprudence has been overturned through advisory opinions.”

30. Judgment casefile 15-005481-0007-CO of October 14, 2015, in which the Constitutional Chamber found as follows: “The action is granted, and therefore, the jurisprudence of the Supreme Elections Tribunal set

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The Mission notes that the jurisprudential line of reasoning taken up by the Chamber leads to a clash of competencies between it and the TSE. It likewise notes that by establishing a route for challenging the Tribunal’s decisions, its role as the exclusive and exclusionary interpreter of electoral law could be weakened.

Means of challenge: deadlines and procedural regulations

Costa Rican law does not set specific deadlines for resolving various types of challenges, with the exception of the writ of nullification of electoral results, in response to which the Tribunal must issue a judgment prior to declaring the results of the election.32As the EOM/OAS observed in 2018, thus far, the lack of deadlines has not been cause for concern as a result of a lack of litigiousness surrounding the processes and the extraordinary quickness with which the Supreme Elections Tribunal resolves the issues brought before it.

The Mission was informed that, from the moment the elections were announced, on October 2, 2019, until February 11, 2020, a total of 211 challenges were filed. As has been typical, the TSE issued judgments very quickly: within an average of 16 days.

As regards the regulation of the procedures that must be followed in handling challenges, the Mission noted some gaps in current legislation. Effectively, there is no list of evidence or rules for assessment thereof. Likewise, there are no rules governing the processing of case files by the magistratures: no deadlines or terms have been set for requirements or admissibility. The law also fails to establish grounds on which challenges would be found inadmissible.

Additionally, it was noted that on certain issues, the Electoral Code refers to other laws, like the Judicial Notifications Act, the Procedural Civil Code, or the Constitutional Jurisdiction Act. The Mission concludes that this statutory scattering could produce confusion among those taking part in the process as to the laws applicable to each procedure.

With the aim of providing absolute clarity on defense remedies, the following is recommended:

- Make progress toward issuing specific procedural rules applicable to challenges by establishing a list of evidence that would be admissible, criteria for assessment thereof,

through petition 3671-E8-2010 and reiterated, with no changes, in other petitions including 4303-E8-2010; 6165-E8-2010; 784-E8-2011, and 3636-E8-2014, which affirms that the correct interpretation of articles 2, 52 subparagraphs ñ) and o), and 148 of the Electoral Code requires the recognition of a lack of an obligation for political parties to apply the parity rule to tops of candidate lists—so-called ‘horizontal parity’—with the aim of achieving equality throughout the lists of candidates up for popular election is hereby annulled on the grounds of unconstitutionality.”

31. Judgment of casefile 17-003086-0007-CO of July 17, 2019, in which it was resolved: “The action is admitted. Consequently, the Supreme Elections Tribunal resolutions number 8455-E9-2016 of 10 am on December 23, 2016; and 860-E9-2017 of 10 am on January 27, 2017, are annulled on being found unconstitutional. Likewise, in view of this finding of unconstitutionality, the process in the framework of which these resolutions were adopted, identified as ‘Request to collect signatures presented by Alex Solís Fallas to hold a citizen-initiative referendum on the bill entitled ‘Law Establishing a Constitutional Assembly’’ is hereby null and void.”

32. With regard to deadlines, the Electoral Observation Mission found during the 2018 general elections that the TSE issues resolutions quickly, in approximately 25 days. However, it recommended considering establishing specific deadlines by law for electoral resolutions.

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rules for processing the case files before the magistratures, and grounds for denying admissibility of each of the remedies.

- Add specific deadlines to the law for resolving the different remedies sought.

3.4 Reelection

The Mission noted that one of the main issues of public debate in the campaign was the indefinite reelection of mayors. A number of political actors stated to the Mission that the lack of term limits is an obstacle to refreshing political leadership and to the necessary rotation of power. They also argued that indefinite reelection weakens women's real opportunities to hold positions as municipal executives, as the parties prefer to put forward sitting mayors as candidates—the majority of which are men—because they are already well known among the electorate.

The Mission was informed that on March 19, 2019, the Constitutional Chamber admitted four constitutional challenges33 to Article 14 of the Municipal Law allowing indefinite reelection. It also found that on June 6, 2019, a group of deputies34 from the National Assembly submitted a bill to amend the Code to limit successive reelection to a single additional term.35

The Mission confirmed that the TSE had issued a technical opinion as regards the possibility of limiting reelection. In their opinion issued during the session of June 20, 2019, the magistrates found that "reelection may be subject to reasonable limitations through the formal and material promulgation of a law," and that this regulation "is a political decision that, in terms of its benefits and appropriateness, is exclusively up to the legislature."36

Regarding this issue, the European Commission for Democracy through Law (Venice Commission) has staked out its position in two reports issued following a request submitted by the Secretary General of the OAS, Luis Almagro. As regards term limits at the local level, the Commission concluded that there was no absolute human right to hold an office, and that the rights to vote and be elected could be regulated.37

33. Case File 19-000892-0007-CO. 34. Deputies Carmen Irene Chan Mora, Ivonne Acuña Cabrera, Nidia Lorena Céspedes Cisneros, Jonathan

Prendas Rodríguez, and Ignacio Alberto Alpízar Castro. 35. The proposed amendment is as follows: “Article 14 [...] All popularly-elected offices at the municipal level

provided for under the legal system shall be filled through a popular vote, with general elections to be held on the first Sunday of February, two years after the national elections in which the individuals holding the Presidency and the Vice Presidency and the members of the Legislative Assembly are selected. They will take possession of their offices on May 1 of the year of their election for a period of four years, and may be successively reelected for a single additional term. Occupants of all popularly elected offices at the municipal level may be reelected non-successively, with the same rules as set forth in the foregoing paragraph applying.”

36. Opinion 60-2019 of June 20, 2019: https://www.tse.go.cr/actas/2019/60-2019-del-20-de-junio-de-2019.html 37. Report on Term Limits Part II - Members of Parliament Part III - Representatives Elected at Subnational

and Local Level and Executive Officials Elected at Subnational and Local Level. European Commission for Democracy through Law (Venice Commission), March 18, 2019.

Available: https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)007-e

https://www.tse.go.cr/actas/2019/60-2019-del-20-de-junio-de-2019.html

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)007-e

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Regarding reelection, the Mission recommends the following:

- Revise current legislation, recalling again that, although the continuity of public policy is valuable, rotation is a fundamental pillar of a democratic system.

3.5 Electoral Organization

Electoral roll

The following were registered to vote in these elections: 1,707,763 women and 1,690,575 men, for a total of 3,398,338 voters. This figure represents an increase of 6.47% over the 2016 elections.38

It should be noted that, after the voter list was finalized and published on November 1, the TSE prepared a protocol to continue updating it in order to remove any voters who had died after the finalization date. To incorporate the information on the deaths, three new rounds were carried out. Between November 2 (finalization date) and January 5, 2020, 2,804 individuals who had died were removed from the national voter role. Another 16 were removed between that date and January 16, 2020; and between that date and February 1 (final update) 2,823 people were removed.

Forming the polling station committees

According to Article 41 of the Electoral Code, the polling station committees are comprised of at least three permanent members and their alternates, and can begin to operate with only one member.39 Each party participating in the election can register one citizen per station, with the corresponding alternate.

For these elections, the parties proposed a total of 25,414 individuals, of which only 15,461 (60%) were effectively trained and sworn in. According to the data provided by the Tribunal, there were not enough sworn members for the polling stations to operate.40

The TSE recruited and trained 11,346 electoral aides who, although intended to provide support, have the authority where necessary to take on the role of polling station members. It should be noted that, in contrast to the polling station members, the aides get paid, which partly explains why citizens express more interest in this role than in representing the parties at the polling stations. Although the measures taken by the TSE allowed the election to proceed normally, it is clear that the current model for filling the polling stations is not in line with the country’s electoral and political reality.

As regards the operation of the polling stations, the Mission confirmed that the roles of their members were not established beforehand, but rather assigned the day of the election. On election day, the observers reported that the absence of defined roles produced minor delays in setting up some of the polling stations. It was also observed that several members had to temporarily leave their posts in order to vote, as they had been assigned polling stations where they were not registered to vote.

38. Prepared using the database provided by the TSE. (As of November 2, 2019) 39. Article 43. Electoral code. 40. As of January 31, there were 223 polling stations in which no parties had sworn in representatives; 1,277

in which only one member had been sworn in; and 1,479 with only two.

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In order to ensure the polling stations are adequately formed and operational, the Mission recommends:

- Revising the party composition of the stations, as other OAS missions have suggested.

- Assigning the responsibilities and functions of each member (president, secretary) of the polling station so that each of the members knows the specific tasks they are to perform.

- Guarantee that the polling station members are able to vote at the station where they are performing their duties.

Poll monitors

In recent elections in Costa Rica, the political parties have expressed more interest in having poll monitors than polling station representatives. Among other reasons, this is because the former have the ability to file a number of different appeals on election day and are able to request review of the decisions made by polling station members. For these elections, the parties registered 49,321 monitors,41 almost four times as many as the number of sworn polling station members.42

The Mission found that currently, there are no spaces for training the monitors. Although the Tribunal offers workshops to the parties, there are no courses designed specifically for those performing election monitoring to ensure they have consistent knowledge of their rights and obligations and of the scope of their competency. In this regard, the Mission recommends:

- Designing and developing a course for poll monitors and including it permanently in the training programs.

- Establishing a single electoral training platform for all actors in the process.

Electoral materials

Pursuant to Decree 14-2019, 15 days before the vote, the TSE delivered the electoral kits to the canton-level stations, which distributed them to the presidents of the polling station committees eight days before the election. The Mission observed that, in general, the electoral materials remained in the custody of the polling station committee members or electoral officials without any support from security forces. It is noted, however, that there was no indication any incidents took place.

As far as collection of the materials, it began as soon as the tally in the polling stations concluded. The polling station members were responsible for taking the cloth bags to each of the 41 pre-established collection points. In most cases, the polling stations where the canton-level elections committee was operating were used.43

The Mission wishes to highlight the use of radio frequency identification (RFID) to monitor the transport of the cloth bags. This tool enabled automatic monitoring of the intake of materials to TSE central headquarters, streamlining the process and improving its traceability.

41. The political parties proposed 58,256 monitors, of which 49,321 were accredited. 42. A total of 15,461 polling station members were trained and sworn in. 43. Because the canton-level committees are temporary and do not have physical offices, it is common to use

one of a canton’s polling stations.

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3.6 Election technology

The Mission took note of the TSE's efforts to improve the technology platforms used at the different phases of the process. Among other things, it highlights the implementation of the Candidacy Registration Program (PIC), an online platform designed to make it easier for the parties to register their candidates.

The Mission highlights that this new platform makes it possible to replace the physical files with electronic forms. Also, the PIC is linked to the civil registry database, making it possible to cross reference information and automatically verify the personal data of the candidates registered. The program also makes it possible to follow up on the process of approving candidacies and facilitates the printing of credentials by the General Secretariat of the TSE.

Along with this, the TSE implemented innovations to the system for transmitting preliminary electoral results based on previous recommendations of the EOM/OAS. For this election, the number of polling stations that transmitted their results directly using a cellular phone application designed by the TSE increased. During these elections, a total of 2,542 (44% of the total) reported their results using this platform, 608 more than in the 2018 national elections. The Mission also underscores that, for the first time, the results were published down to the polling station level, a change that had also been recommended by the OAS.

Despite the progress made, there are still opportunities for improvement. The Mission confirmed that the images of the Vote Certifications were not uploaded to the website until after the final round of results publication.44 It therefore recommends:

- Installing points for capturing and transmitting images of the Vote Certifications so they can be published simultaneously with the results transcribed by the data enterers.

4. ACKNOWLEDGMENTS

The Mission thanks the Government of Costa Rica for the invitation to observe this vote, and the Ministry of Foreign Affairs and the Supreme Elections Tribunal of Costa Rica for allowing the experts to collect the information needed to do their work. It would also like to highlight the hospitality of the Costa Rican people and the support provided to the Mission members by all the actors in the process.

Lastly, the EOM also thanks the Governments of Bolivia, Colombia, Panama, and the Netherlands for their financial contributions, which made the deployment of the Mission and the follow-up team possible.

44. This is because the TSE decided to scan 100% of the vote tallies once they arrived to TSE headquarters.

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II. REPORTS BY AREA

A. ELECTORAL ORGANIZATION

1. Introduction

On February 2, 2020, 3,398,338 Costa Ricans were called on to cast votes to elect new municipal authorities. This was the fifth time45 in Costa Rican history that mayors were directly elected; prior to 2001, they were appointed by the members of the Municipal Council. It should also be noted that up until 2016, municipal elections were not unified: Municipal Council authorities were selected during national elections, while mayors were elected 10 months later, in separate elections. This was therefore the second unified municipal election in Costa Rica's democratic history.

The 2020 elections were a logistical challenge due to the high number of offices needing to be filled. A total of 6,138 authorities were elected: 82 mayors, 164 vice mayors, 8 superintendents, 8 vice superintendents, 508 municipal council members and 508 alternates, 486 district council presidents and 486 alternates, 1,912 district council members and 1,912 alternates, and 32 district council members and 32 alternates. Participants included 33,873 candidates and 80 political parties: 14 national political parties, eight provincial parties, 58 canton-level parties, and six alliances.

To organize this complex process, the TSE had to take charge of purging the voter rolls; registering and training the polling station members; printing and distributing electoral material; and the final count. This report delves into the main findings suggested by observing these procedures and offers recommendations for continuing to strengthen electoral processes in Costa Rica.

2. Legal framework

The electoral legal framework46 is comprised of the following laws, cited by rank:

- Political Constitution - Current treaties and conventions, approved by the Legislative Assembly - Electoral Code - Municipal Code - Rules, manuals, and other regulations issued by the TSE on administrative, labor, and

jurisdictional matters - Bylaws of the political parties - Other provisions subordinate to party regulations and statutes - In addition to this, regarding electoral organization, the following decrees issued by the

TSE by decree must be taken into account: - Decree establishing February 2, 2020, as the date for the municipal elections - Regulations for exercising the vote in the municipal elections of February 2, 2020 - Decree 11-2019, establishing the Territorial Electoral Division to govern the February 2,

2020 elections - Decree 15-2018, Regulations for registering candidates and drawing for the positioning

of political parties on ballots - Decree 14-2018, Regulations for the delegate body

45 Municipal mayors’ elections, 2002, 2006, 2010, and 2016. 46 Article 3 of the Electoral Code

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3. Electoral authorities

Supreme Electoral Tribunal

The TSE is responsible for the “organization, direction, and oversight of actions related to the vote.”47 It is therefore in charge of:48

o Elections management. The TSE is in charge of organizing the elections, for which it is assisted by the canton-level councils (one for each of the country’s 82 cantons) and polling station committees (5,755 for this election).

o Civil registry. The TSE is responsible for setting up the civil registry and recording births, adoptions, marriages, divorces, deaths, and naturalizations (for foreigners). It is also responsible for compiling the voter roll and issuing identification cards.

o Jurisdictional function. The Tribunal is in charge of ruling on challenges filed on electoral issues.

o Development of democracy. The TSE is additionally in charge of promoting democratic values, for which it has established the Institute on Democracy Research and Training (Instituto de Formación y Estudios en Democracia, IFED).

In normal times, the TSE is comprised of three permanent judgeships and six alternates, appointed by the Supreme Court of Justice.49 When national and municipal elections are held, the plenary is expanded to five judgeships, with two alternates.

Composition of the Supreme Elections Tribunal for the 2020 municipal elections50

47. Article 9º. Second paragraph of the Political Constitution of the Republic of Costa Rica. 48. Articles 9, 102, and 104 of the Political Constitution of Costa Rica; articles 12, 26, 220, and 309 of the

Electoral Code. 49. By the vote of no fewer than two thirds of its total members. 50. During a regular session, the Tribunal is comprised only of President Magistrate Luis Antonio Sobrado

González, Magistrate Eugenia María Zamora Chavarría, and Magistrate Max Alberto Esquivel Faerron, who hold the office of permanent magistrate.

Luis Antonio Sobrado

President

PRESIDENT

Eugenia María Zamorra

Cheverría, Vice President

President

PRESIDENT

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The alternate magistrates for these elections were Fernando del Castillo Riggioni, Zetty María Bou Valverde, Mary Anne Mannix Arnold, and Hugo Picado León.

To fulfill its responsibility to organize elections, the TSE is organized into the following areas: General Secretariat, General Office on the Civil Registry, General Office on the Electoral Registry and Political Party Financing, Office of the Executive Director, General Office on Technology Strategies, and the Institute on Democracy Research and Training. Also, in order to operate in outlying areas, the Tribunal is supported by 32 regional offices.

Electoral agents/officials

To carry out the work of organizing elections, the TSE is supported by 101,811 officials,51 counting both personnel hired for electoral services and temporary elections workers. The following table breaks this down in more detail.

Table 1: Elections workers during the municipal elections

Worker/official Number

Electoral advisors 116

Electoral aides 11,422

Supplemental aides 1,242

Ad honorem delegates 886

Voting center managers 592

Canton-level council members 985

Members of proposed polling station committees 25,41452

Poll monitors 58,256

TSE officials 215

Electoral guides 1,683

TOTAL 101,81153

Source: Prepared using TSE figures.

51. Figures provided by the TSE as of January 31, 2020, and confirmed by the TSE. 52. A total of 15,146 were trained and sworn in. 53. Source: Prepared using data from the TSE Electoral Programs Department

Luis Diego Brenes

Villalobos

Retana Chinchilla

Max Alberto Esquivel

Faerrón

Luz de los Angeles

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Each of these officials were assigned different responsibilities:

- Electoral advisors: TSE officials responsible for establishing, instructing, swearing in, accrediting, installing, and advising those comprising the polling station committees and the canton-level authorities.

- Electoral aides: in charge of assisting and orienting the polling station committee members in their work, and authorized to stand in for them if necessary.

- Delegates: citizens sworn in and accredited by the TSE to collaborate, ad honorem, elections activities.

- Polling station managers: training or administrative personnel working at polling stations. In charge of setting up the station, locating and distributing the polling stations, and ensuring that the site infrastructure, equipment, and materials are cared for.

- Members of the canton-level committees: electoral body helping with the organization of the electoral process in its canton. Made up of citizens proposed by the political parties (with candidates registered). They have canton-level jurisdiction.

- Members of the polling station committees: responsible for receiving materials, collecting votes, filling out the electoral documentation, performing the official act of closure, and generally ensuring the transparency of the electoral process.

- Poll monitors from the political parties: party representatives who are present for the polling station work and witness the election day.

- Electoral guides: young volunteers accredited by the TSE whose role is to provide support at polling stations to citizens with disabilities and older adults who may need assistance to vote.

The Mission underscores that individuals like the ad honorem delegates, the electoral guides, and the electoral observers ensure that the citizenry—in addition to the police and political parties—is supervising the elections. The Mission welcomes the civic spirit of the citizens who collaborated in holding the elections.

4. Electoral programs

To organize the electoral process, the TSE established a "General Elections Plan,” supplemented with an "Electoral Timeline." These instruments facilitated control of the targets and deadlines that needed to be met. The Tribunal also established 17 "Electoral Programs," each responsible for a different aspect of the organization of the vote:

1. Nonparticipation: a program to collect and consolidate information on participation in the municipal election.

2. Voting accessibility: Aimed at facilitating voting by older persons, people with disabilities, and people deprived of liberty, as well as people belonging to indigenous populations, in order to ensure they are able to exercise their political rights on an equal footing.

https://www.tse.go.cr/2020/programas.htm#collapse1


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3. Preparation of polling stations: responsible for executing actions to prepare spaces at polling stations in the San José Central canton.

4. Accreditation of local monitors and observers: in charge of accrediting local monitors and observers.

5. Electoral advisors: Responsible for coordinating the activities to integrate, train, swear in, accredit, and advise electoral agents.

6. Authorization of activities of political parties in public spaces: In charge of coordinating the process of authorizing the activities that political parties carry out in public spaces.

7. Distribution and collection of electoral materials: responsible for coordinating the distribution and collection of electoral material to and from the canton-level councils.

8. Release of the voter roll: In charge of preparing the voter roll used at the polling stations on the day of the election.

9. Packing of electoral material: Responsible for packing the electoral material to be sent to polling stations throughout the country.

10. Tally: In charge of the logistics necessary for collecting and securing the electoral documentation to conduct the final tally.

11. Ballot printing: Responsible for organizing the ballot printing process.

12. Electoral information: In charge of planning, coordinating, executing, and evaluating all activities related to setting up the electoral information systems.

13. Candidate registration: Responsible for registering the candidates submitted by the political parties and verifying that they meet the requirements set forth in the law, preparing for and resolving what is needed in this regard.

14. Reception of electoral material: Responsible for organizing logistics for receiving and securing the electoral documentation from the canton-level councils.

15. Electoral security: In charge of ensuring that the electoral process takes place under the highest security standards and coordinating with the electoral institutions and programs.

16. Data transmission: Responsible for the logistics to ensure that the preliminary results of the elections are received, transmitted, and processed efficiently, with all due security, credibility, and trustworthiness.

17. Electoral transportation: In charge of meeting the transportation needs of the different electoral programs.

5. Electoral Roll

According to Article 144 of the Electoral Code, all Costa Ricans over the age of 18 and registered on the electoral roll are voters, with the exception of individuals who have had the exercise of their political rights suspended by final judgment. To prepare the electoral registry, the information used was collected through the Civil Registry, which is regularly updated with the registration of births, deaths, and naturalizations. Court judgments that suspend citizenship were also taken into account.
















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Table 2: Update of the electoral roll

Source: Prepared using the database provided by the TSE.

Pursuant to the provisions of Article 152 of the Electoral Act, six months before an election, the Civil Registry prepares the provisional voter rolls. As soon as possible, these lists must be sent to the police authorities in each administrative district, who must post them in visible locations, making them viewable by the public for four months. The TSE will also deliver an updated copy of the voter roll to the parties at their request.

According to the information provided by the TSE, the following were registered to vote in these elections: 1,707,763 women and 1,690,575 men, for a total of 3,398,338 voters. This figure represents an increase of 6.47% over the 2016 elections. Table 3: Electoral roll per province

Province Total Men Women

San Jose 1,139,884 554,974 584,937

Alajuela 657,175 331,017 326,158

Cartago 399,475 198,274 201,201

Heredia 344,748 169,424 175,322

Guanacaste 250,585 126,246 124,339

Update of the electoral roll

Round of 04-11-2017 to 01-11-2019 2018 - 2020

Additions

Added for the first time 148,051

Readded voters whose ID cards had expired 67,895

Added through naturalization 14,084

Other additions (incorporation of naturalized citizens, etc.) 281

Total: 30,838

Removals

Removal of voters because of death 43,297

Removal of voters because of expiration (expiration of ID card) 57,621

Other removals (adoption, identity theft, etc.) 180

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Puntarenas 322,594 164,936 157,658

Limón 283,879 145,731 138,148

Total 3,398,338 1,690,575 1,707,763

Source: Prepared using the database provided by the TSE. (As of November 2, 2019)

It should be noted that, after the voter list was finalized and published on November 1, the TSE prepared a protocol to continue updating it in order to remove any voters who died after the finalization date. To incorporate the information on the deaths, three new rounds were carried out. Between November 2 (finalization date) and January 5, 2020, 2,804 individuals who had died were removed from the national voter roll. Another 16 were removed between that date and January 16, 2020. And between January 16 and February 1 (final update) 2,823 people were removed.

6. Electoral materials

The voting regulations (Decree 14-2019) include a chapter dedicated specifically to "Electoral material and documentation," which describes the materials that are essential for the election, the procedures that must be followed for distributing them, and the officials responsible for doing so. Pursuant to the decree, 15 days before the vote, the TSE delivered the electoral kits to the canton-level committee, which distributed them to the presidents of the polling stations eight days before the election. The Mission observed that the electoral materials remained in the custody of the polling station members or electoral officials without any support by security forces. It is noted, however, that there was no indication any incidents took place.

As far as collection of the materials, it began as soon as the tally in the polling stations concluded. The polling station members were responsible for taking the cloth bags to one of the 41 preestablished collection points. In most cases, the polling stations where the canton-level elections committee was operating were used.54

It is noted that the return of the materials from the polling stations to the collection centers was carried out without police custody. Once the materials were at the centers, Tribunal personnel were responsible for transporting them directly to the TSE’s central headquarters in San Jose, at which time they were accompanied by law enforcement. The Mission was informed that the materials were returned over 18 main routes,55 with an average of 341 cloth bags per route. There were also special routes for the more remote polling stations, which were accessed using special vehicles. A total of 893 cloth bags (15.5%) were collected using the special routes.

The Mission wishes to highlight the use of radio frequency identification (RFID) to monitor the transport of the cloth bags. This tool enabled automatic monitoring of the intake of materials to TSE central headquarters, streamlining the process and improving its traceability.

54. Because the canton-level committees are temporary and do not have physical offices, it is common to use

one of a canton’s polling stations. 55. Of the 18 routes, 6 covered special cases: Coco Island, indigenous areas, Puriscal Canton, Nicoya

Peninsula, the Golfo Islands in Nicoya, and the Central Offices.

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7. Training

The Mission was informed that each area is in charge of training the electoral agents under its responsibility. Thus, the electoral advisors, the aides, and the polling station committee members are trained by those responsible for the TSE’s electoral aides program, while those working with the magistrates on the tally are trained by the tally program officials. Older adults and voters belonging to indigenous populations are trained under the voting accessibility program. To fulfill this objective, each unit decides whether or not to seek support from the Institute on Democracy Research and Training (Instituto de Formación y Estudios en Democracia, IFED).

The Mission learned that, during this election, the IFED provided support to 6 of the 17 electoral programs.56 In order to enhance the knowledge of the various electoral agents, the Institute used multiple pedagogical tools and technological resources like informational videos, virtual courses, and videoconferences. Although these programs were available over the Internet, there was no single platform for the training work.

With regard to training the members of the polling station committees, this was conducted by the electoral advisors program, with support from IFED. According to the information received, out of a total of 15,461 polling station members who were effectively sworn in, 100% received training.

Lastly, regarding voter training activities, worth noting are the voter information programs conducted in the indigenous language in the Nimari Ñac (Río Peje), Guaymi de Vírica, and Sinoli territories.

Table 4: Implementation of training programs in indigenous languages

Territory Location Language

Nimari Ñac (Río Peje) Turrialba Cabecar

Guaymi de Vírica Golfito, Pavón Ngöbe

Sinoli Central, Valle la Estrella Bribri


8. Staffing and operation of the polling stations

For these elections, 5,755 polling stations were established, 125 more than in the previous municipal elections (5,630). The individual voter roll for each station ranged between 350 and 750 voters, with the exception of polling stations located in penitentiaries, retirement homes, and the Care Center for People with Mental Illnesses in Conflicts, where the number of voters did not exceed 400.

Regarding the composition of the polling station committees, Article 41 of the Electoral Code establishes that they be comprised of at least three permanent members and their alternates, and can begin to operate with only one member.57 Each party participating in the election can register one citizen per station, with the corresponding alternate.

According to the information received, no political party put forward enough members to cover all of the permanent and alternate representative positions available to them (11,510). The party with

56. Electoral advisors; packaging, distribution, and collections; results transmission; accreditation of monitors;

and voting accessibility. 57. Article 43 Electoral code.

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the most representatives was Liberación Nacional, with 9,407, followed by the Partido Unidad Social Cristiana, with 4,247.

Table 5: Number of members proposed for the polling station committees per party

Political party Proposed members Level

Percentage of total slots available

Liberación Nacional 9,407 National 81.73

Unidad Social Cristiana 4,247 National 36.90

Acción Ciudadana 1,785 National 15.51

Nueva República 1,503 National 13.06

Nueva Generación 1,263 National 10.97 Source: Prepared using the database provided by the TSE.

In total, the parties proposed 25,414 individuals, of which only 15,461 (60%) were effectively trained and sworn in. According to the data provided by the Tribunal, there were not enough sworn members to ensure the polling stations could operate.58

To address this issue, as in previous elections, the TSE recruited and trained 11,346 electoral aides who, although intended to provide support, have the authority where necessary to take on the role of polling station members. It should be noted that, in contrast to the polling station members, the aides get paid, which partly explains why citizens express more interest in this role than in representing the parties at the polling stations. Although the measures taken by the TSE allowed the election to proceed normally, it is clear that the current model for filling the polling stations is not in line with the country’s electoral and political reality.

As regards the operation of the polling stations, the Mission confirmed that the roles of their members were not established beforehand, but rather assigned the day of the election. On election day, the observers reported that the absence of defined roles produced minor delays in setting up some of the polling stations. It was also observed that several members had to temporarily leave their posts in order to vote, as they had been assigned polling stations where they were not registered to vote.

9. Poll monitors

In recent elections in Costa Rica, the political parties have expressed more interest in having poll monitors than polling station representatives. Among other reasons, this is because the former have the ability to file a number of different appeals on election day and are able to request review of polling station committee decisions. For these elections, the parties registered 58,144 monitors, almost four times as many as the number of sworn polling station members.59

The Mission found that currently, there are no spaces for training the monitors. Although the Tribunal offers workshops to the parties, there are no courses designed specifically for those performing election monitoring to ensure they have consistent knowledge of their rights and obligations and of the scope of their competency.

58. As of January 31, there were 223 polling stations in which no parties had sworn in representatives; 1,277

in which only one member had been sworn in; and 1,479 with only two. 59. A total of 15,461 polling station committee members were trained and sworn in.

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10. Voter accessibility

The "voting accessibility" program is responsible for guaranteeing the “special votes”—that is, the right to vote of people deprived of liberty, older adults, people with mental and physical disabities, and people living in indigenous areas. Under this program, 39 polling stations were set up in 12 penitentiaries, housing 10,148 registered voters; 50 polling stations were established in retirement homes, for 2,471 voters; 1 polling station was set up for 129 voters in a Care Center for People with Mental Illnesses in Conflicts; and 97 polling stations were set up in indigenous areas to serve 38,537 voters. The accessibility program is also in charge of putting together the so-called support materials: braille ballots, anti-slip ballots, signing aid, magnifying glasses, pencil grips, partitions, and communication cards.

Also, those with some disability or difficulty voting had the option of assisted voting and public voting. The former allowed the voter to be accompanied by someone and the latter to ask that a member of the polling station committee mark the ballot as indicated by the voter.

Lastly, with regard to voting by people with mobility problems, Article 164 of the Electoral Code prohibits the polling stations from being located in places that are not accessible or voting from taking place on upper floors. The Mission observers reported that this provision was fully complied with at the polling stations visited.

11. Final tally

The final tally is carried out by the TSE magistrates, who examine the electoral documentation provided by the polling station committees. The members of the Tribunal review the tally sheets and, upon finding no inconsistencies, validate the results. However, there are four grounds on which the TSE must move to conduct a recount:60

“a) For polling stations against whose results appeals or suits for nullification are found admissible and this process—in the opinion of the TSE—is necessary for resolution.

b) When a polling station’s results are clearly inconsistent.

c) When the preliminary count is not carried out in the presence of at least three party members or the electoral aide designated by the TSE and representatives of at least two political movements, regardless of whether they are working the polling station or serving as party monitors, which must be noted for the record.

d) For polling stations whose voter list is lost, not used, or includes observations that merit a recount.”61

The following table provides detailed information on the number of polling stations for which a recount was conducted, with the data broken down by type of election.

60. Regulations for exercising the vote. Article 36. 61. Article 36 of the Regulations for exercising the vote in the municipal elections of February 2, 2020. Decree

14-2019.

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Table 6: Percentage of elections recounted

Source: Supreme Electoral Tribunal

According to the results of the tally, the Partido de Liberación Nacional (PLN) won the largest number of mayoralties, with 43, followed by the Partido Unidad Social Cristiana (PUSC), with 15. It should also be noted that 3 mayoralties remained in the hands of provincial parties, while 9 remained with canton-level parties.

Regarding participation, 36.3% of registered voters participated, a slight increase compared to the last municipal elections in 2016. However, the abstention rate continues to be a challenge for local elections in Costa Rica.

Table 7. Electoral participation during the last three municipal elections

Source: prepared using TSE data through the 12th round of preliminary results of the 2020 municipal elections.

12. Recommendations

- According to the data provided by the Tribunal, as with past elections, the parties did not put forward enough polling station committee members to guarantee their operation. The Mission recommends revising the party composition of the stations, as other OAS missions have suggested.

- The Mission confirmed that the roles of polling station committee members are not established beforehand. The recommendation of the 2016 EOM to Costa Rica, to assign the responsibilities

72.10% 64.60% 63.70%

27.90% 35.40% 36.30%

0.00%

20.00%

40.00%

60.00%

80.00%

100.00%

2010 2016 2020

Participación

Abstencionismo

Participation

Abstention

27

and functions of each member (president, secretary) of the polling station so that each of the members knows the specific tasks they are to perform, is thus reiterated.

- On election day, it was also observed that some polling station committee members had to temporarily leave their posts in order to vote, as they had been assigned polling stations where they were not registered to vote. The Mission recommends guaranteeing that the polling station members are able to vote at the station where they are performing their duties.

- The Mission was informed that the TSE does not have an area in charge of training all the actors involved in the electoral process, but rather that each program is in charge of training the electoral agents under its responsibility. The Mission recommends establishing a single electoral training platform for all actors in the process, and putting a specialized area in charge of this.

- The Mission found that currently, the TSE does not offer training to party poll monitors. In view of the recognized capacity of the TSE, it is recommended that it develop a program to ensure the monitors have consistent knowledge of their rights and obligations and of the scope of their competency.

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B. ELECTORAL TECHNOLOGY

1. Introduction

On February 2, 2020, Costa Ricans were called on to select new canton- and district-level authorities. For these elections, the Supreme Elections Tribunal (TSE) implemented a series of information technology tools to facilitate the dissemination of information about the process and encourage voting.

During the pre-electoral phase, the TSE made the Candidacy Registration Program (PIC) available to the parties. The program provides a website through which parties can register their candidates. The PIC made the registration process and follow-up on candidate approvals easier.

Another information technology platform developed by the TSE was the Informed Voter app. The tool could be easily downloaded on a cellular phone and provided voters with information on the political profile of candidates, their platforms, and their social media contacts.

Along with this, the TSE implemented innovations to the system for transmitting results based on previous recommendations of the EOM/OAS. For this election, the number of polling stations that transmitted their results directly using a cellular phone application designed by the TSE increased. This report looks at these innovations and offers a series of recommendations with the aim of continuing to strengthen Costa Rica's electoral process.

2. Candidacy Registration Program

As described above, for these elections, the TSE developed a Candidacy Registration Program (PIC), an online platform designed to make it easier for the parties to register their candidates. The PIC has two modules: A main module for administrative use by the Department of Political Party Registration and a second module through which parties can submit new registrations.

This new platform offers a number of advantages. First, it replaces physical files and paper documentation with electronic forms. This contributes to both saving resources and streamlining file management.

Also, the PIC is linked to the civil registry database, making it possible to cross reference information and automatically verify the personal data of the candidates registered. The program also makes it possible to follow up on the process of approving candidacies and facilitates the printing of credentials by the General Secretariat of the TSE.

3. Information for voters

The TSE set up a number of channels for informing citizens on aspects of the electoral process. In addition to traditional media outlets—print, radio and television—and the TSE’s own website, text messages were used to disseminate information.

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The Mission also observed that the TSE made a website available to voters where they could check their polling place. By visiting https://consultadondevotar.tse.go.cr/dondevotarM/ and entering their national ID numbers, voters could check the polling station where they were supposed to vote.

However, the most important innovation in this process was the development of the Informed Voter app, designed to be downloaded and installed on mobile phones. With this app, voters could check the electoral timeline, their polling station, or frequently-asked questions. The platform also contained information on the political profile of candidates, their platforms, and their social media contacts.

4. Voter identification verification

Pursuant to Article 177 of the Electoral Code, on the day of the election, all voters must identify themselves to the members of the polling station committee before receiving a ballot. To do so, they must present their ID card, allowing the committee members to confirm they are effectively registered on the voter roll. Once this is done, they are allowed to vote and are asked to sign the registry as evidence of their participation.

Thus, the ID card and security measures applied during the process are crucial for ensuring that only authorized citizens vote. It is for this reason that in recent years, the TSE has incorporated new technology into the ID card design with the aim of preventing counterfeits or falsifications. The security measures include adding a barcode, an ultraviolet pattern, a high definition photograph, and a holographic laminate, among other things.

Figure 1. National ID card security measures

Source: TSE.

The following are some statistics on ID cards printed over the last four years:

Table 1: ID cards printed per year

Year ID cards printed

2014 659,976

2015 654,730

2016 679,683

https://consultadondevotar.tse.go.cr/dondevotarM/

30

201762 801,311

2018 800,354

2019 786,735 Source: TSE

The Mission was also informed that the TSE continues to make progress toward implementing a multi-biometric civil registry that combines fingerprint and facial recognition biometrics throughout the registries. Although this project is still in its initial phase, its implementation will provide further guarantees of voter identification by making it possible to compare both biometric variables.

5. System for transmitting and publishing preliminary results

The transmission of preliminary results is a mechanism whereby political parties, media outlets, and citizens are provided with information prior to the official tally. The data reported are not official and have no legal weight.

The Mission observed that the TSE implemented innovations to the system based on previous OAS recommendations. For this election, the number of polling stations that transmitted their results directly using a cellular phone application designed by the TSE increased. Likewise, for the first time, the results were published down to the polling station level, a change that had also been recommended by the OAS.

The following is an analysis of the technology infrastructure used to transmit the results, the testing of the system, and the data publication workflow on the night of the election.

System simulations and tests

Prior to these elections, the TSE conducted a series of simulations to test the systems for transmitting and publishing results and verify that the machines to be used were properly configured and distributed. In addition to confirming that the technology platforms were functioning properly, these exercises allowed for the training both of those responsible for the transmission and of the operators assigned to work the call center.

The following is a calendar of transmission tests carried out by the TSE The EOM/OAS was present for the final simulation, which took place on January 30, 2020.

Table 2: Results transmission simulations carried out

Tests/simulations General objective Date

Simulation Verify that the data transmission platform (hardware, software, and communication) is working properly, as are the call centers (TSE, ICE, and RACSA) and schools that transmit using laptops and mobile applications, including the 1021 and 800 lines.

December 5, 2019

Simulation Verify that the data transmission platform—including the ICE and RACSA services

January 09, 2020

62. Year in which the new ID card format was implemented.

31

contracted—are working properly.


January 16, 2020


January 23, 2020


January 30, 2020


It should be noted in addition that on Saturday, February 1, at 6:00 p.m., an exercise was conducted to zero out the databases on the server installed at the Tribunal’s computing center. In a number of tests, the Mission observed that the TSE has been able to consolidate a robust technology platform that provides a significant degree of availability and redundancy to operations that are critical for the elections.

Despite this, there are still opportunities for improvement. Specifically, it was observed that when software froze, no mechanisms were implemented to verify the integrity of the system’s digital files. This type of instrument has already been implemented in other countries of the region to improve the protection of information from possible cyberattacks.

Results transmission

As of the close of voting, the members of the 5,755 polling stations proceeded to tally up the ballots, recording the results in the corresponding "Vote Certifications." Once completed, they were collected by electoral aides for transmission using three mechanisms:

Online system: A total of 630 polling stations used the online system. The results were entered into an application specifically designed and directly linked to a TSE private network.

Mobile app: A total of 2,542 polling stations (44% of the total) reported their results using a mobile app, 608 more than in the 2018 national elections.

Call center: A total of 2,583 polling stations reported in by phone. The electoral aides were to contact operators at the call center located in San Jose, identify themselves using a PIN, and then give the results.

With regard to the measures taken to protect information, it was noted that the three call centers set up for transmission of results by voice communication were connected to the main site with redundant links. Also, the data enterers that transmitted the results using mobile apps did so through a private APN link.

32

Figure 2: Transmission arrangement


Once transmitted, the data was digitized and consolidated at the province, canton, district, and polling station level, producing partial results bulletins for each department. The bulletins are made available to the media and political parties, which were able to access them through dedicated servers or asked that they be sent by email.

Results publication.

Three different methods were used for publishing the election results:

Production of information for release on the internet: Once the files from the process of consolidating the results were received and validated, online information was produced that could be viewed by the general public. The TSE's public website (https://www.tse.go.cr/Resultados2020/#/alcaldes) offered real-time access to the electoral results starting at 8:00 p.m. The information was updated continuously every 20 minutes until noon on Monday. The website also offered a lighter mobile-friendly version.

Production of flat files for the media and political parties: Once the files were received and validated, they were converted into XMLs to be accessed by the media and political parties on dedicated servers and/or received by email if so wished.

Production of files for mobile devices: An app was made available to the public for mobile telephones or tablets on which they could access the preliminary results in real time. Citizens could download the app from the Internet or the App Store, and it was available in both smartphone and tablet versions.

The Mission again underscores that, for the first time, the results were published down to the polling station level, a change that had been recommended by the OAS. Despite the progress made, there are still opportunities for improvement. The Mission confirmed that the images of the tally sheets were not uploaded to the website until after the final round of results publication. This is because the TSE decided to scan 100% of the vote tallies once they arrived to TSE headquarters.

191

125

33

In addition, although the website that citizens could access showed the results by canton, aggregated information on the number of mayoralties won per party at the national level was not published. This data was indeed released in the Tribunal’s press briefing room and over the mobile app, as can be seen from the following image:

Source: Supreme Elections Tribunal.

As regards the time it took to process and publish the results, the Mission observed that these

processes were carried out normally and without delays. The TSE had planned for transmission of the result to begin at 6:00 p.m. and to continue through 12:00 p.m. the following day. The Mission found that as of 11:00 p.m. on the night of the election, 91% of the polling station results had been processed, as can be observed from the following graphic. Figure 3: Progress of the transmission of the results.

Source: Prepared using the information collected.

6. Recommendations

- The Mission confirmed that the images of the Vote Certifications were not uploaded to the website until after the final round of results publication. The recommendation is to install points for capturing and transmitting images of the Vote Certifications so they can be published simultaneously with the results transcribed by the data enterers.

- The Mission found that aggregated information on the number of mayoralties won per party at the national level was not published on the Tribunal’s website. It recommends adding this data to the TSE portal to facilitate citizen and media access to it.

19:15 20:00 20:25 20:55 20:55 21:10 21:25 21:40 21:55 22:1723:00

:00PM

% Actas procesadas 0.00 15.6% 30.5% 41.7% 53.3% 62.6% 70.7% 77.0% 82.2% 86.2% 91.0%

0.00 15.6%

30.5% 41.7%

53.3% 62.6%

70.7% 77.0% 82.2% 86.2% 91.0%

0%

20%

40%

60%

80%

100%

Per

cen

tage

of

tally

sh

eets

re

ceiv

ed

Results transmission process

34

- Although the TSE has been able to consolidate a robust technology platform for transmitting preliminary results, opportunities for improvement persist. To continue enhancing system security, the Mission’s suggestion is to hash the digital files to guarantee an enhanced level of protection from possible cyberthreats.

35

C. CAMPAIGN FINANCING

1. Introduction

Costa Rica has a mixed financing model combining public and private resources. This system took effect in 2009 with the promulgation of the new Electoral Code that introduced important changes: (i) implementation of public financing via reimbursement (post-electoral) and—in exceptional cases for national elections—in advance (pre-electoral); (ii) transfer of controls and oversight processes from the Office of the General Comptroller to the Supreme Elections Tribunal (TSE); (iii) permanent reporting processes for political organizations; and (iv) a regime of sanctions for those who do not comply.

Current law provides the Supreme Elections Tribunal with robust tools for fulfilling its oversight responsibilities. Also, in recent years, the TSE has trained the political parties in the submission of their financial reports and taken measures to standardize accounting so as to facilitate the reporting processes.

Despite the progress made, the Costa Rican financing system still offers opportunities for improvement, especially as regards equity. The fact that State contributions are provided in the form of reimbursements and after the elections means that small parties or parties with no electoral track record have a difficult time accessing campaign resources. This report provides a comprehensive analysis of the Coast Rican financing system and the obstacles to ensuring balance during elections.

2. Legal framework

The laws governing post electoral financing in these elections are set forth in:

1. The Political Constitution of the Republic of Costa Rica; 2. The Electoral Code, Law 876563; 3. The regulations on financing for political parties and amendments.64

3. Financing system

a) Financing equity

a) 1. Public financing

Article 96 of the Costa Rican Constitution indicates that the State must contribute to covering the expenses of political parties. In 2016, it was established65 that for the 2018 and 2020 elections, parties would have the right to receive a maximum State contribution equivalent to 0.11% of gross

63. Ibidem 64. The regulations on financing for political parties, op. cit. Decree 17-2009. Agreement reached in regular

session 105-2009, October 15, 2009. 65. Through Law 9407

36

domestic product (GDP). Complementary to this, on January 31, 2017, the TSE issued Resolution 0959-E10 breaking down the distribution of the State contribution as follows:66

Table 1: State contribution to the 2018 national elections and 2020 municipal elections

2018 presidential and legislative elections ₡25,029,906,960.00

2020 municipal elections ₡9,386,215,110.00


Under current law, the amount received by each organization is granted subsequent to the elections in the form of a reimbursement. The expenses incurred by the parties during the campaigns (from the time the date of the election is set until 45 days after the vote) must be liquidated before the TSE within 45 working days of the winner being declared in the election.67 Once the corresponding verifications have been carried out, the TSE disburses funding until the balance corresponding to each political party is drawn down.

- Reimbursable expenses period:

- Term for presenting liquidation of reimbursable expenses68

66. Breaking down into 0.03% of GDP to finance municipal elections and the remaining 0.08% for the

presidential and legislative elections in 2018. 67. Electoral code Article 102. 68. Time estimate made by the specialist.

October 2, 2019

Elections date set February 2, 2020

Day of the vote March 18, 2020

45 calendar/natural days after the vote

February 2, 2020

Day of the vote April 2, 2020

Tally by the different municipal authorities must be completed

June 9, 2020

45 working days after the declaration of results for all the municipal offices

37

To calculate how much money must be allocated to each organization, first the individual per-vote cost is determined. For this calculation, the total amount of the State contribution for the elections is divided by the number of valid votes obtained by all the political parties with the right to receive a contribution—that is, parties with more than 4% of the votes in the respective canton. After calculating the individual per-vote cost, this value is multiplied by the total number of votes that each party received to determine the funds that must be allocated to it.

In contrast to the way national elections work, in municipal elections, the State funding is not provided in advance. This forces the parties to turn almost exclusively to bank loans in the hope of being able to meet the requirements of the law69 in order—through liquidation of expenses—to receive the reimbursement and repay the debt. According to the information received by the Mission, the majority of the parties have difficulty accessing these loans, as, when evaluating their capacity for repayment, banks take into consideration the electoral projections and require collateral, which the parties are often not able to provide.

A trust contract70 is the main alternative available to parties for accessing credit from financial entities. In these elections, it was noted that of the 86 parties participating, only three signed trust contracts, for different reasons:

Table 2: Parties that sought a trust in the 2020 municipal elections

Source: Supreme Electoral Tribunal

The issues with financing via reimbursement have been noted repeatedly by the OAS Missions. This way of doing things not only means that smaller parties with less of a track record have problems accessing campaign resources, but in addition, even if a political party obtains a large number of votes without having spent money during the pre-electoral period, it would not receive a State contribution, as such contributions are only granted in reimbursement of expenses incurred. As indicated by the 2018 EOM, reimbursement is established in the country’s Political Constitution, and therefore changing this method of distributing the State contribution would require a constitutional amendment.

As far as the way in which resources are distributed within the parties, current law does not establish any criteria. This means that each party determines how to allocate the funds among the different candidates. In a number of interviews with woman candidates and women party representatives, they pointed to the need for financing mechanisms to guarantee that they receive earmarked resources to conduct their campaigns. The interviewees agreed that the parties tend to prioritize male candidates in the understanding that they are more likely to win.

a) 2 Private financing

69. Article 99. Electoral code. 70. The trust is a line of credit that parties can access, which depends on their projected "political debt."

Although these loans must be approved by the TSE, it is the bank that disburses the resources.

FIDEICOMITENTE FIDUCIARIO FIDEICOMISARIO MONTO DEL

FIDEICOMISO

OFICIO DE AVAL

DFPP

PLN COFIN S.A. BANCO BCT 2 400 000 000₡ DFPP-898-2019

PRN COFIN S.A. BANCO PROMERICA 800 000 000₡ DFPP-1086-2019

PUSC COFIN S.A. BANCO BCT 1 300 000 000₡ DFPP-897-2019

38

The Electoral Code allows political parties to obtain private financing, this being understood as "… any contribution that an individual makes directly to a political party in the form of cash, financial assets, or registrable property.”71 Regarding limitations, Article 152 of the Code prohibits direct contributions to candidates, establishing that all donations must be channeled through the party treasuries. Likewise, Article 128 prohibits contributions from foreigners or juridical persons. This means that companies cannot participate in campaign financing.

Pursuant to information obtained from the Supreme Elections Tribunal’s Political Party Financing Department, private contributions to the municipal elections were as follows:

Table 3: Total private donations for municipal elections.

2010 2016 202072

Cash ₡319,958,324.20 ₡417,017,821.79 ₡142.900.548,16

In kind ₡0.00 ₡183,044,319.81 ₡31,227,646.70

Total: ₡319,960,334.20 ₡600,062,141.60 ₡174,128,194.86


If the total 2018-2020 cycle is analyzed to take into account donations made outside the electoral period, the breakdown of contributions reported per party is as follows:

71. Article 120 Electoral code, Op. Cit. 72. Corresponds to the donations amounts entered in the database maintained by the PPFD as of February 5,

2020.

39

Source: Supreme Elections Tribunal.

Elections law does not set limits on private financing or on contributions from an individual donor. For cash contributions, according to the information provided by the TSE, the largest contributions made by individuals for the 2010, 2016, and 2020 processes are as follows:

Table 4: Largest individual contributions for municipal elections

2010 2016 2020

Largest individual contribution ₡8,837,500.00 ₡15,780,000.00 ₡5,750,000.00


a) 3 Limits on campaign expenditures

EFECTIVO TOTAL EFECTIVO ESPECIE TOTAL ESPECIE TOTAL GENERAL

PARTIDO POLÍTICO ELECTORAL NO ELECTORAL ELECTORAL NO ELECTORALACCION CIUDADANA 13.493.714,90 91.579.283,03 105.072.997,93 2.254.425,21 1.808.904,99 4.063.330,20 109.136.328,13

ACTUEMOS YA 2.637.775,00 690.000,00 3.327.775,00 3.327.775,00

ALIANZA DEMOCRATA CRISTIANA 12.818.480,00 1.824.000,00 14.642.480,00 280.000,00 96.937,00 376.937,00 15.019.417,00

ALIANZA POR SAN JOSE 1.147.450,00 2.804.287,00 3.951.737,00 3.261.800,00 3.261.800,00 7.213.537,00

AUTENTICO LIMONENSE 10.001,00 10.001,00 95.000,00 95.000,00 105.001,00

AUTENTICO SIQUIRREÑO 6.000,00 6.000,00 6.000,00

AVANCE MONTES DE OCA 740.000,00 333.120,00 1.073.120,00 388.000,00 20.000,00 408.000,00 1.481.120,00

BARVA UNIDA 581.000,00 20.000,00 601.000,00 650.000,00 650.000,00 1.251.000,00

CANTONAL DE CARRILLO 1.770.000,00 1.770.000,00 1.770.000,00

CURRIDABAT SIGLO XXI 1.240.933,00 6.002.388,00 7.243.321,00 500.000,00 500.000,00 7.743.321,00

DE LOS TRABAJADORES 5.669.491,43 5.669.491,43 5.669.491,43

DEL SOL 115.000,00 115.000,00 115.000,00

DESARROLLO TALAMANQUEÑO 856.000,00 856.000,00 856.000,00

FRENTE AMPLIO 10.367.621,00 47.424.028,73 57.791.649,73 40.000,00 40.000,00 57.831.649,73

INTEGRACION NACIONAL 13.143.350,00 100.000,00 13.243.350,00 17.741.788,67 17.741.788,67 30.985.138,67

JUSTICIA SOCIAL COSTARRICENSE 145.000,00 145.000,00 145.000,00

LIBERACION NACIONAL 19.942.330,00 58.628.509,00 78.570.839,00 9.655.524,14 3.689.603,00 13.345.127,14 91.915.966,14

LIBERAL PROGRESISTA 255.000,00 2.150.601,00 2.405.601,00 2.405.601,00

MOVIMIENTO AVANCE SANTO DOMINGO 6.520.000,00 6.520.000,00 6.520.000,00

NUESTRO PUEBLO 1.616.000,00 1.616.000,00 1.349.347,72 1.349.347,72 2.965.347,72

NUEVA GENERACION 5.655.077,00 2.481.000,00 8.136.077,00 8.136.077,00

NUEVA REPUBLICA 5.396.849,00 5.396.849,00 5.396.849,00

PALMARES PRIMERO 6.420.000,00 6.420.000,00 6.420.000,00

PROGRESER 8.120.371,90 1.110.000,00 9.230.371,90 9.230.371,90

PURISCAL EN MARCHA 5.000,00 5.000,00 5.000,00

RENOVACION COSTARRICENSE 765.500,00 765.500,00 765.500,00

RENOVEMOS ALAJUELA 533.000,00 2.081.000,00 2.614.000,00 2.614.000,00

REPUBLICANO SOCIAL CRISTIANO 1.557.970,00 1.557.970,00 1.557.970,00

RESCATE CANTONAL LA UNION 170.000,00 496.000,00 666.000,00 666.000,00

RESTAURACION NACIONAL 5.411.048,45 27.642.488,00 33.053.536,45 302.000,00 49.200.016,71 49.502.016,71 82.555.553,16

SENTIR HEREDIA 783.820,00 783.820,00 783.820,00

SOMOS MORAVIA 4.465.980,00 4.465.980,00 177.800,00 177.800,00 4.643.780,00

SOMOS SARCHI 870.000,00 870.000,00 870.000,00

TERRA ESCAZU 16.008.739,35 486.465,00 16.495.204,35 16.495.204,35

TURRIALBA PRIMERO 668.000,00 668.000,00 668.000,00

UNIDAD SOCIAL CRISTIANA 1.750.805,00 1.585.000,00 3.335.805,00 10.934.498,63 28.330.662,58 39.265.161,21 42.600.966,21

UNIDOS PARA EL DESARROLLO 881.202,56 881.202,56 551.251,00 551.251,00 1.432.453,56

UNION GUARQUEÑO 660.000,00 660.000,00 660.000,00

VAMOS 214.911,00 214.911,00 214.911,00

TOTAL GENERAL 142.900.548,16 249.332.050,76 392.232.598,92 31.227.646,70 108.718.904,38 139.946.551,08 532.179.150,00

Nota: El periodo electoral comprende désde el día de la convocatoria a elecciones hasta 45 días después de celebrada la elección.

-Monto Expresado en Colones-

TRIBUNAL SUPREMO DE ELECCIONES

DEPARTAMENTO DE FINANCIAMIENTO DE PARTIDOS POLÍTICOS

RESUMEN DE LAS CONTRIBUCIONES DEL CICLO ELECTORAL MUNICIPAL 2018-2020

PERIODO COMPRENDIDO ENTRE EL 22 DE MARZO DE 2018 Y EL 31 DE DICIEMBRE DE 2019

REPORTE GENERADO EL 05 DE FEBRERO DE 2020

40

Electoral law does not set limits or maximums on campaign spending. A number of actors with which the Mission met identified communications as one of the main factors behind rising expenses—including fees to communications agencies, cost of producing audio-visual materials, and, fundamentally, the purchase of media advertising. In this regard, the observation made in previous OAS missions should be reiterated as to the lack of indirect public financing mechanisms that guarantee parties minimum airtime on the radio and television.

The costs of organizing for the election also constitute a significant expense. Parties must provide incentives to those volunteering as committee members or party representatives on election day, as well as provide them with transportation. Along with these logistical and organizational costs is the financial burden of paying for the loans acquired by the party in previous elections.

b) Financing transparency

b) 1 Reporting

Costa Rican legislation includes a series of provisions aimed at guaranteeing the transparency of campaign financing. First, the funds that parties receive from private sources must be deposited in a single account, of which the TSE must be informed.73 For their part, banks are responsible for ensuring that no anonymous deposits are made in these current accounts.74

As part of the finances oversight process, political parties are also required to submit the following information to the TSE:

1. A full and detailed report of the contributions or donations received, indicating the name and national ID number of the contributor, as well as the amount donated. For in-kind contributions, the valuation of the donation must be noted.

2. A complete set of financial statements, consistent with the IAS and IFRS and the guidelines established by the Political Party Financing Department.

3. Statements of all bank accounts, with their respective subaccounts.

4. All supporting documentation for the accounting.

5. Legalized accounting books, properly updated.75

During non-electoral periods, this information must be delivered on a quarterly basis.76 During electoral periods, however, parties are required to submit their reports on a monthly basis.77

The Mission observed that, following the recommendations made by the OAS in previous elections, the Tribunal has made significant efforts toward guaranteeing that the political parties report their financial information correctly. It was confirmed that measures of standardized accounting78 have

73. Article 122 Electoral code. 74. Ibidem 75. PICADO León, Hugo and CHACON Badilla, Ronald. Financiamiento de los Partidos Políticos en Costa Rica.

Published by Editorial IFED-TSE. 2019. 76. Article 88 Regulations on political party financing. Op. Cit. 77. Ibidem 78. Specifically, procedures have been implemented consistent with the IAS and IFRS. The International

Financial Reporting Standards (IFRS) are technical standards adopted by the International Accounting

41

been adopted to harmonize the presentation of information. The Tribunal has also provided ongoing support and training to the parties to ensure that the reporting on both income and expenditures is done correctly, thereby reducing the potential for inconsistencies in the accounts submitted.

Despite the progress made, it is noted that certain opportunities for improvement persist, especially with regard to the expenditures liquidation process. Based on the testimony collected by the Mission, it is noted that although the TSE made a tool available on its webpage for parties to report their expenditures and receive the corresponding reimbursement, the need to present the physical expenditure liquidation documents persists. Because Costa Rica has a generalized culture of electronic invoicing, parties often only have digital receipts and must print them out in order to build files that can be attached to the liquidation of expenditures report. This causes unnecessary delays and greater expenditures, such as on paper, printers, filing cabinets, etc.

b) 2 Oversight

The TSE’s Political Party Financing Department (PPFD) is in charge of overseeing the public and private financing of political parties. To fulfill this responsibility, the PPFD reviews the “expenses liquidation” reports presented by parties with a right to State funding and analyses the financial reports that all parties must submit periodically. This department is also in charge of investigating allegations related to financing.

The Mission highlights that the TSE has robust tools for fulfilling its control responsibilities. Through the General Electoral Registry Office and its Political Parties Financing Department, the Tribunal has the capacity and the authority to investigate the financial solvency of those who contribute to campaigns, with the ability to pursue procedures to lift bank confidentiality where required.

The TSE is also in charge of conducting audits of political party financial management and accounting to verify they are acting in accordance with the laws regulating their financing. These exercises also contribute to evaluating the efficiency of each party’s internal controls so as to identify aspects that could be improved and carry out the pertinent corrective actions.79

So as to avoid hindering the parties, audit work during electoral periods is limited to providing advisory services and support. The following table summarizes the activities carried out during this period.

Standards Board – IASB. They are international standards or norms for accounting activity and establish requirements for recognizing, measuring, presenting, and reporting on transactions and economic facts.

79. The TSE’s website provides examples of audit reports issued by the PPFD. (see https://www.tse.go.cr/auditorias.htm).

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Table 5: Audit activities conducted during electoral periods

Source: TSE

b) 3 Sanctions regime

Title VI of the Electoral Code defines conduct constituting electoral violations and the corresponding penalties. With regard to financing, the majority of the legal responsibility lies with the party treasurer or the person in charge of campaign finances. Is also observed that in most cases, sanctions are not financial, and instead involve prison time.

Articles 275 of the Code establishes a punishment of two months to one year in prison for the executive committee treasurer of a party that fails to keep a record of its fundraising activities. Additionally, Article 276 establishes a prison term of two to four years for any treasurer who directly or indirectly receives contributions from sources prohibited by law.

In terms of financial penalties, the Code80 sets a fine of two to 10 monthly minimum wages81 (approximately US$1,600 and US$8,000) for cases in which a party receives contributions outside the TSE-authorized account. Also, in the case of illegal contributions, the party is fined double the amount received.82

4. Recommendations

- The fact that State contributions are provided in the form of reimbursement subsequent to the vote produces inequity in the election. The Mission reiterates the recommendation made by previous OAS missions on the need to establish a form of pre-election public financing to ensure the parties have the resources to begin campaigning, thus reducing dependency on private financing.

- A number of actors told the Mission that one of the main factors behind rising expenditures was the purchase of advertising space. The Mission suggests implementing a free electoral advertising section to guarantee space to all parties to present their platforms. This measure,

80. Article 287. Electoral code. 81. The monthly minimum wage for 2020 is ₡450,200.00, and US$1 is equivalent to ₡563 82. Article 288 Electoral code.

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which has been recommended by previous OAS missions, will not only strengthen the equity of the election but also contribute to improving the financial situation of the political parties, as publicity is one of the main areas of campaign expenditure.

- The liquidation of expenses to access the reimbursement is not a digital process, but rather requires the submission of physical supporting documentation. The Mission recommends implementing a technological tool to facilitate the submission of expenditure and revenue reports that takes advantage of the extensive use of digital invoicing in Costa Rica.

- Current law sets no cap on campaign expenditures or contributions. The Mission suggests setting individual limits on the contributions that natural or physical persons can make, as well as limits on party expenditures. These limits must be set with technical studies that use as a baseline the electoral campaign costs index, which takes multiple factors into account, including political advertising in the media, signs, print advertising, campaign expenditures, reference prices, etc.

- The woman candidates interviewed by the Mission agreed that the parties tend to prioritize male candidates when distributing public financing resources. The Mission suggests that financing mechanisms be incorporated into law to guarantee woman candidates receive resources to conduct their campaigns.

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D. POLITICAL PARTICIPATION OF WOMEN

1. Introduction

Costa Rica has a robust legal framework and institutions that has enabled significant progress in the political participation of women. Nationally, the application of horizontal and vertical parity combined with rotation of power mechanisms meant that in the 2018 elections, the percentage of women elected to the National Assembly reached a record 45.61%,. In addition to parity provisions, other factors that have contributed to this achievement are a proportional representation electoral system, with closed and blocked party lists; and electoral jurisdiction committed to the advancement of the political rights of women. In this regard, it is worth emphasizing the efforts of the National Institute on Women (INAMU) and the Supreme Electoral Tribunal (TSE) in adopting initiatives, studies, programs, and activities aimed at advancing the rights of women to take part in political life in Costa Rica.

Despite these achievements, certain obstacles persist that prevent achieving full equity, especially at the municipal level. This report looks at the different factors that prevent women from participating on an equal footing in elections, with a focus on three elements: (i) the lack of a horizontal parity mechanisms in municipal elections; (ii) the systemic nature of political-electoral violence against women; and (iii) the lack of other conditions to facilitate women's ability to take part in politics and be elected to real decision-making offices.

2. Electoral system

For governance purposes, the country is divided into provinces, the provinces into cantons, and the cantons into districts. In the February 2, 2020, municipal elections, in each of the 82 cantons, a mayor, a first vice mayor, and a second vice mayor were selected, each with a simple majority of votes.83 Also, the members of each municipality’s deliberative body—that is, municipal council members—were selected. For these elections, the quota and subquota system was used.84

For each of the districts comprising the canton-level districts, a district council president is also elected through a simple majority vote. As regards the council members for each district, they are elected using a quota and subquota system.85 This table summarizes the responsibilities that the law assigns to each elected official

:

83. The Penas Blancas, Monteverde, Colorado, Cóbano, Lepanto, Paquera, Tucurrique, and Cervantes districts

have a different administrative architecture. There, a superintendent (with the same functions as a district mayor) and a vice superintendent are chosen, along with district municipal council members (with the same duties and authorities as municipal council members).

84. Article 134. Municipal Code. https://www.tse.go.cr/pdf/normativa/codigomunicipal.pdf 85. Ibidem.

https://www.tse.go.cr/pdf/normativa/codigomunicipal.pdf

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Table 1: Responsibilities of officials elected at the canton level

CANTON LEVEL

MAYORALTY

Executive official in charge of managing the municipality

Head of municipal agencies

Oversees the organization, operation, coordination, and faithful compliance with municipal agreements, laws, and regulations in general

1ST

VICE MAYORALTY

Performs the administrative and operational functions assigned by the mayor

Replaces the municipal mayor in the event of temporary or permanent absence, with the same

responsibilities and competencies as the mayor for as long as the replacement lasts.

2ND VICE MAYORALTY

Replaces the municipal mayor—when the first vice mayor cannot do so—with the same responsibilities and

competencies as the mayor for as long as the replacement lasts.

COUNCIL MEMBERS

Comprise the municipal legislature

They discuss and weigh matters of interest to the canton and vote on solutions

They set canton priorities and decide on how to allocate the budget, among other things.

Source: Prepared based on electoral law

Table 2: Responsibilities of officials elected at the district level

DISTRICT LEVEL

ADMINISTRATOR

The individual representing each district before the municipality Forms part of the District Council

DISTRICT COUNCILMEMBERS

Collaborate with the municipality on proposing, recommending, and informing the Municipal Council on matters of interest in their district

Propose ways in which to use resources to the Municipal Council

Encourage citizens to actively, consciously, and democratically participate in decisions in their districts


3. LEGAL FRAMEWORK

International conventions and treaties

Costa Rica has adopted a significant number of universal and Inter-American instruments enshrining the right of women to participate in the government and politics in their country, free from

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all forms of discrimination and violence. These instruments protect the rights of women to life, dignity, access to justice, freedom of expression, freedom of association, and access to information, among other things. The following is a list of the main treaties on the subject ratified by Costa Rica:

- American Convention on Human Rights (the "Pact of San José”) - Inter-American Convention against Racism, Racial Discrimination, and Related Forms of

Intolerance - Inter-American Convention against all Forms of Discrimination and Intolerance - Inter-American Convention on the Prevention, Punishment, and Eradication Of Violence

against Women (“Convention of Belem do Pará") - Inter-American Convention on the Granting of Civil Rights to Women - Inter-American Convention on the Granting of Political Rights to Women - Inter-American Convention on Protecting the Human Rights of Older Persons - Convention on the Elimination of All Forms of Discrimination against Women - American Declaration of the Rights and Duties of Man - Universal Declaration of Human Rights - International Covenant on Civil and Political Rights - International Covenant on Economic, Social and Cultural Rights - Additional Protocol to the American Convention on Human Rights in the Area of

Economic, Social, and Cultural Rights (“Protocol Of San Salvador”)

Domestic legislation

The principles of equal protection and nondiscrimination as regards women are enshrined in international law and have become reflected in Costa Rica's domestic legal system. Article 95(8) of the Political Constitution of 1949 establishes that the designation of political party authorities and candidates must be carried out pursuant to democratic principles and free of all gender-based discrimination.86

Nationally, Costa Rica has an advanced electoral legislation that has enabled a notable increase in the political participation of women. Article 2 of the Electoral Code, promulgated in 2009, establishes that all candidate lists must be comprised of 50% men and 50% women,87 alternating on the list. Additionally, in 2016, the Supreme Elections Tribunal (TSE) issued a resolution defining the principle of parity for national legislative elections as enshrined in the Code to extend to the heading of the lists (horizontal parity) in at least three of the seven lists presented by a party.

However, these important steps forward for the legal framework have run into more obstacles to implementation locally. Through resolution 1724-18-2019 of February 2019, the TSE ruled to postpone until the 2024 elections the application of parity to the tops of the lists for multimember bodies: municipal councils, district councils, and district municipal councils. In that same resolution, the Tribunal found that horizontal parity is not applicable to the election of mayors.

4. Pro-equality programs and policies

Costa Rica has robust institutions that, over the years, have demonstrated their commitment to increased equality between men and women. The TSE has been a pioneer on the issue and, through its

86. See Article 95(8), Political Constitution of Costa Rica, available at: https://www.tse.go.cr/pdf/normativa/constitucion.pdf 87. If the number of candidates is odd, the difference between the total men and women cannot be greater

than 1.

https://www.oas.org/dil/esp/tratados_b-32_convencion_americana_sobre_derechos_humanos.htm

http://www.oas.org/es/sla/ddi/tratados_multilaterales_interamericanos_A-68_racismo.asp

http://www.oas.org/es/sla/ddi/tratados_multilaterales_interamericanos_A-68_racismo.asp

http://www.oas.org/es/sla/ddi/tratados_multilaterales_interamericanos_A-69_discriminacion_intolerancia.asp

http://www.oas.org/juridico/spanish/tratados/a-61.html




http://www.oas.org/es/sla/ddi/tratados_multilaterales_interamericanos_A-70_derechos_humanos_personas_mayores.asp

http://www.un.org/womenwatch/daw/cedaw/text/sconvention.htm

http://www.oas.org/es/cidh/mandato/Basicos/declaracion.asp

http://www.un.org/es/universal-declaration-human-rights/

http://www.ohchr.org/SP/ProfessionalInterest/Pages/CCPR.aspx

http://www.ohchr.org/SP/ProfessionalInterest/Pages/CESCR.aspx



https://www.tse.go.cr/pdf/normativa/constitucion.pdf

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gender unit, has implemented a number of policies favoring equality, gender equity, and nondiscrimination on the basis of sexual orientation and gender identity.88 In the run-up to the 2020 elections, the Tribunal also focused on female candidate training. Through its "Mujeres en Ruta” (women on the move) program, it has trained female political leaders on issues such as democratic institutions, political communication, general municipal elections issues, and mechanisms of accessing electoral justice.

With the collaboration of the United Nations Development Program (UNDP), the National Institute on Women (INAMU), and the Costa Rican Network of Women Municipal Leaders (Recomm), the TSE organized a series of events to promote the election of women to political office in the 2020 municipal elections.89 A number of candidates interviewed by the Mission said these spaces have been fundamental for establishing contacts and alliances between them.

Likewise, the UNDP and the INAMU have fostered the “La Igualdad Abre Caminos” (equality paves the way) campaign to help more Costa Rican women hold the office of mayor. This initiative promoted parity and disseminated the benefits of the political participation of women, while also raising awareness on the problem of political violence. The INAMU, the Women's Political Form, and the Recomm told the Mission of the importance of having more funding to strengthen the programs for training both woman candidates and woman community leaders.

Despite the efforts of Costa Rican institutions, it is clear that certain obstacles persist to the political participation of women. The factors that must be taken into account include a legal framework that, at the local level, has not been effective at promoting women's access to election to executive offices; a notable resistance among political parties to promoting new female leadership; a lack of financing opportunity; and the phenomenon of gender-based political violence. All these factors will be addressed in this report.

5. Participation of Men and Women in the Elections Observed

Women’s participation as voters

Women's exercise of their right to vote was recognized in Costa Rica in its 1949 Constitution. Since then, the percentage of women registered to vote and participating on election day has steadily increased. According to the data provided by the TSE, of the 3,398,338 voters registered for the municipal elections, 1,707,763 were women (50.2%). The following table shows the electoral roll gender breakdown by province.

Table 3: Electoral roll disaggregated by province and gender

Province Total Men Women

San José 1,139,884 554,974 584,937

88. See TSE, Institutional Policy on Gender Equality and Equity (2008), https://tse.go.cr/pdf/normativa/igualdadyequidaddegenero.pdf; TSE, Policy on Nondiscrimination on the

Basis of Sexual Orientation and Gender Identity (2016); https://www.tse.go.cr/pdf/normativa/politicadenodiscriminacion.pdf 89. UNDP Costa Rica, Candidatas en inédito encuentro sobre la violencia contras las mujeres en la política, en

las redes y herramientas para un liderazgo transformador, December 3, 2019, available at: https://www.cr.undp.org/content/costarica/es/home/presscenter/pressreleases/2019/candidatas-en-

inedito-encuentro-sobre-la-violencia-contras-las-m.html

https://www.cr.undp.org/content/costarica/es/home/presscenter/pressreleases/2019/candidatas-en-inedito-encuentro-sobre-la-violencia-contras-las-m.html

https://www.cr.undp.org/content/costarica/es/home/presscenter/pressreleases/2019/candidatas-en-inedito-encuentro-sobre-la-violencia-contras-las-m.html

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Alajuela 657,175 331,017 326,158

Cartago 399,475 198,274 201,201

Heredia 344,748 169,424 175,322

Guanacaste 250,585 126,246 124,339

Puntarenas 322,594 164,936 157,658

Limón 283,879 145,731 138,148

Total 3,398,338 1,690,575 1,707,763

Source: Prepared using information from the TSE (As of November 2, 201990

)

Women’s participation as candidates

Article 2 of the Electoral Code establishes that delegations, candidate lists, and other similar groupings must be comprised of 50% women and 50% men, listed alternately (vertical and alternating parity). In cases in which the lists are odd, the difference between the total men and women cannot be greater than 1.91

To analyze the scope of application of the parity principal in municipal elections, on February 27, 2019, the Supreme Elections Tribunal issued resolution 1724-18-2019.92The final objective of the Tribunal was to determine if gender parity should be extended to the tops of the lists, and if so, to which offices.

For plurinominal offices (municipal councils, district councils, and municipal district councils), the magistrates concluded that as it was being applied, the parity and alternation system was not efficiently guaranteeing women's participation because in most cases, political organizations continued to put men at the top of the lists. Consequently, the Tribunal established that not only must the parties make each candidate list 50% of each sex, but they must do so for the tops of the lists belonging to a single precinct (horizontal parity).

However, in that same ruling, the Supreme Elections Tribunal found that the new provision would not apply until the 2024 elections. It was the magistrates’ understanding that the implementation of horizontal parity required parties to readjust their internal mechanisms for selecting candidates, and that this could not be carried out in the time left before the 2020 elections.

As regards the uninominal offices, the TSE resolution established that parties would not be required to put forward an equal number of men and women in elections for mayor, administrator, and superintendent. The majority opinion stated that, in this case, application of horizontal parity would restrict the right to participate in government of half the electorate in each precinct: since there was only one position to be had, if the party resolved that the district would have to put forward a woman candidate, the men would be excluded, and vice versa.

90. The final electoral roll was modified as a result of last-minute purges carried out to remove people who

had died after the finalization date. 91. Electoral Code 2009, Article 2, https://www.tse.go.cr/pdf/normativa/codigoelectoral.pdf 92. TSE Resolution 1724-18-2019, February 27, 2019, https://www.tse.go.cr/juris/electorales/1724-E8-2019.html?zoom_highlight=1724%2DE8%2D2019

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The magistrates endorsing the resolution also concluded that the application of horizontal parity to uninominal offices would impact the right to reelection, defined by the Constitutional Chamber as a fundamental right. According to the majority: “If horizontal parity is applied to uninominal offices, and in a certain precinct, a party must designate a person of the opposite sex of the person currently holding the office in representation of the party, it will be impossible for that individual to run for office again. This scenario would directly impact the right to participation and absolutely hollow out that individual’s right to seek reelection.”

The TSE’s resolution also included a minority opinion, by Vice President Eugenia María Zamora Chavarria, arguing that it was possible to require parity of political parties for the candidates they put forward for the mayors, administrators, and superintendents.93 The magistrate argued that the right to reelection is not per se in conflict with horizontal parity in uninominal offices, as the parties are the ones who must decide on the mechanisms used to harmonize the two principles.

The Tribunal’s vice president also concluded that, far from preventing the population from exercising its right to political participation, the application of horizontal parity sought to remove obstacles that it had been proven prevent women from accessing directly-elected offices. The magistrate concluded by noting that in view of its international obligations, the Costa Rican State must prohibit any conduct and strike down any law that, without intending to, end up discriminating in their result, as in the case of a candidacy arrangement that did not result in the equal participation of the sexes.

The Mission observed that the TSE resolution and the decision to not apply horizontal parity to single candidate offices was extremely controversial. On March 19, 2019, deputies from the Citizen Action Party (Partido de Acción Ciudadana, PAC) brought suit94—with the National Institute of Women acting as a intervenor—requesting that resolution 1724-18-2019 be declared partially unconstitutional.95 In this same regard, the Office of the Attorney General of the Republic (PGR) has stated publicly that it views the Tribunal’s decision as unconstitutional.96 As of election day, the suits filed before the Constitutional Chamber remained pending resolution.

The Mission notes with concern the effects of the failure to apply horizontal parity to uninominal offices. According to figures provided by the TSE and the National Institute on Women (INAMU), 692 candidates ran for mayor: 533 were men (77%) and only 159 (23%) were women. In 11 cantons, all the candidates registered were men.

The following table provides disaggregated information on the candidates registered for all the offices in play. It can be noted that, although the current legal framework has enabled women to compete for plurinominal offices, the most influential offices at the local level—such as mayoralties—remain reserved primarily for men.

Table 4: Breakdown of candidates by sex in the 2020 municipal elections

93. TSE Resolution 1724-18-2019, sections III and IV. 94. Constitutional Challenge before the Constitutional Chamber, Deputy Nielsen Pérez and other deputies,

regarding TSE Resolution 1724-18-2019, received March 29, 2019. 95. The Mission received information indicating that subsequently, two more constitutional challenges were

filed against the TSE resolution, one by a group of parliamentary women and another by Haydeé Hernández.

96. El Mundo, Costa Rica, PGR da la razón a las diputadas del PAC sobre paridad horizontal en elecciones municipales, October 31, 2019, https://www.elmundo.cr/municipales/pgr-da-la-razon-a-diputadas-del-pac-sobre-paridad-horizontal-en-elecciones-municipales/



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The results of the February 2, 2020, municipal elections represent a setback with regard to the progress described. Effectively, according to figures from the official count, for the 2020-2024 term, women hold only 8 of the 82 mayor’s offices in the country (9.7%). This is the lowest percentage of women elected to these positions since the 2002 elections.

Table 5: Number of women and men elected mayor in municipal elections, 2002-2020

Men and women elected mayor, per election

2002 2006 2010 2016 2020

Men Women Men Women Men Women Men Women Men Women

74 7 72 9 71 10 69 12 74 8


These numbers clearly indicate that, as applied, current laws do not guarantee the inclusion of women in municipal public offices on equal footing.

Competition conditions

Along with deficiencies in the application of the parity law, other factors persist in Costa Rica that affect the political participation of women. First, as mentioned, parties are resistant to giving woman candidates a prominent place on the lists or the opportunity to compete for the more influential offices. Academics and activists interviewed by the Mission agreed on the need to transform internal party culture, for which the strengthening of the gender units within the different parties is viewed as essential.

Another factor affecting the participation of women under equal conditions is the lack of financing for woman candidates. In a number of interviews with women from different parties, they pointed to the need for financing mechanisms to guarantee that they receive earmarked resources to conduct their campaigns. The interviewees agreed that when the parties distribute their resources, they tend to prioritize the male candidates, in the understanding that they were more likely to win.

Indefinite reelection is another factor that limits women's opportunities to access decision-making spaces. Sitting mayors, the majority of which are men, have the advantages of any government authority: greater recognition by the electorate and more campaign resources. The result is an

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imbalance compared to their challengers, especially when they are women, who—as mentioned—face greater difficulties financing their campaigns and gaining recognition.

Lastly, there are structural factors that must be addressed. In Costa Rica, as in other countries of the region, traditional gender roles still persist, along with negative stereotypes about women who become social and political leaders. Women also continue to carry the burden of care in the home, which prevents them from actually dedicating the necessary time to politics without external or consistent support.

Political-electoral violence

In Costa Rica, as in other countries in the region, gender-based political violence is an issue that persists and particularly affects women who participate in politics at the municipal level. Academics, candidates, and representatives of government agencies and civil society organizations whom the Mission interviewed expressed concern at the different forms of discrimination and pressure to which women politicians at the local level have been subjected.

Denigration, harassment, acts of sexual, physical, and psychological violence, obstacles to performing their duties, and sexist media coverage were some of the issues described by the people who met with the Mission. The interviewees also agreed that the use of social media to smear woman candidates was one of the most widespread forms of violence.

The Mission was informed of the specific situation of woman vice mayors and their exposure to political-electoral violence. As a result of the way in which parity rules are currently applied, woman vice mayors almost always work with male mayors, who—as established in the municipal code,97 are the ones who define the responsibilities of their vices. This exposes them to arbitrary and biased definitions of their functions. In many cases, woman vice mayors are relegated to administrative work or jobs such as fetching coffee or taking care of the municipal daycares and prevented from participating in public decision-making.

The Mission also found that the Costa Rican legal framework does not codify gender-based political violence as an offense and provides for no judicial remedies to address it. According to the information received, the TSE has admitted related complaints through the route of electoral amparo, but these complaints have not been classified as electoral political violence.

6. Recommendations

- The Mission confirmed that, as applied, current laws do not guarantee the inclusion of women in municipal public offices on equal footing. It recommends revising current provisions and adopting new measures to enable women to effectively access decision-making offices, both nationally and at the municipal level.

- The Mission observed that the training spaces offered by the TSE and by INAMU and Recomm have been praised highly by participants. It recommends strengthening and expanding training programs as a platform to provide women interested in running with the tools they need to be successful in politics. Another suggestion is to foster the building of networks of support for woman candidates and leaders.

- The woman candidates interviewed by the Mission agreed that the parties tend to prioritize male candidates when distributing public financing resources. The Mission suggests that financing

97. Article 14. There shall be two municipal vice mayors: a first vice mayor and a second vice mayor. The first

vice mayor shall perform the administrative and operational functions assigned by the mayor.

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mechanisms be incorporated into law to guarantee that woman candidates receive resources to conduct their campaigns.

- The Mission found that the Costa Rican legal framework does not codify gender-based political violence as an offense and provides for no judicial remedies to address it. It thus recommends moving forward in the drafting of a law on political-electoral violence against women, pursuant to Costa Rica’s obligations under international law to prevent, investigate, punish, and provide reparations for all types of violence and discrimination against women. The process leading to the passage of this bill should be preceded by participatory and inclusive spaces provided to women who were victims and affected by incidents of political-electoral violence.

- The Mission also observed that the channels through which actions of political electoral violence can be reported are not clearly established. It suggests defining the mechanisms available to victims and disseminating information on their operation and use to women involved in local politics in Costa Rica. It also urges the authorities to offer the specific and ongoing training programs to women and men involved in local politics on the fundamental importance of preventing and punishing electoral violence.

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E. ELECTORAL JUSTICE

1. Introduction

As noted at various points over the course of this report, Costa Rica’s electoral system is run by the Supreme Elections Tribunal (TSE), the constitutional body that performs all administrative and jurisdictional tasks related to elections. The TSE’s main responsibilities are as follows:

a. On administration of elections, the organization, direction, and oversight of actions related to the vote;

b. On registry and records, the compilation of the voter roll and voter list, as well as issuing identification cards;

c. On jurisdictional matters, the application of electoral law by ruling on the different challenges provided for by law.

d. On training, the promotion of democratic values through the Institute on Democracy Research and Training.

During the various meetings the experts held during the pre electoral stage while deploying the Mission, it was observed that the Supreme Elections Tribunal (TSE) is highly trusted by political parties, civil society, and State institutions. The Mission was also pleased to confirm that the Tribunal had made progress toward implementing the recommendations made by the OAS during previous elections, reflecting a commitment to improve electoral processes.

Despite this progress and the strengths of the Costa Rican electoral justice system, the 2020 municipal elections showed that the TSE still faces a number of challenges. This report looks at these challenges and offers a series of recommendations that seek to contribute to the Tribunal being able to continue to do its work effectively and in a trustworthy manner.

2. Legal framework

The electoral legal framework98 is comprised of the following laws, cited by rank:

- Political Constitution - Current treaties and conventions, approved by the Legislative Assembly - Electoral Code - Rules, manuals, and other regulations issued by the TSE on administrative, labor, and

jurisdictional matters - Bylaws of the political parties - Other provisions subordinate to party regulations and statutes.

In addition to this list, for municipal elections, there is the legal framework established with the Municipal Code, which regulates the integration of local authorities.

3. Justice system

98 Article 3 of the Electoral Code

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The objective of Costa Rica's electoral justice system is to ensure the legality of electoral processes. The law grants the competent authorities the power to review all electoral actions and punish conduct that violates the law.

For analytical purposes, electoral justice responsibilities can be divided into two categories:

A) Resolution of electoral conflicts

The TSE exclusively and exclusionarily resolves actions brought against electoral processes. Costa Rican law provides for seven types of challenges,99 all regulated by the Electoral Code. Of the seven, the only one that is not handled at the merits level by the TSE itself is the challenge of political party assembly agreements, which is filed before the political party’s own bodies and only reaches the Tribunal on amparo appeal.100

B) Investigation of unlawful electoral acts

The TSE’s Office on Political Party Electoral Registry and Financing is the office that investigates—based on either complaints, official reports, or ex oficio—and punishes electoral violations, such as the extemporaneous publishing of advertising and polling, irregular receipt of contributions, illegal dissemination of advertising and opinion poll results, improper electoral canvassing practices, failure of public officials to perform their duties, and improper possession of electoral documentation. This conduct is punished with fines of between 2 and 20 monthly minimum wages and decisions can be appealed to the TSE.

It should be noted that in contrast to electoral infractions, electoral crimes are not investigated by the Supreme Electoral Tribunal but by criminal courts. Articles 271 through 281 of the Electoral Code classify a broad array of conduct as crimes, including: identity theft of a committee member, double voting, and making political donations through third parties to avoid the corresponding controls, among other things. Such actions are punished with between two months and six years in prison, and if the violator is a public official, the individual is dismissed and banned from holding public office for a period of two to eight years.101

4. Specific characteristics of electoral justice

4) a. Independent and impartial tribunal

Composition

In normal times, the TSE is comprised of three sitting judgeships and six alternates, appointed by the Supreme Court of Justice.102 When national and municipal elections are held, the plenary is expanded to five judgeships, with two alternates.

99. Along with these, there is another means of challenge established by the TSE through its jurisprudence in

judgment 6290-E6-2011, called a writ of reconsideration. 100. There is another means of challenge established by the TSE through its jurisprudence in judgment 6290-

E6-2011, called a writ of reconsideration. 101. Article 283 of the Electoral Code. 102. By the vote of no fewer than two thirds of its total members.

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Composition of the Supreme Elections Tribunal for the 2020 municipal elections103

The alternate magistrates for these elections were Fernando del Castillo Riggioni, Zetty María Bou Valverde, Mary Anne Mannix Arnold, and Hugo Picado León.

From an analysis of the legal framework, it is noted that the requirements for forming part of the Tribunal are based on criteria of suitability and professional experience. According to current law, to hold the office of magistrate, one must:104

- Be born a Costa Rican citizen, - Belong to the secular state, - Be older than 30, - Hold a law degree and have professional practice experience of a minimum of 10 years,

or 5 in the case of working as a judge.

Autonomy

In its capacity as a constitutional body, the TSE is independent of the other branches of government and executes its mandate with full autonomy.105 It sets its budget annually, which is then added to the regular budget bill that the President of the Republic submits for the approval of the Legislative Assembly.

103. During a regular session, the Tribunal is comprised only of President Magistrate Luis Antonio Sobrado

González, Magistrate Eugenia María Zamora Chavarría, and Magistrate Max Alberto Esquivel Faerron, who hold the office of sitting magistrate.

104. Article 159 of the Political Constitution. 105. Article 303 of the Electoral Code

Luz de los Angeles

Luis Diego Brenes

Villalobos

Luis Antonio Sobrado González,

President

Max Alberto

Esquivel Faerrón

Eugenia María Zamora Chavarría

Vice Chair:

Retana Chinchilla

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The Constitution indicates that the TSE budget proposal can be amended by the Office of the National Budget, the head of which—appointed by the executive—can reduce or eliminate line items.106 However, Article 177 of the Constitution establishes that the expenses budget by the Supreme Elections Tribunal to ensure the right to vote cannot be rejected.

Guarantees on the exercise of the jurisdiction

TSE magistrates are appointed to a single 6-year term. Pursuant to current law, every two years, a sitting magistrate and two alternates are replaced. It is the Mission's view that the staggered replacement in the appointment for a term that is longer than that of popularly-elected offices (four years) contributes to ensuring the selection of the magistrates is not influenced by the political electoral environment.

The working conditions and compensation of TSE magistrates are the same as those of the members of the Supreme Court of Justice.107 Also, they enjoy the same privileges and immunities as the members of the other main branches of government.108 These guarantees contribute to the judges being able to perform their roles independently and without fear of pressure.

Nature of the Tribunal’s decisions

Pursuant to Article 102 of the Political Constitution, the TSE has the exclusive, obligatory, and exclusionary competence to interpret electoral law and to resolve related legal challenges.109 The Electoral Code also establishes that the Tribunal’s jurisprudence is binding erga omnes110 (for everyone) and that its decisions are not appealable.111

The Constitutional Chamber of the Supreme Court of Justice has found that, as the body in charge of conducting constitutional oversight of laws, it has the authority to review TSE decisions. According to the criteria it established, the Constitutional Chamber has exclusive authority to conduct constitutional review of the TSE judgments that offer interpretations of laws,112 that constitute legal jurisprudence,113 or that derive from advisory opinions.114 In performing this interpretive work, the

106. Article 177 of the Political Constitution. 107. Article 100 of the Political Constitution. 108. Article 101 of the Political Constitution. 109. Articles 102, subparagraph 3) of the Constitution; 12, subparagraphs c) and d); and 219 of the Electoral

Code. 110. Article 3 and 221 of the Electoral Code. 111. Article 103 of the Constitution. 112. In aforementioned Resolution 19-004707-0007-CO, the Constitutional Chamber added "It is different

when what is at issue is the interpretation of legal provisions applicable to elections, as in these cases, the jurisprudence established or precedent set could violate Constitutional law, over review of which the Constitutional Chamber has a monopoly, whether through the exclusive and exclusionary competence to annul and expunge a law or declare an omission unconstitutional.”

113. In resolution 16070–2015 of October 14, 2015, the Constitutional Chamber found that the erga omnes link between the TSE’s interpretations and the advisory opinions “cannot be understood to include the Constitutional Chamber, nor the Legislative Assembly, as in both cases—the Assembly in its work as a legislature and the Chamber in its role as reviewer of legislation—require, for the proper exercise of their functions, sufficient authority to revise the legal provisions issued by the Tribunal. Thus, performing a literal reading would deprive the chamber of the competence with which it is endowed by article 10 of the Constitution, which cannot be understood to be modified by this or any other inferior law."

114. In its resolution admitting case file 19-004707-0007-CO, the Constitutional Chamber concluded: “Today, these are the two elements needed to admit an action brought against a resolution from the electoral

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Constitutional Chamber has annulled—in rulings on constitutional challenges—a number of TSE decisions, both advisory opinions115 and resolutions.116

Certain criteria set forth by the Chamber have even established that TSE rulings can be reviewed by lower courts. In its ruling on case file 13-005624-1027-CA, the Constitutional Chamber found that two TSE resolutions that—on the recommendation of the Office of the Comptroller—had cancelled the credentials of municipal officials117 could be reviewed by contentious administrative courts.118

The Mission notes that the jurisprudential line of reasoning taken up by the Chamber leads to a clash of competencies between it and the TSE. It likewise notes that by establishing a route for challenging the Tribunal’s decisions, its role as the exclusive and exclusionary interpreter of electoral law could be weakened.

Conventional and constitutional oversight

Constitutional oversight is the responsibility of the Constitutional Chamber of the Supreme Court of Justice,119 while the Supreme Elections Tribunal has the authority to interpret electoral law, exclusively, obligatorily, and with effects erga omnes.120 Conventional control is also exercised by the TSE, in terms of both interpretation121 and failure to apply them.122

jurisdiction: that the jurisprudence is being challenged, that the jurisprudence is established in at least three judgments, or that the jurisprudence has been overturned through advisory opinions.”

115. Judgment casefile 15-005481-0007-CO of October 14, 2015, in which the Constitutional Chamber found as follows: “The action is granted, and therefore, the jurisprudence of the Supreme Elections Tribunal set through petition 3671-E8-2010 and reiterated, with no changes, in other petitions including 4303-E8-2010; 6165-E8-2010; 784-E8-2011, and 3636-E8-2014, which affirms that the correct interpretation of articles 2, 52 subparagraphs ñ) and o), and 148 of the Electoral Code requires the recognition of a lack of an obligation for political parties to apply the parity rule to tops of candidate lists—so-called “horizontal parity”—with the aim of achieving equality throughout the lists of candidates up for popular election is hereby annulled on the grounds of unconstitutionality.”

116. Judgment of casefile 17-003086-0007-CO of July 17, 2019, in which it was resolved: “The action is admitted. Consequently, the Supreme Elections Tribunal resolutions number 8455-E9-2016 of 10 am on December 23, 2016; and 860-E9-2017 of 10 am on January 27, 2017, are annulled on being found unconstitutional. Likewise, in view of this finding of unconstitutionality, the process in the framework of which these resolutions were adopted, identified as ‘Request to collect signatures presented by Alex Solís Fallas to hold a citizen-initiative referendum on the bill entitled ‘Law Establishing a Constitutional Assembly’” is hereby null and void.”

117. Article 259 of the Electoral Code. 118. In its ruling on casefile 13-005624-1027-CA, of June 19, 2014, the Constitutional Chamber found that “the

administrative procedures followed by the Office of the Comptroller General of the Republic are susceptible to review by administrative courts. Considering that the aim is also to annul provisions of the Supreme Elections Tribunal, specifically resolutions 6578-M-2010 and 7799-M-2012 of the Supreme Elections Tribunal that ended up ratifying recommendations of the Office of the Comptroller General of the Republic, its origin is directly related to the analysis of the Comptroller resolutions; therefore, whether or not it is eventually overturned; based on this, the grounds for reviewing whether execution by the Supreme Elections Tribunal is admissible are hereby settled. Based on the principle that the secondary follows the primary, this Chamber concludes that all the claims in this process must be analyzed together before the administrative jurisdiction.”

119. Article 10 of the Constitution. 120. Articles 102, subparagraph 3) of the Constitution; 3 and 12, subparagraph c) of the Electoral Code. 121. In judgment 1337-E1-2015, the TSE found as follows: “This Tribunal views it pertinent to note that,

effectively, as the appellant has stated, it is required to—and certainly does—exercise control not only of

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From this, one positive aspect that can be observed is that the law provides for comprehensive constitutional and legal review over all electoral actions and laws. Is also underscored that the resolutions issued by both bodies have effects erga omnes,123 contributing to the legality of the electoral process.

The Mission took note that the constitutional challenges through which the Constitutional Chamber exercises its oversight authority are governed by regular law, which does not set deadlines for addressing them. Thus, there is no guarantee that the challenges will be resolved by the time of the commencement of the electoral process. This could cause significant uncertainty regarding the rules applicable to the process.

As regards the requirements for admitting a constitutional challenge, the EOM found that as a general rule, there must be a challenge pending resolution. That is, the constitutionality of a provision can only be called into question if there is a concrete case whose judicial resolution depends on whether the provision is valid or not. Exceptionally, this requirement is eliminated in cases in which other rights are affected.124 Regarding the latter, the Constitutional Chamber has found that they can be defended collectively or individually.125 This makes for broad standing, fostering constitutional control over the provisions.

4) b Access to justice

In Costa Rica,126 the challenge process offers eight remedies, some of which are always admissible and some only during elections. The TSE has competence to rule on these, with the exception of appeals of assembly agreements of political parties in the process of being formed and registered. In this case, the one taking action at the merits stage is an internal party authority, and its resolution can be appealed before the TSE via an electoral appeal remedy.

The following table describes existing remedies, deadlines for filing them, and those with standing to file them.

the constitutionality but also the conventionality of the actions taken by the different public authorities and political parties that could have affected the fundamental character of the political electoral rights of citizens. This authority to exercise conventionality control—exclusively and exclusionarily over electoral matters, pursuant to the founding constitution—rests in the fact that, as the highest authority on electoral matters, it is the body naturally called on to defend fundamental rights of this type, using as its legal parameter not only the Political Constitution and the principles informing it but also the instruments of international human rights law signed and ratified by the country, an exercise that, in itself, entails such conventionality control.”

122. For example, in judgment 1377-E6-2018, the TSE examines the conventionality of article 34(d) of the General Internal Control Act.

The TSE also exercised conventionality control over the amendment to the Regulations of the Civil Status Registry and the Regulations of the National Identification Card with New Characteristics to admit the right to change one’s name based on gender identity.

123 Articles 13 of the Constitutional Jurisdiction Act and 3 of the Electoral Code. 124 Article 75 of the Constitutional Jurisdiction Act. 125 In judgment 93-3705, the Constitutional Chamber found that “diffuse interests are doubly applicable, as

they are at the same time collective—on being held in common by all—and individual, because they can be invoked as such.

126 Title V of the Electoral Code, articles 219 to 270.

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Table 1: Means of challenge

Means of challenge

Purpose of challenge

Standing Deadlines Specific rules

Writ of electoral amparo

127

Effective protection of political-electoral rights and liberties.

Admissible against any action or

omission attributed to a political party or

subject, public or private, that by fact

or law is in a position of power.

Any individual can file one on

their own behalf or on behalf of a

third party, in which case it

must be ratified.

Filing:

- Normally: 2 months

- During the candidate selection period: 3

working days

Regulated by the rules set forth by the

Constitutional Jurisdiction Act for the writ of

amparo, as well as by the Rules of Procedure for

receiving and processing electoral writs of amparo outside ordinary working

hours and workdays.

Exhaustion of remedies not required.

Does not have the effect of suspending laws, but can suspend actions to

apply them.

Challenge of assembly

agreements of political parties in

the process of being formed and

registered128

Assemblies for forming or

registering political parties

Any of the of individuals

taking part in the assemblies

None

In the merits stage, ruled on by the provisional executive, and upon

appeal, by the Electoral Registry; if it involves

agreements of the higher assembly, it is resolved directly by the Electoral Registry; in both cases,

appeals are brought before the TSE.

Motion to nullify party

agreements129

Legal oversight mechanism of the

actions of party bodies regarding

processes of candidates standing for popular election or the selection of

internal authorities.

Any individual with a

subjective right or legitimate

interest

Filing: 5 working days

Resolution:

Once the action has

been answered or

the corresponding

deadline (3 working days)

has expired

The suit must indicate the act challenged and aggravating factors.

Requires exhausting party-level forums.

127. Article 225 to 231 of the Electoral Code. 128. Article 232 of the Electoral Code. 129. Article 233 to 239 of the Electoral Code.

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Means of challenge



Remedy of electoral appeal

130

Electoral acts issued by:

- Electoral Registry,

- Electoral councils,

- Officials in charge of authorizing

activities in public places,

- Cantonal police delegations,

- Any other TSE official or

dependency with decision-making authority on the

matter or any other individual

cooperating in the exercise of electoral

functions

Any individual with a

subjective right or legitimate

interest

Filing:

3 days.

When filed against a finding that the remedy itself is inadmissible, the

rules of the Civil Procedural Code are

applicable.

No suspensive effects, but measures can be

handed down to prevent damages that would be difficult or impossible to

redress.

Allows for steps in furtherance.

Suit to nullify elections results

131

I) Acts of a meeting that formed or met illegally or in a place

or time different than what was

established by law;

II) Roll, minutes, document, registry, tally, or count that is

obviously not a faithful expression of

the truth, and

III) Vote and election of an individual who does not meet the legal requirements

Any individual who has voted

Filing:

3 days.

Resolution: Before the

TSE declares a winner in the

corresponding election

The suit must specify the flaw alleged and the

supporting provision, and must provide evidence.

130 Article 240 to 245 of the Electoral Code. 131. Article 246 to 252 of the Electoral Code

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Means of challenge



Cancellation or annulment of credentials

132

Regarding:

I) popularly elected municipal officials (mayor, municipal council member, district council

president, district councilmember, municipal district

councilmember) for resignation,

absence, violation of the Superior System

for Control and Oversight of the

Public Treasury, and impacts on the shoreline area,

II) members of the main branches of

government (president, vice presidents, and

deputies) on grounds established in the Constitution

133

or resignation.

Any interested party

The suit must indicate the precise ground for

cancellation and submit evidence

For members of the main branches of government,

the TSE must ask the Legislative Assembly to

lift immunity.

Suit for bias or political

activism134

Brought against public officials who

are biased or participate in

political-electoral activities when prohibited from

doing so.

Political parties and physical persons with knowledge of

the facts

The allegation is submitted in writing,

including the name and status of the

complainant, the facts, the official being

reported, names of witnesses (where applicable), other

relevant circumstances, the place to send

notifications, date, and signature. Evidence must

be attached.

Processing is the responsibility of the

132. Article 253 to 261 of the Electoral Code 133. Articles 111, 112 (members of the Assembly), 149 (President of the Republic or vice presidents). 134. Article 265 to 270 of the Electoral Code

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Means of challenge



Electoral Inspectorate, and the TSE is responsible

for resolution.

If the official reported has immunity, the TSE must

ask the Legislative Assembly to lift it.

Remedy of reconsideration

135

Resolutions issued by the TSE’s Specialized

Section136

in case files to cancel or annul credentials and allegations of

bias or political activism

Filing:

8 days.

The brief must describe the errors considered

committed in the ruling, provide grounds, and,

where appropriate, additional evidence


4) c Just and effective process

Deadlines

Costa Rican law does not set specific deadlines for resolving various types of challenges, with the exception of the writ of nullification of electoral results, in response to which the Tribunal must issue a judgment prior to declaring the results of the election.137As the EOM/OAS observed in 2018, thus far, the lack of deadlines has not been cause for concern as a result of a lack of litigiousness surrounding the processes and the extraordinary quickness with which the Supreme Elections Tribunal resolves the issues brought before it.

The Mission was informed that, from the moment the elections were announced, on October 2, 2019, until February 11, 2020, a total of 211 challenges were filed. As has been typical, the TSE issued judgments very quickly: within an average of 16 days.

135. In judgment 4934-E6-2011, of October 25, 2011, the TSE established the remedy of reconsideration in

contentious electoral matters involving sanctions, and application of a criteria of providing safeguards in order to respect the right to appeal punishments handed down in electoral processes.

136. The Specialized Section is comprised permanently of three alternate magistrates, meaning their resolutions can be reviewed by sitting magistrates in response to remedies of reconsideration.

137. With regard to deadlines, the Electoral Observation Mission found during the 2018 general elections that the TSE issues resolutions quickly, in approximately 25 days. However, it recommended considering establishing specific deadlines by law for electoral resolutions.

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Table 2: Challenges filed in the framework of the electoral process.

1. Writ of electoral amparo 36

2. Motion to nullify 3

3. Electoral appeals 99

3. Cancellation of credentials 9

4. Suit to nullify 8

Matters brought before the Specialized Section

5. Cancellation of credentials 6

6. Political activism 31

Total 192

Other case files

Liquidation of expenses 14

Consultations and interpretations 5

Grand total 211

Source: Prepared using the database provided by the TSE

Regulation of procedural aspects

The Mission observed that the electoral laws have gaps as far as the regulation of a number of procedural aspects. Effectively, there is no list of evidence or rules for assessment thereof. Likewise, there are no rules governing the processing of case files by the magistratures: no deadlines or terms have been set for requirements or admissibility. The law also fails to establish grounds on which challenges would be found inadmissible.

Additionally, it was noted that on certain issues, the Electoral Code refers to other laws;

- For notifications, the Judicial Notifications Act is applicable,138 as is the Regulation on notifying political parties via e-mail.

- Electoral amparo is regulated by the Constitutional Jurisdiction Act. - The electoral appeal of denial of admissibility of the appeal itself is regulated by the Civil

Procedural Code. - Procedures to cancel or annul credentials and allegations of bias or political activism are

regulated by the Rules of Procedure of the Supreme Elections Tribunal’s Specialized Section, which is in charge of lower court rulings on contentious electoral matters involving sanctions.

- The writ of reconsideration is regulated by the General Public Administration act and by the Rules of Procedure of the Supreme Elections Tribunal’s Specialized Section.

138.Article 224 of the Electoral Code.

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The Mission concludes that this statutory scattering could produce confusion among those taking part in the process as to the laws applicable to each procedure.

4). d Management and transparency of electoral justice

The Mission observed that the TSE’s webpage allows people to look up electoral law and all the resolutions it has issued. The same site also includes judgments considered relevant, which are classified quickly and simply, along with the judgments from the Constitutional Chamber related to electoral matters.

The TSE page also provides access, through its reports, to statistics on the number of judgments it issues per year.

5. FINDINGS AND RECOMMENDATIONS

- The Mission observed that the law applicable to challenges is dispersed among a variety of statutes, and that some procedural aspects have not been properly regulated. With the aim of providing absolute clarity as to defense remedies, the Mission recommends that progress be made toward issuing procedural rules applicable to challenges by establishing a list of evidence that would be admissible, criteria for assessment thereof, rules for processing the case files before the magistratures, and grounds for denying admissibility of each of the remedies.

- The Mission has observed that Costa Rican law does not set deadlines for resolving electoral conflicts. It reiterates the recommendation it made in 2018 on the need to add specific deadlines to the law for resolving the different remedies sought.

- Under the current institutional arrangement, the executive branch can—through the National Budget Office—reduce or remove any TSE budget line item other than those related to ensuring the effectiveness of the vote.The Mission reiterates the need to discuss the possibility of the Tribunal receiving greater budgetary autonomy.

- The constitutional challenges through which the Constitutional Chamber exercises its oversight authority are governed by regular law, which does not set deadlines for addressing them. In order to provide greater certainty in conducting the process, the Mission recommends setting a deadline or priority for resolving constitutional challenges to electoral law to ensure they are resolved prior to the electoral processes.

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ANNEX

Mission members

1 1 Juan Carlos Galindo Colombia Jefe de Misión M

3 2 Gerardo de Icaza México Director DECO M

4 3 Brenda Santamaria Argentina Jefa Sección Observación DECO F

5 4 Daniel Tovar Venezuela Subjefe M

6 5 Martín Ferreiro Argentina Coordinador General / Metodologías M

8 6 Diego Páez Colombia Oficial de Prensa M

9 7 Gerardo Sánchez México Organización Electoral M

10 8 Alex Bravo Estados Unidos Tecnología Electoral M

14 9 Rafael Vargas Colombia Financiamiento Político-Electoral M

15 10 Rosa Celorio Estados Unidos Género F

16 11 Elizabeth Valderrama México Justicia Electoral F

30 12 Milagro Martínez El Salvador Representante SG/OEA Costa Rica F

Grupo Base

DECO00051E04

ORGANIZATION OF AMERICAN STATES ELECTORAL EXPERTS … · 2020. 6. 17. · Department of Electoral Cooperation and Observation (DECO) of the Secretariat for Strengthening Democracy

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