require the appellant to correct his substantiation if it found this to be insufficient.
Furthermore, former article 449 established that “evidence may be offered when the
remedy is based on a defect of procedure or when it is alleged that an act was executed
contrary to what was indicated in the proceedings, the record of the debate, or the
judgment.”
79.
In the case of the procedure for the review of final judgments, at the time of the
facts, article 408 of the Code of Criminal Procedure established that this was admissible
in the following situations:
a)
When the facts held to be the grounds for the sentence are irreconcilable with those
established by another final criminal judgment.
b)
When the judgment has been founded on false evidence.
c)
When the judgment has been delivered as the result of malfeasance in office, bribery,
violence or any other offense or fraudulent machination, the existence of which has been
declared in a subsequent final ruling, except in the cases established in the following
subparagraph.
d)
When it is proved that the judgment was unlawful as a direct consequence of a serious
violation of his duties committed by a judge, even though it is impossible to proceed due to a
supervening circumstance.
e)
When, following the judgment, new evidence or new facts supervene or are discovered
that, alone or together with those already examined during the proceedings, prove that the act
did not occur, that the person convicted did not commit it, or that the act committed falls under
a more favorable law.
f)
When a subsequent law declares that the act that was previously considered punishable
is no longer punishable or when the law that served as the grounds for the conviction has been
declared unconstitutional.
g)
When the judgment has not been delivered in keeping with due process or failed to provide
an opportunity for defense.
80.
Furthermore, articles 410 and 411 of the Code of Criminal Procedure established
that the request for review must be filed in writing before the competent court of
cassation. And, at that stage, it was not possible for the appellant to raise “matters that
had already been discussed and decided in cassation, unless they were based on new
reasons and new evidence.”
81.
On April 28, 2006, Law 8503 on “Opening of Criminal Cassation” was enacted
and under this several amendments were made to the legal framework for the remedy
of cassation contained in the Code of Criminal Procedure. This was published and
entered into force on June 6, 2006. First, new grounds were added to article 369 of the
Code of Criminal Procedure to the effect that “the judgment has not been delivered in
keeping with due process or failed to provide an opportunity for defense.”
82.
Second, and in relation to the scope of the examination made by the court of
cassation, Law 8503 incorporated article 449 bis to the Code of Criminal Procedure, and
this established:
Article 449 bis: Examination by the court of cassation. The court of cassation shall determine
the admissibility of the claims cited in the remedy and their grounds, examining the actions
and the records of the hearing, in order to evaluate the way in which the trial judges assessed
the evidence and substantiated their decision. If there are insufficient records to be able to
make this determination, the court may replicate in cassation the oral evidence of the trial that
it considers necessary to determine the admissibility of the claim, and shall evaluate it in
relation to the other actions.
It may also assess, directly, the written evidence that was presented during the trial.
83.
Lastly, Transitory Provision I of Law 8503 authorized “[a]nyone convicted of a
criminal act prior to this law who has been unable to file a remedy of cassation against
24