application of Article 354 of the Criminal Code regarding the administration of public funds, 449
and ii) erroneous application of Article 77 of the Criminal Code, which provides for the concept
of an ongoing or continuing offense. 450
323. For his part, Mr. Martínez, listed 16 grounds in his cassation appeal against the
aforementioned conviction: i) and ii) were related to several violations of constitutional due
449
i) The appellant alleged that “the action for which he is investigated […] does not fall under the
assumption [...] of a public official who steals or misappropriates money or goods whose administration, collection
or custody has been entrusted to him by reason of his position […].” The Chamber stated that “the claim is
inadmissible […] the trial court states the basis for determining that the funds of the Social Compensation
Commissions and the Land Titling Program were public funds and their administrator was Jorge Martínez, criteria
with which this Chamber agrees […].Indeed, he turned out to be a public official, since he was appointed to the
Interinstitutional Commission that executed and coordinated the Social Compensation Program, as a
representative of the Second Vice-Presidency […]” Cf. Decision No. 2008-00232 of the Third Chamber of the
Supreme Court of Justice, of March 11, 2008, (evidence file, folios 33951 and 33952).
450
ii) The appellant alleged that “the duty of probity in public office, a public good that is protected against
the crime of embezzlement, was violated with the implementation of the new alternative system of payments,
which is a single action, but not with the release of the checks […].” The Chamber stated that “[t]he claim is
unsustainable. Although the imposition of the so-called 'alternative method of payment' is a single act, [...] the
damage to state assets resulting from this method of payment occurs through the drawing of each of the twelve
known checks, a situation that allows for the application of the continuous crime modality […] since it is evident
that these actions pursued a single objective: the diversion of the final amount already indicated, which was
carried out by means of transfers at different times, all approved and followed by the defendant […]” Cf. Decision
No. 2008-00232 of the Third Chamber of the Supreme Court of Justice, of March 11, 2008, (evidence file, folio
33955).
101