324. From the analysis of decision No. 2008-00232, it is clear that the Third Chamber
conducted a detailed analysis of the factual and legal arguments made by the appellant,
inasmuch as it compared the facts invoked by that party against those taken as proven by
the trial court, and analyzed the sufficiency of the evidence and the correct application of the
law by the latter.
B.3.2. Motion for review
325. Subsequently, Mr. Martínez filed a motion for review of his conviction of July 17, 2007.
In the sole plea, he alleged that the reasons given for his sentence were flawed, inasmuch
as: “a) the 19-year prison term imposed by the trial court is not consistent with the
rehabilitative objective of the sanction; b) the principle of proportionality, reasonableness,
equality and suitability of the punishment was overlooked […] and, based on assessments
made of him at the prison where he [is] being held, the purpose [of the sentence] has already
been achieved, after eight years of imprisonment, and therefore [...] it is disproportionate;
c) in determining the sentence, the [trial] court violated the right to asylum [...], and d) [...]
violation of the rules governing continuing offenses, specifically Article 77 of the Criminal Code
[...which] states that the sentence imposed, in the case of a continuing offense, may be
increased by a further amount, which does not imply that the minimum and maximum
sentences are doubled, as erroneously interpreted [and he] thus requests [...] that a lower
sentence be imposed on him. 466
326. On August 29, 2012, in decision No. 2012-001297, 467 the Third Chamber declared the
said proceeding inadmissible, stating in relation to points a), b) and c) that, according to
Article 411 of the CCP: “When the claim has been filed outside the hypotheses that authorize
it or is manifestly unfounded, the court, ex officio, shall declare it inadmissible. [...] It shall
not be admissible to raise, by way of review, matter that have already been discussed and
settled through an appeal or in cassation […]. The arguments made by Jorge Martínez
Meléndez, referring to the grounds for the sentence, are based on personal assessments that
do not contain legal criteria to be considered, since aspects such as the fact that the sentence
has already served its rehabilitative purpose, that he was given a longer sentence than other
persons tried for the same crime, […] are aspects that have no place in this venue, since they
do not fall within the scope of the review proceeding. [...] In addition, the grounds for the
penalty issued by the trial court were already known and assessed by this Chamber [in
cassation], in the decision [...] of March 11, 2008.”
327. Regarding the way in which the trial court applied the penalty for the continuing
offense, that is, paragraph d) of the sole ground, the Third Chamber indicated that: “the claim
is manifestly inadmissible, since the constant jurisprudence of this Chamber has indicated
that […] Article 77 of the Criminal Code establishes that when concurrent crimes are of the
same type and affect patrimonial legal assets, provided that the agent pursues the same
purpose, the penalty established for the most serious offense shall be applied, increased by
up to the same amount. In various rulings of this Chamber, it has been stated that the correct
way to set the penalty when the existence of a continuing offense has been previously
established is as follows: the abstract penalty is taken as a parameter (in its lower and upper
limits) and doubled, and once this operation has been carried out, the Court sets the
Cf. Decision No. 2012-001297 of the Third Chamber of the Supreme Court of Justice of August 29, 2012
(evidence file, folio 34036).
467
Cf. Decision No. 2012-001297 of the Third Chamber of the Supreme Court of Justice of August 29, 2012
(evidence file, folios 34034 to 34044).
466
106