Article 60: Challenge of secretaries and collaborators. The same rules shall apply to secretaries
and those who fulfill any judicial assistance role in the proceedings. The court before which they
act shall verify briefly the grounds cited and shall take the corresponding decision. When the
recusal or challenge has been admitted, the official shall be separated from the matter.
Article 61: Effects. Once the recusal has occurred or the challenge has been admitted, any
actions taken by the separated official shall be ineffective. The disqualification of the officials
shall be final, even if, subsequently, the grounds for their separation cease to exist.
74.
All the foregoing articles remain in force, with the exception of article 58 which
was amended by article 1 of Law 8837 “Creation of the remedy of appeal against a
judgment, other amendments to the challenge regime, and implementation of new rules for
orality in criminal proceedings” of May 3, 2010, which has been in force since December
9, 2011.
75.
Regarding the relevant norms in relation to the right to a review of an adverse
judgment, article 443 of the Code of Criminal Procedure in force at the time of the facts
established that “the remedy of cassation shall be admissible when the ruling failed to
observe a legal principle or applied it erroneously. When the legal principle that is cited
as having been disregarded or applied erroneously constitutes a procedural defect, the
remedy shall only be admissible if the interested party has opportunely claimed its
rectification or has advised that he will appeal against it by cassation, except in cases
of absolute defects and those that occur after the debate has ended.”
76.
In addition, at the time of the facts, article 369, subsequently rescinded, listed
the causes that justified cassation, namely:
Defects in the judgment. The following defects in the judgment shall justify cassation:
a)
The accused has not been sufficiently identified;
b)
The detailed determination of the fact that the court found proved is lacking;
c)
It is based on probative means or elements that have not been incorporated into the trial
lawfully or incorporated by a reading in violation of the rules established in the Code;
d)
The reasoning of the majority of the court is lacking, is insufficient or is contradictory, or
the rules of sound judicial discretion were not respected in relation to decisive probative means
or elements;
e)
Essential elements of the operative paragraphs are absent;
f)
The date of the act is absent and it is not possible to establish this or, the signature of
one or more of the judges is missing and it is not possible to determine whether they have
taken part in the deliberation, except in cases of the exceptions established by law;
g)
Failure to respect the established rule for the deliberation and drafting of the judgment;
h)
Failure to respect the rules in relation to the correlation between the judgment and the
charges;
i)
Failure to respect or erroneous application of substantive law.
77.
With regard to the formal rules for filing the remedy of cassation, article 445 of
the Code of Criminal Procedure at the time of the facts established that this remedy
should be filed before the court that had delivered the contested judgment “by a
reasoned brief which shall clearly cite the legal provisions that it is considered have not
been respected or have been applied erroneously, and which sets out the claim,” and
that “no other reasons may be alleged outside of this opportunity.” Subsequently,
pursuant to former articles 446 and 447, the case file would be forwarded to the
competent court of cassation, which was responsible for determining the admissibility
of the request and the need to call for a hearing.
78.
Regarding the appellant’s possibility of presenting new probative elements,
article 447 in force at the time of the facts, authorized the court of cassation to order
the reception of new evidence when deciding on the admissibility of the appeal and to
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