Libro Tercero. Impugnaciones

Judicial decisions shall be appealable only through the means and in the cases expressly established. But only those who have a direct interest in the matter may appeal. When appropriate in the interests of justice, the Public Prosecutor's Office may appeal in favor of the accused. Civil parties may appeal only with regard to their interests. Defense counsel may appeal autonomously in relation to the accused.

To be admissible, remedies shall be filed under the conditions of time and manner determined by law.

If there is a defect or omission of form or substance, the tribunal shall inform the filing party thereof, granting a time limit of three days, counted from the notification to the appellant, to expand it or correct it, respectively.

Those who have filed an appeal may withdraw it before its decision, without prejudice to the other appellants or adherents, being liable for costs.

Defense counsel may not withdraw appeals filed by him without prior consultation and express acceptance of the accused person or accused, subsequent to the filing of the appeal.

The accused person or the accused, in turn, may withdraw appeals filed by his defense counsel upon prior consultation with the latter, who shall record it in the respective act.

When in proceedings there are several co-accused persons or co-accused, the appeal filed in the interest of one of them shall benefit the others, provided that the grounds on which it is based are not exclusively personal.

The appeal of the third party civil defendant shall also benefit the accused person or accused, unless its grounds concern merely civil interests.

The filing of an appeal shall suspend execution only in crimes of grave social impact and dangerousness of the indicted person, unless expressly provided otherwise or the reasonable indicia of criminality have been dissipated.

The motion for reconsideration shall lie against decisions issued without a prior hearing, and which are not appealable, so that the same tribunal that issued them examines the matter again and issues the corresponding decision.

It shall be filed by reasoned writing, within the time limit of three days, and the tribunal shall decide it outright, within the same time limit.

The decisions issued during the course of the trial may be appealed by the parties only through reconsideration thereof. In the debate, the appeal shall be filed orally and shall be processed and decided immediately, without suspending it, to the extent possible.

Reconsideration during the trial is equivalent to the annulment protest referred to by the special appeal in the event that the tribunal does not decide the matter in accordance with the appeal filed.

Orders issued by first-instance judges deciding the following are appealable:

1)Conflicts of jurisdiction.

2)Impediments, excuses and recusals.

3)Those that do not admit, deny or declare abandoned the intervention of the adherent complainant or the civil plaintiff.

4)Those that do not admit or deny the intervention of the third-party defendant.

5)Those that authorize abstention from the exercise of criminal action by the Public Prosecutor's Office.

6)Those that deny the taking of anticipatory evidence.

7)Those that declare the conditional suspension of criminal prosecution.

8)Those that declare the dismissal of proceedings or closure of the proceedings.

9)Those that declare pretrial detention or the imposition of substitute measures and modifications thereof.

10)Those that deny or restrict liberty.

11)Those that set a time limit for the preparatory procedure; and

12)Those that decide defenses or obstacles to criminal and civil prosecution.

13)Orders in which lack of merit is declared.

Final orders issued by the enforcement judge and those issued by peace judges relating to the opportunity criterion are also appealable with suspensive effect.

The judgments issued by the first instance judges that resolve the abbreviated procedure contained in Book Four on Special Procedures, Title I, of this Code are appealable.

The appeal shall be filed before the judge of first instance, who shall forward it to the corresponding chamber of the court of appeals.

The appeal shall be filed in writing, within the term of three days, with express indication of the ground on which it is based, under sanction of inadmissibility, if the appellant does not correct in their brief the defects or omissions in the form established in this Code.

All appeals shall be granted without suspensive effect on the procedure, except those of the decisions which by their nature clearly prevent the judge of first instance from continuing to hear the matter without a situation susceptible to annulment arising.

Except in the special cases indicated in this Code, the decision shall not be executed until it is decided by the superior tribunal.

The appeal shall allow the appellate tribunal to take cognizance of the proceedings only as to the points of the decision to which the grievances refer, and shall allow the tribunal to affirm, reverse, modify or supplement the decision.

Once the appeal has been granted and the notifications have been made, the original proceedings shall be forwarded, no later than the first working hour of the following day.

Upon receipt of the proceedings, the tribunal shall decide within a time limit of three days and, with certification of what was decided, shall return the proceedings immediately.

When it concerns an appeal of a judgment under abbreviated procedure, a hearing shall be set within a time limit of five days from receipt of the case file for the appellant and the other parties to present their arguments. They may also do so in writing. Once the hearing is concluded, the tribunal shall proceed to deliberate and shall issue the corresponding judgment.

When the corresponding judge has denied the appeal, where such appeal lies, whoever considers himself aggrieved may resort by complaint before the appeal tribunal within three days of notification of the denial, requesting that the appeal be granted to him.

Once the complaint has been filed, a report shall be required from the respective judge, who shall issue it within twenty-four hours. The president shall also request the sending of the proceedings when he deems it necessary.

The complaint shall be decided within twenty-four hours of receipt of the report and the proceedings, where applicable. If the appeal is dismissed, the proceedings shall be returned to the tribunal of origin without further procedure. Otherwise, the appeal shall be granted and shall proceed as prescribed for the appeal.

In addition to the cases provided for, a special appeal may be filed against the judgment of the Sentencing Tribunal or against the decision of that tribunal and that of enforcement which terminates the action, the penalty or a security and correction measure, makes their continuation impossible, prevents the exercise of the action, or denies the extinction, commutation or suspension of the penalty.

The special appeal may be filed by the Public Prosecutor's Office, the adhesive complainant, the accused or their defense counsel. The civil plaintiff and the civilly liable party may also file it, in the part corresponding to them.

Whoever is entitled to file the special appeal and has not done so may adhere to the appeal granted to another, within the summons period before the competent tribunal. The act shall contain all the other requirements required for the filing of the appeal.

The special appeal shall be filed in writing, with a statement of grounds, within the ten-day time limit before the tribunal that issued the decision under appeal.

The appellant shall indicate each ground separately and, after the expiry of the time limit for the appeal, may not invoke any other different ones, and shall specifically cite the legal provisions that the appellant considers erroneously applied or unobserved and shall specifically state what application is sought.

The special appeal may only be invoked when the judgment contains any of the following defects:

1)On the merits: non-observance, improper interpretation or erroneous application of the law.

2)On form: non-observance or erroneous application of the law constituting a defect of the procedure. In this case, the appeal shall only be admissible if the interested party has timely requested its correction or made a protest for annulment, except in the cases of the following article.

No prior protest shall be necessary when the non-observance or erroneous application of the provisions concerning:

1)The appointment and capacity of the judges and the composition of the tribunal.

2)The absence of the Public Prosecutor's Office at the trial or of another party whose presence is provided for by law.

3)The intervention, assistance and representation of the accused at the trial, in the cases and forms established by law.

4)The publicity and continuity of the trial, except for authorized grounds for closed proceedings.

5)Defects in the judgment.

6)Manifest injustice.

The special appeal tribunal shall hear only the points of the impugned judgment expressly challenged in the appeal.

If the appeal is sustained on substantive grounds, it shall annul the appealed judgment and render the appropriate judgment.

If it is based on formal grounds, it shall annul the judgment and the impugned procedural act and send the file to the respective tribunal for correction. Thereafter, the trial tribunal shall again render the corresponding decision.

When the decision has been appealed only by the accused or by another person in favor of the accused, it may not be modified to the detriment of the accused, except where the grounds refer to civil interests.

When that relating to civil liabilities is challenged, the fixed amount may not be modified or revoked against the appellant, unless the opposing party has requested it.

Once the appeal has been filed, the proceedings shall be remitted on its own initiative to the competent tribunal on the business day following notification to all the parties, summoning them to appear before said tribunal and, where applicable, to establish a new place to receive notifications, within the fifth day following notification.

The accused may request the appointment of a court-appointed defense counsel to pursue the appeal before the competent tribunal, a right about which the accused shall be instructed and expressly questioned at the time of notification. Defense counsel may request that a court-appointed defense counsel be appointed as substitute when the trial has been held in a territory different from that of the seat of the tribunal competent for the special appeal. Once that power has been exercised, the president of the tribunal shall provide the replacement.

If the appellant fails to appear within the summons period, the tribunal shall declare the appeal deserted on its own initiative, returning the proceedings where applicable.

Adhesion shall not survive if the filed appeal is declared deserted, except in the case of the private accuser.

Upon receipt of the proceedings and expiration of the prescribed time limit, the tribunal shall examine the appeal filed and the joinders to verify whether they comply with the requirements of time, argumentation, substantiation and protest. The foregoing in order to decide on the formal admission of the appeal. If it declares it inadmissible, it shall return the proceedings.

Once the appeal is admitted, the proceedings shall remain for six days in the office of the tribunal so that the interested parties may examine them.

Once that time limit has expired, the president shall set a hearing for the debate with an interval of not less than ten days, notifying all the parties.

The hearing shall be held before the tribunal, with the parties who appear. The floor shall be granted first to the appellant's lawyer. If there are several appeals, the prescribed order shall be maintained. The lawyers for those who did not file the appeal may speak. No replies shall be admitted. Those who participate in the discussion may leave brief written notes on their arguments with the tribunal.

The accused shall be represented by his defense counsel, but he may attend the hearing and, in that case, he shall be granted the floor last. Where the appeal was filed by him or by his defense counsel, and the latter fails to appear, the tribunal shall proceed to replace him.

The parties shall be permitted to substitute their participation in the hearing with a written argument submitted before the day of the hearing.

When the appeal is based on a defect of procedure and the manner in which the act was carried out is disputed, as opposed to what is stated in the record of the debate or in the judgment, evidence may be offered for that purpose.

The evidence shall be received at the hearing, in accordance with the rules governing the trial, insofar as pertinent.

Once the hearing is concluded, the tribunal shall proceed to deliberate. If due to the lateness of the hour or to the importance and complexity of the issues raised it should be necessary to defer deliberation and pronouncement, the tribunal shall reconvene in the courtroom and the president shall announce before the persons appearing the day and time of the hearing at which the judgment shall be pronounced, a date that may not exceed the time limit of ten days.

The judgment shall always be pronounced in a public hearing.

The judgment shall in no case rely on or refer to the evidence or the facts declared proven in accordance with the rules of sound reasoned evaluation. It may refer to them solely for the application of substantive law or when there is a manifest contradiction in the challenged judgment.

If the judgment upholds the appeal, based on the non-observance or erroneous application or improper interpretation of a legal provision, it shall finally resolve the case, rendering the corresponding judgment.

If the judgment is based on the non-observance or erroneous application of the law constituting a defect of the procedure, it shall annul the appealed decision in whole or in part and shall order the renewal of the proceedings by the competent tribunal from the corresponding moment.

Once the judgment is annulled, the judges who participated in its pronouncement may not act for a new ruling.

Errors of law in the reasoning of the challenged decision, which do not affect its operative part, shall be corrected even though they do not cause its annulment. In the same manner, material errors in the designation or in the computation of the penalties or of the security and correction measures shall be corrected.

During the processing of the appeal, the application of all the rules governing the liberty of the accused corresponds to the tribunal.

The tribunal shall immediately order the liberty of the accused when, as a result of its decision, the detention must cease.

Proceedings shall be conducted in accordance with these rules when an appeal is filed against:

1)The interlocutory decisions of the sentencing or execution tribunals that put an end to the action, to the penalty or to a security or correction measure, make it impossible for them to continue or prevent the exercise of the action.

2)The appeal relating to the civil action when the criminal part of the judgment is not appealed.

The procedure shall be modified as follows:

1)The filing brief shall state the grounds and the laws infringed. The appellant shall also designate a place to receive notifications within the perimeter of the tribunal.

2)The appellant shall not be summoned to appear before the competent tribunal, nor shall adherence be permitted.

3)The tribunal shall render judgment without debate, solely in view of the appeals filed, deciding, in the first place, on the formal admissibility of the appeal. The judgment shall be pronounced in writing, omitting the public hearing, within the prescribed time limit and shall succinctly state the grounds for the decision.

The appeal in cassation lies against final judgments or orders issued by the Chambers of Appeals that decide:

1)Special appeals from the rulings issued by the sentencing tribunals, or, when the trial is divided, against the decisions constituting the judgment.

2)Special appeals against orders of dismissal of proceedings issued by the sentencing tribunal.

3)Appeals against judgments issued by the judges of first instance, in cases of abbreviated procedure.

4)Appeals against decisions of the judges of first instance declaring the dismissal of proceedings or closure of the proceedings; and those deciding defenses or obstacles to criminal prosecution.

The appeal in cassation is granted in the interest of the law and justice and may be filed by the parties.

The appeal in cassation may be of form or of substance. It is of form when it concerns essential violations of the procedure. It is of substance if it refers to violations of the law that decisively influenced the operative part of the appealed judgment or order.

The appeal in cassation as to form lies only in the following cases:

1)When the judgment did not decide all the essential points that were the subject of the accusation as formulated, or that were contained in the arguments of the defense counsel.

2)If the judgment did not conclusively express the facts that the adjudicator deemed proven and the grounds of sound criticism taken into account.

3)When the contradiction between two or more facts deemed proven in the same decision is manifest.

4)When the decision refers to a punishable act different from that attributed to the accused.

5)When in the ruling of the sentencing tribunal or of the Appeals Chamber there has been lack of jurisdiction by reason of subject matter that had not been noticed.

6)If in the judgment the formal requirements for its validity have not been complied with.

The appeal in cassation on the merits lies only in the following cases:

1)When in the appealed decision an error of law was incurred in classifying the facts as criminal, when they are not.

2)When, the facts being criminal, an error of law was incurred in their legal classification.

3)If the judgment is a conviction, notwithstanding the existence of a circumstance exempting liability, or a well-founded ground for ordering the final dismissal of proceedings.

4)If the judgment treats as established a fact decisive for acquitting, convicting, mitigating or aggravating the penalty, without such fact having been held as proven in the sentencing tribunal.

5)If the decision violates a constitutional or legal provision through erroneous interpretation, improper application or failure to apply, when such violation has had decisive influence on the operative part of the judgment or order.

The Cassation Tribunal shall hear only the errors of law contained in the appealed decision. It is bound by the facts held as proven by the Sentencing Tribunal, and only in cases in which it finds a violation of a constitutional or legal norm may it order annulment and remand for due correction.

The appeal in cassation shall be filed before the Supreme Court of Justice within the time limit of fifteen days from notification of the decision giving rise to it, with a statement of the legal grounds authorizing it. It shall be deemed duly supported only when the articles and subsections authorizing the appeal are expressed in a clear and precise manner, indicating whether it is on grounds of form or substance. Likewise, the articles and subsections of the respective laws considered violated.

The appeal may also be presented, within the indicated time limit, to the tribunal that has issued the decision, which shall immediately forward it to the Supreme Court of Justice.

If the written filing of the appeal contains all the aforementioned requirements, the Supreme Court of Justice shall declare admissibility, shall request the case file, and shall set day and time for the hearing.

If the appeal is filed outside the fixed term or without complying with the foregoing requirements, the tribunal shall dismiss it outright.

The hearing shall be public, with summons to the parties. The accused may appoint specific defense counsel to appear at the hearing.

At the hearing, the relevant part of the appealed judgment or order and the dissenting votes shall be read and the floor shall be granted, in order, to the appellant and to the other parties. In any case, they may present their arguments in writing. The tribunal shall decide within fifteen days.

If the appeal in cassation is on the merits and is declared well-founded, the tribunal shall quash the challenged decision and decide the case in accordance with the applicable law and doctrine.

If the appeal is on form, the case shall be remanded to the corresponding tribunal to issue a new decision without the defects noted.

When, as a result of the cassation, the imprisonment of the accused must cease, his liberty shall be ordered immediately.

At any stage of the appeal, before judgment is pronounced, the party that filed it may withdraw it.

The simple errors in the reasoning of the challenged decision and the erroneous references to legal texts, when they have no decisive influence, shall not be grounds for cassation, but they shall be corrected, and any error in the computation of the penalty shall be rectified by the Cassation Tribunal.

In cases of application of the death penalty, the appeal may be filed without any formality, in writing or telegraphically, and the tribunal is obligated to analyze the appealed judgment in any of the cases in which the appeal is admissible. Within the fifteen following days, the appellant may explain in writing the grounds for the appeal.

Review to seek the annulment of the final criminal judgment, whatever tribunal may have rendered it, even in cassation, proceeds only in favor of the convicted person sentenced to any of the penalties provided for crimes or of the person on whom a security and correction measure has been imposed.

The following may seek review in favor of the convicted person:

1)The convicted person himself or the person to whom a security and correction measure has been applied, even when it has been executed totally or partially. If they are incapacitated, their legal representatives; and if they have died, their spouse, ascendants, descendants or siblings.

2)The Public Prosecutor's Office.

3)The execution judge in the case of retroactive application of a more lenient criminal law.

Review shall proceed when new facts or elements of evidence, alone or in connection with the means of evidence already examined in the procedure, are suitable to ground the acquittal of the convicted person or a less serious conviction, by application of a criminal provision other than that of the conviction, or another decision on a security and correction measure, essentially different from the previous one.

The following are special grounds for review:

1)The presentation, after the judgment, of decisive documents that were unknown, lost or that had not been incorporated into the procedure.

2)The demonstration that a decisive element of evidence, assessed in the judgment, lacks the assigned evidentiary value, due to falsity, invalidity, adulteration or forgery.

3)When the convicting judgment has been pronounced as a consequence of prevarication, bribery, violence or other fraudulent machination, whose existence was declared in a subsequent final ruling.

4)When the criminal judgment is based on a judgment that subsequently has been annulled or has been subject to review.

5)When, after the conviction, facts or elements of evidence arise which, alone or together with those already examined in the proceedings, make it evident that the act or a circumstance that aggravated the penalty did not exist, or that the convicted person did not commit it.

6)The retroactive application of a more benign criminal law than that applied in the judgment.

To be admissible, the review shall be filed in writing before the Supreme Court of Justice, with specific reference to the grounds on which it is based and to the applicable legal provisions. All documentary evidence invoked shall be attached at the same time, or the place or file where it is located shall be indicated.

When the demonstration of the ground sustaining the review does not arise from an irrevocable judicial judgment, the appellant shall indicate all means of evidence that prove the truth of his assertions.

Upon receipt of the challenge, the tribunal shall decide on whether it may proceed. It may, however, if the case so permits, grant a time limit to the challenger to complete the missing requirements.

The convicted person may designate defense counsel to maintain the review, a right of which he shall be instructed upon being notified of the first decision on the admissibility of the challenge. If the convicted person does not appoint defense counsel, the tribunal shall appoint defense counsel on its own initiative.

The death of the convicted person during the course of the review shall not hinder the continuation of the proceedings. If any of the persons with standing fails to appear after having been notified of the opening of the review, the procedure may continue with the assistance of defense counsel alone.

Immediately after the review is admitted, the tribunal shall give intervention to the Public Prosecutor's Office or to the convicted person, as applicable, and shall order, if necessary, the reception of the means of evidence offered by the petitioner or that it deems useful for ascertaining the truth.

The statements and reports shall be documented in a record, and the tribunal may delegate the instruction to one of its members.

Once the instruction is concluded, a hearing shall be scheduled for those participating in the review to express their views, and they may attach written pleadings substantiating their petition.

The tribunal, when ruling, shall declare the review without merit, or shall annul the judgment.

If it annuls the judgment, it shall remit the case to a new trial when the case so requires, or shall directly pronounce the final judgment.

The new trial shall be processed in accordance with the respective rules. The offer of evidence and the judgment shall not be based, regardless of the grounds that made the review admissible, on a new assessment of the same facts of the proceedings.

The judgment shall order, as applicable, the liberty of the convicted person, the total or partial restitution of the sum of money paid as a fine, the cessation of disqualification and of accessory penalties, with return of the effects of the confiscation that have not been destroyed, and of the applicable security and correction measure. It shall apply the new penalty or make a new computation, when in the new judgment a penalty is imposed on the convicted person, with credit for the time spent in imprisonment.

In the cases provided for, it shall also rule, upon request, on compensation. Reparation may only be granted to the convicted person, or after his death, to the heirs who request it.

The denial of review shall not prejudice the power to petition again, based on distinct elements; but the costs of a rejected review shall always be borne by the party who files it, except in the case of the Public Prosecutor's Office.