The curious proposal to transfer jurisdiction to the Public Prosecutor’s Office: critical reflections on the alternative interpretation of art. 385 of the Code of Criminal Procedure

Abstract

Article 385 of the Criminal Procedure Code authorizes the judge to hand down a conviction in unconditional or conditional criminal actions, even if the Public Prosecutor’s Office has given its opinion in favor of acquittal. This legal command has been increasingly criticized by some scholars, who support an alternative interpretation according to which the judge could not hand down a conviction after the Public Prosecutor’s Office has given its opinion in favor of acquittal. This article analyzes the main arguments put forward by the defenders of the thesis in question. It then presents arguments that have been disregarded in the debate, both constitutionally and legally. Finally, it concludes that the thesis analyzed lacks legal support.