The assessment of the 'procedural fact' in negative conflicts of functional competence. Does the public prosecutor have decisive power?

Cass., sec. I, hearing date, 9/11/2023 (dep. 12/01/2024) no. 1569, pres. Boni, rel. Siani. Court of Cassation - first penal section - negative conflict of competence

Abstract

With the ruling in question, the first criminal section of the Supreme Court of Cassation confirms the pre-eminence of the criteria of impartiality of the functional jurisdiction by connection/of the principle of impartiality of the judge and of the criteria governing jurisdiction in proceedings concerning magistrates, on the limits/with respect to the temporal and procedural limits of the perpetuatio iurisdictionis. Whenever the decisions of the Court of Cassation present defects or omissions in the assessments, since, unlike the extraordinary appeals provided for in our legal system, there are no appeals for questions concerning juridictions. Rebus sic stantibus, in fact, points out the lacuna in the judge’s assessment of the procedural fact, in relation to some elements indispensable for determining the initial time of functional jurisdiction by connection and, vice versa, the exorbitance of the powers of the public prosecutor, in deciding the times and methods of registration to determine jurisdiction. These critical issues, capable of going beyond even the preclusive effects of res judicata, create discrepancies with the guaranteed rules provided for in our legal system and represent a singular novum, to be re-proposed before the judge invested with jurisdiction by the Supreme Court of Cassation